De Silva v The Queen

[2013] VSCA 339

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0005

SENAKA ROHAN DE SILVA	Appellant
	v
THE QUEEN
	Respondent

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JUDGES	PRIEST and COGHLAN JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 November 2013
DATE OF JUDGMENT	28 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 339
JUDGMENT APPEALED FROM	DPP v DeSilva (Judge Lawson, County Court of Victoria at Melbourne, 19 December 2012)

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CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel’s failure to adduce evidence of the appellant’s good character - Whether trial miscarried because of counsel’s failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Danos	Robert Stary Lawyers
For the Crown	Mr C T Carr	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
COGHLAN JA
LASRY AJA

Introduction

1. When this matter came on for hearing on 25 November 2013, the respondent properly and fairly conceded error had been shown and that the appeal should succeed on grounds 1 and 2.  The Court was of the view that the concession was properly made and should be acted upon.  Thus the Court made orders that the application for leave to appeal against conviction be granted; the appeal be treated as instituted instanter and allowed; the convictions and sentences be set aside; and there be a new trial.

1. These are the Court’s reasons for those orders.

Convictions and sentence

1. On 11 September 2012, following a ten day trial, the appellant was found guilty by a jury in the County Court of two charges of sexual penetration of a child under 16[1] (charges 1 and 9), and five charges of indecent act with or in the presence of a child under 16[2] (charges 2, 5, 10, 11 and 13).  All verdicts, save for that on charge 13, were by a majority.  Directed verdicts of acquittal were entered on six charges (charges 12, 14, 17, 18, 19 and 20).[3] 

   [1]Crimes Act 1958, s 45(1).

   [2]Crimes Act 1958, s 47(1).

   [3]Criminal Procedure Act 2009, s 241(2)(b).

1. The jury were unable to reach verdicts on 14 charges (charges 3, 4, 6, 7, 8, 15, 16 and 21 to 27).  A Notice of Discontinuance with respect to those charges was filed on 17 September 2012.[4]

   [4]Criminal Procedure Act 2009, s 177(1)(b).

1. On 19 December 2012, the trial judge imposed a total effective sentence of eight years and six months’ imprisonment upon which she fixed a non-parole period of six years.

Overview

1. The offences were alleged to have occurred on various occasions between 16 December 1997 and 31 January 2000.  ML, the complainant, was aged between 9 and 12 years during that period, and the appellant was aged 44 to 46.  The appellant was a friend of ML’s father.  They had regular contact through their work and through mutual membership of a suburban cricket club.  Their two families often socialised.  They were both of Sri Lankan origin and were of the Catholic faith.   ML referred to the appellant as ‘uncle’, which she said was a mark of respect for an elder in her culture.   There was an arrangement between the families where ML’s father, the appellant, and the appellant’s wife, would take turns collecting the children from school.  ML went to school with the appellant’s son, who was one grade above her.  She claimed that sometimes the appellant collected his son and ML and took them to a suburban cricket ground so that his son could attend cricket practice.   There was also ongoing contact between the appellant and ML at the cricket club during training and matches.  Apart from the evidence going to the charged offences, evidence was led of many uncharged acts (for the purposes of both context and tendency).

1. On 10 February 2000, ML, then aged 11 years, made a VATE[5] statement to police.  It did not result in charges being laid at that time.  At trial, ML adopted the VATE as a true, but incomplete, account of relevant events.  In it she stated that at the Christmas party in December 1997, she was walking past when the appellant called her and dragged her into the toilet, locked the door, and touched her vagina and breasts (over her clothes in each case) and kissed her on the mouth.  The appellant told her not to tell anyone.  He also said that he loved her.  ML unlocked the door from the inside, and a female adult, MS, saw her crying as she came out of the toilet.  She did not say anything to MS that night, but the next day she told MS and MS’s sister, and the appellant’s wife, what had happened.  They cried, and told ML not to tell anyone.  In the VATE, ML described similar events happening continuously thereafter at various places including parties at friends’ houses, at the cricket club, and at her house, until as recently as 10 January 2000.  She described a pattern of behaviour where the appellant would touch her vagina or breasts above her clothes and kiss her.  This occurred about thirty times.

   [5]Video and Audio Taped evidence.

1. To explain the apparent failure of ML in the VATE to give a full account of the appellant’s sexual predations upon her, the prosecution led evidence from Dr Teresa Flower, a child and adolescent psychiatrist, as to the process of disclosure of sexual assault allegations by children and the reasons why children may not make full allegations initially. 

1. In his defence, the appellant gave evidence denying any sexual impropriety with ML.  He also gave evidence that he was not present on various occasions when ML alleged that sexual contact had occurred.  The appellant’s son gave evidence that the appellant never collected him and ML from school; never took him to cricket practice; and he never saw ML at cricket practice. 

The charges

1. Between 16 and 18 December 1997, the victim and the appellant were at a party hosted by a mutual friend in Ferntree Gully.  ML was approximately nine years of age.  She gave evidence that at some stage during the party she noticed the appellant winking and licking his lips. At approximately midnight ML went to the toilet which was located in the bathroom.  The appellant followed her into the toilet and shut the door.  ML was scared and confused. The appellant kissed ML and pulled her underwear down.  He inserted one finger into her vagina and moved it in and out (charge 1 – sexual penetration of a child under 16). The appellant’s erect penis was exposed and he grabbed ML’s hand and made her touch it and rub it up and down (charge 2 – indecent act with or in the presence of a child under 16).  He also masturbated in the presence of ML and ejaculated (charge 5 – indecent act with or in the presence of a child under 16).  ML gave evidence that she was crying during this incident, and that when there was a knock at the door the appellant covered her mouth and told her not to tell anyone as no one would believe her and he would hurt her.  The next day, ML disclosed to the host of the party and a number of other women that the appellant had touched her.  It will be noted that the jury were unable to reach verdicts on charges 3 and 4 – which were allegations respectively of lingual and penile penetration of ML’s vagina – arising out of the same incident as charges 1, 2 and 5.

1. On 16 October 1999, ML attended a party at the appellant’s home. There was a marquee erected in the backyard.  ML gave evidence that during the evening she went inside the house.  The appellant took her into a toilet and kissed her and digitally penetrated her (charge 9 – sexual penetration of a child under 16).  He also exposed his erect penis and made ML rub it until he ejaculated (charge 10 – indecent act with or in the presence of a child under 16).

1. Between 21 December 1998 and 31 January 2000, ML was at the cricket club, where a  Christmas function was being held.  The appellant took ML into the equipment cage and kissed her and made her touch his penis (charge 11 – indecent act with or in the presence of a child under 16).  (There was also a charge of sexual penetration, charge 12, arising out of the same incident.  It resulted in a directed verdict of acquittal in circumstances where ML had failed to give any evidence about it.)

1. On another occasion, between 1 December 1998 and 24 December 1999, ML was again in attendance at the cricket club. The appellant took her into the kitchen area of the pavilion and touched her vagina over her clothing (charge 13 – indecent act with or in the presence of a child under 16).  (Charge 14 arose out of the same incident.  It was alleged that the appellant made ML touch his penis.  Since she gave no evidence of it, however, there was a directed verdict of acquittal on that charge.)

1. The jury were, as we have said, unable to reach verdicts on a further 14 charges arising out of five other incidents.  Thus, charges 6, 7 and 8 were alleged to have occurred at the cricket club between 1 October and 31 October 1998.  They involved allegations of digital penetration of ML’s vagina (charge 6), fondling of the appellant’s penis (charge 7) and ML performing oral sex on the appellant to the point of ejaculation into her mouth (charge 8).  Charges 15 and 16 were also said to have occurred at the cricket club, between 1 December 1998 and 24 December 1999.  They involved respectively lingual and digital penetration of ML’s vagina.  Charges 21 and 22 involved respectively penile-oral, penile-vaginal and penile-oral penetration between 1 January and 31 January 2000 at the cricket club.  During the same period, the offences in charges 23 and 24 were said to have occurred at a wedding anniversary party.  They involved digital-vaginal penetration (charge 23) and ML touching the appellant’s penis (charge 24).  Charges 25, 26 and 27 also related to the same time period.  They were said to have occurred after the appellant took ML to her home after school, and involved lingual, digital and penile penetration.

1. Apart from the directed verdicts of acquittal already referred to (charges 12 and 14), verdicts of not guilty by direction were entered on charges 17, 18 and 19, which were alleged to have occurred between 1 December and 24 December 1999, and involved respectively penile-vaginal, penile-oral and digital-vaginal penetration.  ML gave no evidence relevant to these charges.  Nor did she give any evidence relevant to charge 20, which related to penile-oral penetration, so that a verdict of acquittal was also entered on that charge.

Grounds of appeal

1. The Notice of Appeal originally filed contained a ground claiming, in effect, that the verdicts were unsafe and unsatisfactory, under the cover of which inconsistency between verdicts was also asserted. 

1. When the application for leave to appeal first came on for hearing before this Court on 10 October 2013, it became clear that there were real issues as to whether the appellant’s trial had been competently conducted.  Counsel sought, and was granted, an adjournment; and leave was granted to file further material, including further grounds of appeal.  In the result, the appellant sought to agitate two further grounds – first, that the appellant’s trial miscarried ‘as his character was not put in issue before the jury’; and, secondly, that his trial miscarried ‘as trial counsel failed to object to the evidence or parts of the evidence of the expert Dr Flower’.

1. On 25 November 2013, when the matter again came before the Court, the Crown conceded that the two new grounds should succeed.  Counsel for the appellant then abandoned the ‘unsafe and unsatisfactory’ ground, which had become ground 3.

Failure to lead evidence of good character

1. Affidavit material filed by the appellant demonstrates that there was a wealth of character evidence that the appellant had available to call, both as to his character generally and ‘in a particular respect’ (that is, the absence of any reputed sexual misbehaviour with children).[6]  Inexplicably, however, the legal practitioner acting as counsel on the appellant’s trial did not seek to lead evidence of the appellant’s good character.

   [6]Evidence Act 2008, s 110. See Bishop v The Queen [2013] VSCA 273.

1. In a perspicuously fair written submission, the respondent observed that ‘it is difficult to justify the failure to raise character as a legitimate forensic choice’.  Moreover, the respondent submitted that, ‘[i]n the context of this trial, it cannot be said that such evidence would not have made a difference to the jury’s assessment of the appellant’s credibility, or of the likelihood of the alleged conduct’.  We agree.

1. Although generally an accused person is bound by the conduct of his or her counsel at trial,[7] and that ordinarily it matters not that an appellant’s trial might have been differently or more skilfully conducted,[8] nonetheless the authorities recognise that there are cases where a substantial miscarriage of justice may be found to have occurred where counsel has failed to call evidence of the accused’s good character.[9]  This is, in our view, such a case.

   [7]Re Knowles [1984] VR 751, 766–7; R v Birks (1990) 19 NSWLR 677, 685; TKWJ v The Queen (2002) 212 CLR 124.

   [8]Ali v The Queen (2005) 214 ALR 1, 5 [12] (Gleeson CJ).

   [9]TKWJ v The Queen (2002) 212 CLR 124, 134–5 [31]–[33] (Gaudron J), 149–50 [79]–[80] (McHugh J); D v R (1996) 86 A Crim R 41; R v Sharma [2011] VSCA 356.

1. We can discern no legitimate forensic reason for failing to call evidence of the appellant’s good character.  Although other evidence was called either side, this was very much a case of oath against oath.  The appellant had available to him powerful character evidence, which bore not only on the unlikelihood of his commission of the offences but also on the credibility of his evidence denying his guilt.[10]  It may well have made a difference to the jury’s assessment of the appellant’s credibility, and hence of his guilt.

   [10]Bishop v The Queen [2013] VSCA 273, [36].

1. Our impression that this is so is fortified by the course that the trial took.  The jury retired in the morning of 5 September 2012.  In the afternoon of the next day, 6 September 2012, the jury asked, ‘What constitutes a hung jury? If a unanimous decision appears unattainable are there any additional directions the court can provide?’.  The judge then gave a ‘Black’ direction.[11]  During the afternoon of the following day, Friday 7 September 2012, the jury sent a note asking for a transcript of the judge’s charge, somewhat enigmatically saying, ‘An impasse exists in relation to the acceptance of the inference of the oral evidence and the absence [of] “hard evidence”.  Put another way, there is too much grey and very little black and white from both points of view’.  After an intervening weekend, on the morning of  Monday 10 September 2012, the judge gave a further direction to the jury about assessing witnesses, and she provided the jury with a DVD of her charge.  Shortly before lunch, the trial judge informed the jury that she would accept majority verdicts.  The next afternoon, the jury asked a further question, ‘Does the jury need to reach a unanimous or majority verdict for both guilty or not guilty?’.  Not long afterwards, the jury indicated that they had a verdict on some charges, but there was no prospect of reaching verdicts on others.  Majority verdicts were then taken on charges 1, 2, 5, 9, 10 and 11, and a unanimous verdict on charge 13.

   [11]Black v The Queen (1993) 179 CLR 44.

1. For these reasons we were of the view that the first of the additional grounds had to be upheld.

Failure to object to the evidence of Dr Flower

1. As we have said, evidence was called from a consulting adolescent and child psychiatrist, Dr Teresa Flower, in an endeavour to explain why ML’s VATE conducted in 2000 did not contain many of the serious allegations later levelled at the appellant.

1. Pursuant to s 108C of the Evidence Act 2008, evidence is admissible from a person with ‘specialised knowledge’ with respect to ‘child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse)’.[12]  The purpose of such evidence is ‘educative’, so as to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and so as therefore to be better able to evaluate it.[13]  Such evidence bears on the credibility of the complainant.

   [12]See also s 79.

   [13]MA v The Queen [2013] VSCA 20, [23].

1. In this case, however, the evidence of Dr Flower strayed – without objection – into areas in which it had not been shown that she was qualified to express an opinion.  Those areas included the tenets of the Catholic faith (and its possible effects on non-disclosure), and aspects of Sri Lankan culture.  Moreover, despite the fact that she had not interviewed ML, Dr Flower was permitted to speculate about what may have been behind ML’s non-disclosure.  As the Crown acknowledged in written submissions, ‘[t]he evidence of Dr Flower went beyond the general educative role of explaining why a complainant might not provide a complete account when she first disclosed her abuse’.   Further, the respondent conceded that the appellant could have objected successfully to parts of Dr Flower’s evidence; and, had he done so, her evidence would have been restricted to an ‘educative’ role.

1. The failure to object to evidence does not carry with it the necessary corollary that justice has miscarried.  If the failure is explicable as a legitimate forensic choice, then generally an appellant will be bound by counsel’s choice.[14]  In this case, however, a reading of the transcript leaves one with the distinct impression that counsel’s failure to object was not the exercise of an informed forensic choice, but rather was borne of inexperience and a lack of awareness of the limits the law places on the admissibility of evidence of the kind sought to be elicited from Dr Flower. 

   [14]Ali v The Queen (2005) 214 ALR 1, 5 [9] (Gleeson CJ); 7 [23] (Hayne J); 22–3 [98] (Callinan and Heydon JJ).

1. Had the second added ground – which claimed that trial miscarried as trial counsel failed to object to the evidence or parts of the evidence of the expert Dr Flower – stood alone, we doubt that we would have concluded that there had been a substantial miscarriage of justice.  When considered with the failure to call evidence of good character, however, in our opinion the conclusion was inescapable that the convictions could not be permitted to stand.

Conclusion

1. For these reasons we made orders which resulted in the quashing of the appellant’s convictions and sentences and we ordered that a new trial be had.