Derek Farrod (a pseudonym)[1] v The Queen
[2021] VSCA 199
•19 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0255
| DEREK FARROD (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 July 2021 |
| DATE OF JUDGMENT: | 19 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 199 |
| JUDGMENT APPEALED FROM: | [2020] VCC 260 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Conviction – Application for Extension of time – One charge of sexual penetration of a child under 16 – Whether guilty verdict unsafe and unsatisfactory – Whether miscarriage of justice caused by failure to adduce evidence available at the time of trial – Deliberate decision not to adduce evidence at trial – Informed forensic decision -Criminal Procedure Act 2009 ss 276, 313, 370, Evidence Act 2008 s 38.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Fitzgerald | Doogue & George Defence Lawyers |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Niall JA.
KYROU JA:
I also agree.
NIALL JA:
Following a trial in the County Court, the applicant was convicted of a single charge of sexual penetration of a child under the age of 16.[2] The applicant seeks an extension of time in which to commence an application for leave to appeal against his conviction.[3]
[2]Crimes Act 1958 s 45(1). For offences committed prior to 1 July 2017, s 45 contained the offence of sexual penetration of a child under 16. The offence is now set out in s 49B of the Crimes Act 1958.
[3]Criminal Procedure Act 2009 s 313.
The complainant was, at the time of the offence, 14 years of age. She was the cousin of SL, who was at the time married to the applicant. The applicant was 22 years old. The complainant said the offence occurred at the applicant’s house when SL was away in Sydney at a beauty pageant.
The evidence in support of the charge largely comprised the account given by the complainant in a VARE interview.[4] In addition, the prosecution relied on a number of text messages exchanged between the applicant and the complainant that the prosecution said demonstrated an intimate relationship between the two of them. The text messages that were admitted into evidence were a subset of a larger number of texts messages between the applicant and complainant that was available to the parties and contained within the depositions.
[4]‘Video and audio recorded evidence’. See Criminal Procedure Act 2009 s 367; Criminal Procedure Regulations 2020, reg 12.
For present purposes, a critical fact is that the complainant said that the text messages were first sent by the applicant after the incident occurred. That was her position in the VARE, in a voir dire, and in her evidence at a special hearing.[5] It was not challenged by either the prosecution or defence. In fact, there was evidence available to the parties, but not adduced at trial, in the form of call records that showed text communications (but not their content) initiated by the applicant and sent to the complainant before the incident. Further, one of the text messages contained in the depositions bore the date 11 March 2016 being the day before the incident.
[5]Criminal Procedure Act 2009 s 370.
The applicant contends this material, which was not adduced at trial, showed that communications were exchanged before the incident and therefore the complainant’s evidence was patently untruthful and could not be accepted. He invites this Court to take that material into account and conclude that the verdict is unreasonable or cannot be supported having regard to the evidence.[6]
[6]Criminal Procedure Act s 276(1)(a).
As will be explained, the proposed ground of appeal proceeds on a misconception. The question whether a verdict is unreasonable, in the sense used in s 276(1)(a) of the Criminal Procedure Act 2009, is to be assessed by reference to the evidence given at trial. It is not open for the applicant to rely on evidence that was not adduced at trial in order to make out the ground. The proposed ground has no prospects of success. As it would be futile to grant the application for an extension of time it must be refused.
The prosecution case
On the relevant date, which the evidence disclosed was Saturday 12 March 2016, SL went to Sydney to attend a beauty pageant. The complainant came to stay the night at the applicant’s home and help with the applicant’s two young children while the applicant was at work.[7] In fact the applicant did not work that night and he remained at home.
[7]The evidence disclosed that the complainant had also stayed at the applicant’s home on the night of Friday 11 March, however SL was still present. SL left for Sydney on the morning of 12 March.
The complainant said that after the children went to bed she lay on a mattress in the living room. The applicant sat on the couch in the same room playing PlayStation. According to the complainant’s account, the applicant said to her that it was a ‘bit uncomfortable up here’ and then moved to sit next to her on the mattress.
The complainant said that the applicant turned the light off, placed his hand on her leg, and put his arm around her. The applicant then said that there was nothing wrong and told the complainant to roll over and then kissed her on the lips. At about that time, the applicant received a phone call from SL, and the complainant heard him tell her that she (the complainant) had gone to bed in a bedroom. After completing the call, the applicant asked the complainant whether she had ‘wandering hands’ to which the complainant responded that she did not know what he meant. He said ‘I’ll show you’ and then removed her pants. The complainant said that ‘this is wrong because I’m younger than your sister’. The applicant then rolled on top of the complainant and inserted his penis into her vagina.
In her VARE, the complainant said that she was very close to her cousin and was going to her house every weekend. She said that the applicant was ‘never really there’, but at night time he came home, had a shower and went to bed. The complainant said that after the incident the applicant had got her phone number from SL and messaged her saying ‘I’m sorry for last night’ or something like ‘are you ok?’ She said that she and the applicant did not talk after the incident, but a few weeks later they started talking often and that he had sent messages three or four times a week in which he said that he loved her. The complainant identified a series of text messages which she said had been exchanged between her and the applicant after the incident. The complainant’s account in the VARE was that all of the messages were exchanged after the incident, and that before the incident she had little to do with the applicant.
Before coming to the detail of the text messages and the cross examination of the complainant, which occurred at a special hearing, it is convenient to summarise in a brief narrative form, the balance of the evidence.
In March or April 2016, the applicant, SL and their children moved to Townsville. The complainant went with them by car. Along the way they went camping near Bairnsdale and the applicant, complainant and SL drove together in a car. SL’s phone was broken and she asked to use the complainant’s phone. During the trip, SL saw the applicant take the complainant’s hand. A little later, SL used the complainant’s phone to send a text to the applicant. When she typed in the applicant’s name, a series of messages exchanged between the complainant and the applicant appeared. SL took screen shots of the text messages and sent them to herself. It was these screen shots that the complainant identified in her VARE. SL confronted the complainant, asking her whether she had had sex with the applicant, which the complainant denied.
Subsequently, the complainant’s mother became aware of the texts and the complainant told her that the texts were between her and a boy from her school who shared the same first name as the applicant.
In around July 2017, SL sent a message on Facebook to the complainant asking if she had had sex with the applicant. By this stage, SL and the applicant had separated. The complainant denied that the applicant had had sex with her.
On 31 July 2017, SL attended a meeting with officers of the Department of Health and Human Services (‘DHHS’) who were concerned about her parenting of her two children. In that meeting, SL told the officers that the applicant had had sex with her cousin. The officers said that they would need proof, and the applicant left the meeting and telephoned the complainant. Part of that telephone call was recorded and a transcript given to the jury. In the recording, the complainant agreed that she had had sex with the applicant on one occasion.
Subsequently, the police were notified, and the applicant was charged. He participated in a record of interview in which he denied the allegations. He also denied that he had sent the text messages and told police that it would not surprise him if SL, who had access to his phone, had sent them.
The text messages
As already noted, in her VARE, the complainant identified a series of text messages, which were recorded by a number of screen shots taken by SL from the complainant’s phone. With the exception of one message which had the date 11 March on it, it is not possible from the text messages themselves to ascertain the date or chronological order in which they were sent.
Before trial, the prosecution gave notice of an intention to adduce additional evidence. The foreshadowed evidence comprised call charge records of the applicant’s phone that showed more than 1000 text messages between the applicant and the complainant’s phone in March and April 2016. 796 messages were sent by the applicant to the complainant in March and 1079 messages were sent in April. Apparently, five texts were sent by the applicant on 9 March, 153 on 11 March and 224 on 12 March. The evidence showed that messages had been sent but not their contents. The evidence was confined to records of the applicant’s phone and did not show the number of messages sent by the complainant to the applicant during this time.
At the commencement of the trial there was extensive discussion between the judge and the parties about the apparent inconsistency between the complainant’s evidence, which was that all of the text messages exchanged between her and the applicant occurred after the incident, and the call records that showed substantial communication between them occurred before 12 March. It was also noted that one of the screen shots had the date 11 March on it. The judge expressed his concern that to adduce the call records, which he said showed ‘an avalanche’ of communication, might swamp the jury and be highly prejudicial to the applicant. On the other hand, to the extent that the call records showed communication before 12 March, they were inconsistent with the complainant’s account that there had been no significant contact between her and the applicant before the incident, which she said had come out of the blue, and this potentially undermined her credibility.
The forensic position of the applicant was further complicated by the fact that, in his record of interview, he denied sending any text messages to the complainant and instead suggested that they had been sent from his phone by SL. In that respect the applicant’s counsel told that judge that the applicant’s position remained that he had not sent any of the messages.
In order to ensure clarity in the evidence of the complainant on this topic, the judge proposed that she would be called on a voir dire and asked about when the messages had first been received. No objection was taken to that course. On the voir dire, the complainant gave unsworn evidence. She was asked by the judge whether the messages she referred to in her VARE were sent after the incident and she said that they were, and that there had not been any communication by text beforehand. She added that it was the next day, being 13 March, that the applicant started messaging her. She was not questioned by the parties on the voir dire.
Throughout the discussion, the prosecution position was made clear. The prosecutor relied on the VARE, would seek to tender some of the screen shots to establish the existence of a relationship between the applicant and the complainant, but would not tender the call records and would not seek leave to cross examine the complainant under s 38 of the Evidence Act 2008 in order to put to the complainant that the communications commenced before the incident. In relation to this last aspect, the judge also made clear that he would not be minded to permit the prosecution to cross examine the complainant under s 38.
Following that discussion, and shortly before the special hearing, the parties agreed on edits to the VARE and the prosecutor identified the text messages that she proposed to adduce from the complainant during the special hearing. In respect of the message that referred to 11 March, it was agreed that the screen shot would be tendered with that date removed.
At that point, counsel for the applicant told the judge that he had undertaken a long conference with the applicant and that he would be asking the complainant very few questions about the texts or their provenance and would not be going to the jury on the basis that the applicant had not sent the texts. Counsel for the applicant told the judge:
… I’ll be frank about it. I wasn’t really intending to ask her any – many questions if any about the texts. I wasn’t going to ignore them – I’ll address the jury and try and deal with them in the – on the basis that – and what I - but I’ll essentially say to the jury, the text messages are there, she adopts them, it is evidence of a relationship and Your Honour will tell us something about that.
A little later, counsel explained what he would eventually say to the jury: ‘They are relationship – His Honour will tell you how to use that evidence, but one relationship does not beget penetration.’ Counsel said that he was ‘running a mile from these texts’.
Consistently with the process that had been discussed and agreed, the complainant was called in a special hearing and the prosecutor had her identify certain messages. The number of messages tendered was substantially fewer than had been obtained by SL and served in the depositions. The complainant confirmed that the messages had been sent after the incident had happened. It was these messages that formed part of the evidence at the trial. The remainder of the messages were not adduced.
It is not profitable to set out verbatim the messages that were tendered. A brief precis is sufficient to demonstrate their tenor.[8] In one message, after saying that he had been thinking about breaking up with SL, the applicant said:
in no way shape or form r u responsible for our seperstion ive just had enough….
as fir us i love you sooooo much i am thinking of you all day and all night
[8]All misspelling and abbreviations are in the original text messages.
In another message he said:
…. i have fallen in love with the way you are with my girls…you are a far better mother than [SL] will ever be…. no matter how old… I love the way you giggle and laugh
In one exchange the applicant and complainant said:
Applicant: Fuck I wanna be with you so bad and have a family
Sorry… bit much
Complainant No. Its not to much, fuck I wanna be with you so bad
Applicant I wqnna be with you sooooo sooo bad
Complainant I love you baby
Applicant I love you xxx we would nake the best family.
Complainant Haha I reckon xx
Applicant hehe i love you
Complainant Love you x
In another screen shot, the following exchange appears:
Applicant im so keen for u to move in with me….xxxx
could u imagine cuddles nd kisses every night
Complainant It would be fuckin heavin [emojis]
In another exchange in which the applicant refers to SL finding something that the complainant had sent to him, the following appears:
Complainant How did she see it? What did she say? Does she hate me [emoji] I love you xx
Applicantidk….. shes like I csnt belive your cheating on me with my cousin… i saidr you fuckin serious… basically put it bacj on her xxx so we are in the clear xxxx just got to tread carefully xxxxx
I love you ti xxx howd u sleep
Complainant Do you think this is a bad idea [emoji]
Applicantyes and no xxx
The complainant was cross examined. She agreed that she was very close to SL who was more like a sister to her than a cousin. She accepted that the first time she had said that there had been sex with the applicant, was when SL had telephoned her from the offices of DHHS. She accepted that SL had told her that she needed the complainant to confirm that the applicant had sex with her because DHHS were going to take her children away. She denied that she had said that the incident had occurred as a favour to SL. It was put to her that she had previously denied to SL that the applicant had sex with her and had lied to her mother by telling her that the texts had not come from the applicant but had been sent from a boy from her school.
The defence closing address
Counsel for the applicant told the jury that the complainant could not be believed. Before explaining why that was so, counsel turned to the text messages. He told the jury that although they painted the applicant in a poor light, they did no more than illustrate a relationship between the applicant and complainant, and that they did not prove that sexual penetration had occurred. He said the texts should be put to one side.
Counsel then submitted that the complainant was a liar. She had lied to her mother about the text messages: when her mother had found out about them she said they had come from a school friend. She had denied that the applicant had sex with her to SL. She had a motive to lie, in order to assist SL.
Proposed ground of appeal
The applicant seeks leave to appeal on the following ground:
[T]he verdict of guilty is unreasonable and unsupported by the evidence, in that:
a) the evidence of the only witness capable of supporting the verdict was fundamentally untruthful, and the conviction of the applicant in those circumstances is a substantial miscarriage of justice;
b) a jury would have been obliged to reject that evidence, and there was no other evidence on which it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
The parties’ submissions
In his written case, the applicant invites this Court to ‘look at all of the circumstances of the applicant’s trial, and not simply the evidence before the jury.’ The applicant submits that the complainant’s evidence that the texts messages between the applicant and the complainant had commenced after the incident was ‘fundamentally untruthful’ and because she was not a witness of truth, the verdict is unreasonable and unsatisfactory.
To make out his proposed ground, the applicant relies on two things. First, the date of 11 March that was removed from the screen shots of the text messages in the exhibit tendered before the jury. Second, the call records which showed extensive communication between the applicant and the complainant prior to 12 March. He submits that this evidence shows the existence of an intimate relationship between the complainant and the applicant that had started before the incident, and that this was inconsistent with the complainant’s evidence and therefore she was a liar whose evidence was incapable of being accepted to the criminal standard.
He submits that the evidence of the texts, coupled with a motive to lie to help SL in her dealings with child protection, meant that the evidence of the complainant about the incident on 12 March was incapable of sustaining the verdict.
The respondent accepts that the complainant understated the nature and extent of her relationship with the applicant. However, it submits that the proposed ground of appeal is to be assessed on the evidence at trial. The decision of the parties not to open up the full extent of the relationship was a reasonable and proper one. It was submitted that the fact that there had been communication between the applicant and complainant prior to the incident for which the applicant was convicted, did not render the verdict unreasonable. Further, irrespective of the date on which communications commenced, the verdict was supported by the evidence.
Conclusion
The arguments in support of the proposed ground of appeal are based on a fundamental misconception. The applicant relies on s 276(1)(a) of the Criminal Procedure Act 2009 to contend that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. He also contends there has been a substantial miscarriage of justice.[9]
[9]Criminal Procedure Act 2009 s 276(1)(c).
The principles that this Court must apply in considering that ground are clearly established. In M v The Queen,[10] the High Court said ‘[w]here, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’[11] The reference to the evidence, is the evidence that was before the jury. Were it otherwise, the critical distinction between a trial and appeal would evaporate. The applicant’s submission, if accepted, would fundamentally alter the nature of the ground as it has hitherto been understood. It is inconsistent with M v The Queen, and a myriad of cases, both in the High Court and intermediate appellate courts, and there is no authority in support of it. It cannot be accepted.
[10](1994) 181 CLR 487; [1994] HCA 63 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[11]Ibid 493 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).
It may be accepted that, in an appropriate case, a conviction can be set aside having regard to evidence that was not adduced before the jury. However, the circumstances in which this Court can receive evidence that was not before the jury are heavily circumscribed.[12] It is sufficient for present purposes to observe that fresh or new evidence will not be admitted if it was available to the accused at trial. That is patently the case here: the applicant was in possession of the evidence upon which he now seeks to rely to impugn the verdict but he made a forensic decision, following both extensive discussion in court and ‘long conference’ with his counsel, not to adduce it at the trial.
[12]See, eg R v Nguyen [1998] 4 VR 394, 400–1; 99 A Crim R 151 (Kenny JA, Winneke P and Callaway JA agreeing); Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 141–6 [30]–[39]; [2017] VSCA 46 (Priest JA, Maxwell P and Kidd AJA agreeing).
It may also be open to a convicted person to contend that as a result of the incompetence of legal advisers evidence was not, but should have been, put before the jury, or that there should have been an objection to evidence that was admitted. In such cases, an applicant must show a substantial miscarriage of justice. Again, it is sufficient to observe that there will be no miscarriage of justice where counsel makes a legitimate forensic decision in relation to the evidence that is to be admitted at trial. As Gleeson CJ explained in TKWJ v The Queen,[13] in relation to a decision not to call character evidence in a criminal trial:
On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.[14]
[13](2002) 212 CLR 124; [2002] HCA 46 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[14]Ibid 128 [8] (citations omitted).
In this case, the applicant has not alleged that his counsel conducted his defence incompetently. That is unsurprising. The text messages were obviously a powerful piece of evidence in the trial and presented significant challenges to the applicant’s defence. Given the sheer number of texts which were sent from his phone, and their content, the applicant’s explanation given in his record of interview that he was not the author of them defied credulity. It was not persisted with at the trial. Further, although it was open to the applicant to challenge the complainant’s evidence as to when the texts commenced with an eye to undermining her credit, such a line of cross examination carried obvious risks. Given his denial that penetration had occurred, it was not in his interests for evidence to be adduced about intimate communications between them before the incident, and the texts themselves would still need to be addressed. The decision taken at trial not to require all the screen shots to be adduced and not to cross examine the complainant as to when the communications commenced was a reasonable forensic decision. It was up to the parties to determine the evidence to be led at trial.[15]
[15]Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ); Whitehorn v The Queen (1983) 152 CLR 657, 675 (Dawson J) and 660 (Gibbs CJ and Brennan J agreeing).
For completeness, I would add that there was no unfairness in the prosecutor not adducing all of the screen shots. Adding to the volume of texts by including other texts that were in a similar vein would hardly help the applicant. I also reject the applicant’s submission that it was improper for the prosecutor to invite the jury to find that the complainant was truthful and reliable. The approach taken by the parties reduced the risk that the jury would be distracted by the relationship rather than focus on whether the charged act had occurred. The date on which communications between the applicant and complaint commenced was not critical to the prosecution case. Inconsistencies in the complainant’s account on that issue went only to her credit. It was entirely proper for the prosecutor to invite the jury to accept the evidence of the complainant in relation to the specific conduct that made up the charged offence. Indeed, the case for the prosecution was a strong one.
Conclusion
Having regard to the evidence adduced at trial there is no basis to impugn the verdict. There was ample evidence on which to convict the applicant. There is no reason to think that the jury must have had a doubt. There is no occasion to inquire whether, had the evidence been different and other evidence adduced, the verdict would have been different. There was no substantial miscarriage of justice.
The application for an extension of time must be refused as an application for leave to appeal would fail.
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