DJT v Tasmania
[2018] TASSC 57
•28 November 2018
[2018] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: DJT v Tasmania [2018] TASSC 57
PARTIES: D J T
v
STATE OF TASMANIA
FILE NO: 2142/2018
DELIVERED ON: 28 November 2018
DELIVERED AT: Hobart
HEARING DATES: 19 October, 15 November 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Procedure – Notice of appeal – Time for appeal and extension thereof – Extension of time for appeal – No prospect of appeal succeeding.
Aust Dig Criminal Law [3555]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: E Avery
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 57
Number of paragraphs: 34
Serial No 57/2018
File No 2142/2018
D J T v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW CJ
28 November 2018
In May of this year a jury found the applicant guilty of two counts of rape and two counts of maintaining sexual relationships with young persons under the age of 17 years. The four charges related to four different complainants. On 7 June Porter AJ convicted him and sentenced him to three years' imprisonment on the rape charges with a non-parole period of 18 months, and to a cumulative term of 12 years' imprisonment on the other charges, with a non-parole period of eight years. On 6 August the applicant filed a notice of appeal against his convictions, and an application for an extension of the time for appealing. Under s 407(1) of the Criminal Code, any person desiring to appeal against a conviction is required to give notice of appeal within 14 days of the date of the conviction. The applicant's notice of appeal was filed 60 days after his convictions were imposed.
The Crown contends that an extension of time should be refused on the ground that the delay in appealing was inordinate and on the ground that the appeal would have no hope of success.
The applicant's grounds of appeal read as follows:
"1Jail Chronology Proves Non Presence
22 Jury members should not have been Present
3inconsistancy [sic]".
The applicant was not represented by counsel. In the course of oral submissions, he explained and added to his proposed grounds of appeal. He gave evidence in support of his application, and was cross-examined. I will deal with each suggested ground of appeal, including those that were not referred to in the notice of appeal.
Gaol chronology
The applicant was arrested on 13 July 2011 and spent about six months in custody as from that day. He contends that, as a result of being in prison at that time, he has alibis in relation to some of the occasions relied upon by the Crown in relation to the charges of maintaining sexual relationships with young persons. Those charges were counts 3 and 4 on the indictment. The complainants to whom they related have been referred to as C and A respectively. C was his stepdaughter. A is his daughter.
By virtue of s 125A(3) of the Code, the crime of maintaining a sexual relationship with a young person under the age of 17 years is committed when an offender commits an unlawful sexual act in relation to a particular young person on at least three occasions. The Crown relied on evidence of unlawful sexual acts in relation to C on six occasions, and in relation to A on six other occasions. The only such occasions in 2011 were the fifth and sixth relating to C and the third relating to A.
Only C gave evidence as to the timing of the fifth and sixth occasions relating to her. The evidence established that the applicant fathered a child ("X") who was born on ... C, A and X have the same mother. C gave evidence to the effect that the fifth occasion was before the birth of X, early in her mother's pregnancy. Her evidence as to the timing of that occasion was not challenged. The defence case was that there had been no unlawful sexual acts at all.
C gave evidence that the sixth occasion was also at a time when her mother was pregnant. She said that she was around ... years old, and that her birthday was in ... Under cross-examination, she said that the sixth occasion was a few months before the birth of X, but that she possibly could have told someone that it was about a month before the birth.
C was imprecise as to the dates of the fifth and sixth occasions. It was reasonably open to the jury to accept that the events asserted in relation to both of those occasions took place before the applicant went into custody.
When A was cross-examined about the third occasion relating to her, she said that it happened when her mother was just about to have X. When asked how close in time it was to X's birth, she replied, "Would have been, I don't know, like a couple of weeks."
It was reasonably open to the jury to accept that the asserted event did occur, and that A had made a mistake as to the interval between that event and the birth of X.
There was an interval of about seven years between the events of 2011 and the applicant's trial. It was reasonably open to the jury to conclude that each of the events described by the complainants in relation to 2011 had occurred before the applicant went into custody. His counsel at the trial cross-examined C and A appropriately as to the discrepancies between their assertions as to the timing of events and the known facts relating to the applicant's imprisonment. There is no prospect of the Court of Criminal Appeal concluding that anything said or not said at the trial in relation to any possible alibi defence relating to the applicant's imprisonment could have caused or contributed to a miscarriage of justice.
Empanelment of the jury
During the empanelment of the jury, the learned trial judge told the prospective jurors about the nature of the charges and asked them to let him know if any of them might have difficulty being impartial. The applicant submitted to me that two members of the jury that convicted him should have been discharged as a result of disclosures that they made in the course of the empanelment. He said that one juror disclosed that he had been sexually assaulted as a young person, and that another disclosed that he had a daughter who was a victim of a sexual assault as a young person.
A recording of the empanelment was played during the hearing of this application. A transcript of the relevant part of the empanelment has been prepared. One member of the jury panel said the following to the learned trial judge:
"I have a big problem with being impartial as well due to very personal reasons. I state to the Court that I was abused as a child and in many ways I will have difficulty with this case."
The learned trial judge discharged that individual before the jury was sworn and affirmed. No other juror told his Honour of being sexually assaulted as a young person. I infer that the applicant has made a mistake which led him incorrectly to believe that the individual in question was a member of the jury that convicted him.
Another member of the jury panel said the following to the learned trial judge:
"I'm not looking to necessarily be excused, but I just – I know there's some other people in the other room who know my daughter was assaulted 10 years ago so – I mean I believe that I can be impartial but I wanted to bring it to the Court's attention for want of a better word."
Counsel for each side submitted to his Honour that that juror should be taken at his word. That juror was not discharged. He was a member of the jury that convicted the applicant. There are times when jurors must be discharged because of a risk of a lack of impartiality. The test is whether, despite any proposed or actual warnings of the trial judge as to impartiality, the circumstances would give rise to "a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror ... will not discharge [his] task impartially": Webb v The Queen (1994) 181 CLR 41 per Mason CJ and McHugh J at 53.
As Maxwell P said in R v Vjestica [2008] VSCA 47, 182 A Crim R 250 at [34], "It is a fundamental precept of our system of jury trial that jurors understand and comply with the directions they are given." The learned trial judge told the jury at the time of the empanelment that it was essential that every member of the jury was to be completely open minded and impartial and not favour one side or the other. Having regard to that warning and the juror's assertion that he believed he could be impartial, I think it most unlikely that the Court of Criminal Appeal would conclude that a fair-minded and informed member of the public would reasonably have apprehended or suspected that the juror in question, as a result of his daughter having been assaulted – apparently sexually assaulted – 10 years previously, would not undertake his task with an open mind.
A sleeping juror
The applicant asserted that a member of the jury fell asleep during the trial. When cross-examined about that assertion, he said that the juror was asleep for probably a minute. He said that he told his counsel about the juror, but that the matter was not raised with the Court. He said that the juror had her head down and her eyes shut. If that is true, it does not necessarily follow that the juror was asleep. Jurors can listen to the evidence with their eyes closed. More significantly, there is no reason to think that one juror's inattention for a minute or so might have made any difference to the verdicts of the jury. There is no reason to think that the Court of Criminal Appeal might regard such a brief period of sleep or inattention as causing or contributing to a miscarriage of justice.
Jurors talking to witnesses
The applicant asserted that the jury "were having breaks with witnesses and complainants out the front of the court" and that they were eating together in the same café. When cross-examined about that assertion, he said that he did not hear anything that was said, and conceded that he was really speculating that there might have been some collusion between jurors and witnesses. There is no evidence that there was any improper communication between any of the jurors and any of the witnesses. Before each break, the jurors affirmed that they would not discuss with any person other than another member of the jury any matter relating directly or indirectly to the evidence or the deliberations. An oath or affirmation in that form is required by s 47(6) of the Juries Act 2003 each time the members of a jury are permitted to leave the court. There is no reason to think that any member of the jury might have conversed with anyone else about the case.
Witness attending appearances before trial
The applicant asserted that one of the Crown witnesses was present during "the final 9 months of hearing processes". The applicant identified that witness as ...
That witness gave evidence as to where and approximately when the applicant lived with C and A. His evidence was also relevant to the applicant's opportunities to be alone with C or A. His evidence was not controversial. The applicant's counsel asked him only two questions in cross-examination.
It is of course undesirable for a witness, before giving evidence, to be in court and hear the evidence of other witnesses. There is no suggestion that that happened in this case. At most, the witness might have learned a little from time to time about the likely trial date, and about the steps that had been taken or needed to be taken before the matter was ready for trial. There is no reason to conclude that the presence of the witness in court on occasions before the trial caused or contributed to a miscarriage of justice.
The applicant's former partner
The applicant's former partner, ..., the mother of A, C and X, gave evidence at the trial. The applicant made a number of assertions to me as to her having reasons to lie. He suggested a conspiracy relating to possession of land, child support arrears, and/or financial gain. He suggested that there were social media communications that indicated disrespect for her children's welfare and protection.
That woman was cross-examined by the applicant's counsel during the trial. He suggested that she might have put false ideas in the minds of C and A. The applicant had the opportunity to instruct his counsel as to any information or suspicions that he had concerning her. There is no reason to suspect that his counsel was disadvantaged in any way when he cross-examined her.
Whatever imperfections the witness in question might have had, there is no reason to think that any circumstance relating to her caused or contributed to a miscarriage of justice.
Inconsistencies
The applicant explained that his third ground of appeal related to inconsistencies in the evidence of Crown witnesses, and inconsistencies between the evidence of some Crown witnesses and some of their earlier assertions.
Initially the applicant said that there were inconsistencies between the evidence of the two complainants to whom the rape charges related. Count 1 alleged that he raped his half-sister, K. Count 2 alleged that he raped a girl, T, the daughter of a woman with whom his father had been having a relationship shortly before the relevant time. The number and scope of the suggested inconsistencies grew as the hearing of the application proceeded. The applicant's principal contentions, and my comments relating to them, are as follows:
· T gave evidence to the effect that the applicant had sex with her in an old shed. K gave evidence to the effect that that occurred in a different place, in a dairy on another property.
· The applicant said that two detectives had given conflicting accounts as to the number of officers who attended his home at a particular time. In my view any such inconsistency is inconsequential. The applicant accepted that one of the two detectives did not give evidence at the trial.
· The applicant said that K and another witness gave evidence that the alleged incident relating to K took place between 1997 and 1999, but he said he was not at that place in 1997.
· K made an allegation of another sexual assault, but no evidence of that alleged assault was led at the trial. The applicant conceded that his lawyer was aware of the allegation and that he did not ask K about it. It seems to me that cross-examining K about an additional allegation would probably have done the applicant's case far more harm than good.
· In her evidence-in-chief, T said that the applicant had intercourse with her inside a large tank. When he cross-examined T, the applicant's counsel asked her whether she had ever told anybody that the sexual activity was near the tank, not inside it. She said that she may have. She agreed that she had told somebody that she was lying on her back on the ground, but went on to give evidence that her memory had not changed, and that she "obviously worded it different". It seems that she had originally told the police that intercourse occurred near the tank, rather than inside it, but that her evidence at the trial was different.
· The second and third occasions relied on by the Crown in relation to C involved allegations of unlawful sexual acts at a particular residence. The applicant told me that C had originally said that there were bunk beds in the relevant room, but that she later said there was a double bed. However the transcript of the trial reveals that C referred to a double bed in her evidence-in-chief, and was not asked anything about the bed or beds when cross-examined.
· When C gave evidence relating to the second occasion relied on by the Crown in relation to her, she said at one point that she was in her bed before the applicant entered her room, but later said that he pushed her down on the bed. Those assertions were not necessarily inconsistent. She might have got out of bed before being pushed down again, and might have omitted to mention that she got out of bed.
· In her police interview, which was video recorded and played to the jury, A said, in relation to the fourth occasion relied on by the Crown, that her mother had dropped her off at the place in question. When cross-examined by counsel for the applicant, she said she did not remember how she got there on that occasion. The police interview was about 34 months before the trial. A's memory could have faded during that interval.
· In her evidence-in-chief relating to the sixth occasion relied on by the Crown, C said that she could not tell whether it was still daylight because the bedroom was dark. The applicant pointed out that it appears from the Crown papers that C told a police officer that the incident in question occurred at about 10pm when "it wasn't that dark outside". That was said about 34 months before the trial. Apparently the jury were not told of that prior inconsistent statement. However the applicant's counsel had the relevant papers, and there was nothing to prevent him from cross-examining in relation to that point if he considered it important. In my view it was not.
· In her video recorded police interview in July 2015, A spoke at one point of the applicant threatening to kill her, and later of a fear that he would kill her mother. She was ... years old at the time of the interview. Her two comments were not necessarily inconsistent.
· The Crown alleged that the third occasion involving A was some time before July 2011. When A was interviewed by police officers, she said that she was ... or ... years old on that occasion. ... If that incident occurred when she was ... or ... years old, she would no longer have been living at the house where she said the incident occurred. It was open to the jury to be satisfied beyond reasonable doubt that the applicant engaged in an unlawful sexual act with A at the house in question in the first half of 2011, and to conclude that she had wrongly estimated how old she was at the time.
Discrepancies and inconsistencies in the evidence of prosecution witnesses can be relevant to the question of whether a miscarriage of justice has occurred. In M v The Queen (1994) 181 CLR 487 at 494-495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ...".
It is not uncommon for the evidence of honest witnesses to contain discrepancies, or to be inconsistent in minor respects with their earlier accounts of events. Inconsistencies are only to be expected when there are long intervals between events occurring, those events being reported to the authorities, and evidence being given about those events. Many of the inconsistencies relied on by the applicant related to points of little or no importance. In my view the discrepancies and inconsistencies in the evidence of the Crown witnesses in this case were not so great that the Court of Criminal Appeal could possibly conclude that the evidence of the Crown witnesses lacked probative force to such an extent that the jury ought to have entertained a reasonable doubt as to the applicant's guilt in relation to any charge, or in relation to any asserted unlawful sexual act on any particular occasion.
Delay before trial
The applicant was charged in December 2015 but not brought to trial until May 2018. He contends that that delay was unfair to him. Whilst such delays are regrettable in sexual cases, there is no reason to think that the delay had any significant impact on the fairness of the applicant's trial.
A mistake in sentencing
In 2005 a judge of this Court sentenced the applicant to six months' imprisonment, wholly suspended, on charges of wounding, breaching a restraint order, assault, and destroying property. The victim of the assault was the applicant's then partner, ... The victim of the wounding was a man who had come to her aid, whom the applicant stabbed a number of times with a Leatherman tool. The learned trial judge referred to these convictions in his comments on passing sentence on the applicant. His Honour said, "In September 2005, he was convicted of wounding. The complainant was [the partner], and the conduct was in breach of a restraining order." His Honour seems likely to have made a mistake as to whom the applicant wounded in 2005. In my view such a mistake could not have made any difference to the length of either of the applicant's sentences. It was certainly irrelevant to the convictions that the applicant wishes the Court of Criminal Appeal to overturn. He has not suggested that either of his sentences was excessive or affected by any other error. His notice of appeal appears to relate only to his convictions.
Conclusion
The bases upon which the Court of Criminal Appeal may allow an appeal against a conviction, or convictions, are set out in s 402(1) of the Code. That subsection reads as follows:
"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
In my view none of the grounds of appeal relied upon by the applicant in his notice of appeal or his subsequent submissions have any merit at all. There is no realistic prospect that the Court of Criminal Appeal would be persuaded that there has been a miscarriage of justice, or that for any other reason an appeal by the applicant should be allowed. Granting an extension of time would therefore be futile. I have therefore decided to dismiss the application for the extension of time. It follows that the applicant's purported appeal must also be dismissed.
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