Elliot (a pseudonym) v The King
[2023] VSCA 48
•8 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0154
| JACKSON ELLIOT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 March 2023 |
| DATE OF JUDGMENT: | 8 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 48 |
| JUDGMENT APPEALED FROM: | DPP v [Elliot] (Unreported, County Court of Victoria, 12 October 2022, Judge Leighfield) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Applicant charged with sexual offences against biological daughter – Whether leading questions asked by police in disclosure interview contaminated subsequent VAREs – Whether leading questions asked in VAREs should have led to the exclusion from evidence pursuant to s 137 or s 138 of the Evidence Act 2008 – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr P Kounnas and Mr H Lewis | ||
| Respondent: | Ms V Jones | ||
Solicitors | |||
| Applicant: | Docherty Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
TAYLOR JA:
Introduction
Pursuant to certification of the trial judge given under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicant seeks leave to appeal an evidentiary ruling delivered on 12 October 2022.
An indictment filed in the County Court charges the applicant with 19 sexual offences[2] against his biological daughter, ‘FL’, comprising nine separate incidents between 1 February and 21 August 2021, when FL was aged eight or nine years and the applicant was 52 or 53.
[2]The charges include: attempted sexual penetration of a child or lineal descendant (three charges – charges 1, 8 and 17); sexual activity in the presence of a child under 16 (three charges – charge 2, 6 and 19); sexual assault of a child under 16 (one charge – charge 3); and sexual penetration of a child or lineal descendant (12 charges – charge 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16and 18).
In order to prove the charges, the prosecution seeks to rely on three separate VAREs[3] conducted with FL: first, on 29 August 2021 (‘the first VARE’); secondly, on 1 September 2021 (‘the second VARE’); and, thirdly, on 26 October 2021 (‘the third VARE’).[4]
[3]Video and Audio Recorded Evidence. See CPA, ss 366 and 367.
[4]A fourth VARE was conducted with FL on 2 March 2022, but the prosecution does not seek to rely on it at trial.
Pre-trial, counsel for the applicant sought to have the evidence constituted by both the first VARE and second VARE excluded entirely. Counsel contended that, because of the circumstances in which both the relevant disclosure interview[5] and the VAREs were conducted, and the way in which questions were posed in each of those interviews and VAREs, the VAREs should be excluded, first, under s 138 of the Evidence Act 2008 (‘the Act’); or, secondly, under s 137 of the Act. Alternatively, counsel submitted that particular answers in the first VARE and second VARE should be excluded under ss 137 or 138, in that they were obtained in response to leading questions.
[5]See [13] below.
Ultimately, the trial judge refused to exclude the two impugned VAREs in their entirety. In so doing, the judge refused the application insofar as it was based on s 137 of the Act. The judge did, however, exclude four answers in the first VARE — the answers being to questions 389, and 400 to 402 — pursuant to s 138 (‘the ruling’ or ‘the interlocutory decision’).[6]
[6]See [0]–[22] below.
In this Court, the applicant sought leave to appeal against the ruling on five grounds of appeal as follows:
1. The learned Judge erred in concluding that the first and second VAREs should not be excluded in total under s 138 of the Evidence Act.
2. The learned Judge erred in concluding that the first and second VAREs should not be excluded in total under s 137 of the Evidence Act.
3. The learned Judge erred in concluding that answers given by the complainant to leading questions asked in the first and second VAREs should not be excluded from evidence.
Particulars:
a. The learned Judge found that questions 233, 378-379, 381, 389, 400 and 402 in the first VARE; and questions 727 and 1503 in the second VARE were all leading questions.[7]
[7]In oral argument, counsel for the applicant abandoned any criticism of questions 389, 400 and 402.
b. The evidence arising from these leading questions ought to have been excluded from evidence.
4. The learned Judge erred in concluding that certain questions asked of the complainant in the first and second VAREs did not amount to leading questions and refusing to exclude the answers from evidence.
Particulars:
a. The learned trial Judge found that questions 225, 361, 420, 424 of the first VARE and questions 717, 736, 1493 of the second VARE were not leading questions.[8]
b. The learned trial Judge made no finding on whether questions 720 – 722 in the second VARE were leading.
c. These questions were leading and the evidence arising from them ought to have been excluded from evidence.
5. A miscarriage of justice is likely to occur as a result of an accumulation of errors.
[8]Despite the breadth with which the ground is expressed, the applicant’s counsel did not press any argument relating to questions 225, 361, 420 and 424 of the first VARE, or questions 717 and 1493 of the second VARE. The sole issue under this ground became whether question 736 was leading and should have been excluded under ss 137 or 138.
In our view, leave to appeal must be refused. Our reasons follow.
Background, initial complaint, disclosure interview and VAREs
It is unnecessary to describe the alleged offending in detail. It is enough to say that all nine incidents of offending are alleged to have occurred in the applicant’s bedroom, and that the activities included digital penetration of the complainant FL’s anus and vagina; penile-vaginal penetration (and attempts to do so); penile-oral penetration (and an attempt to do so); masturbation in FL’s presence; and having FL masturbate the applicant’s penis.
The applicant and FL’s mother separated on October 2013. Custody arrangements had been in place for FL and her two brothers — one is a twin, and the other two years older than her — since January 2014. Formal orders provided for the children to live with the applicant from 9.00 am on Friday to 5.00 pm on Saturday one week, and then from 9.00 am Saturday to 5.00 pm Sunday the following week, but from late 2020 FL did not go to the applicant’s home on Friday evenings.
According to FL’s mother, on Saturday, 28 August 2021, FL was at home with her whilst her brothers were at the applicant’s house. FL asked her mother whether she had to go to her father’s house, and her mother told her that she did. FL then told her mother that she did not want to go and gave her a list of reasons why. The complainant’s mother told her that she could not change these things but would support the complainant to cope with them. After further conversation, FL drew a picture for her mother showing her two brothers with sad faces. She then wrote a list of reasons why she did not want to attend the applicant’s house, including that he is rude, hurts the boys, disrespects her, calls her names and makes jokes that are offensive. The complainant’s mother told her that there was not much she could do about these things. FL then told her mother that she would write it down because it is hard to explain. A short time later she showed her mother a piece of paper to which the words ‘dad try to do the dirty with me I didn’t feel comfbul’.
In a further conversation, when her mother asked her what she meant by ‘dirty things’, FL made a circle with the fingers of one hand and used a finger on her other hand to poke through it. FL told her mother that acts happen in the applicant’s bedroom, spoke of the removal of clothing and that her dad ‘humps’ her.
Having been apprised of what FL had said, FL’s grandmother telephoned the Department of Families, Fairness and Housing (‘DFFH’) and advised them of what she had been told. DFFH then contacted a regional Sexual Offences and Child Abuse Investigation Team (‘SOCIT’). Detective Senior Constable Leah Dixon then contacted the complainant’s mother that evening and made an arrangement for FL and her mother to attend at the SOCIT office the next day for a ‘disclosure interview’.
At approximately 12.00 pm the next day, 29 August 2021, FL and her mother attended at the SOCIT office. Shortly afterwards, at 12.07 pm, a ‘disclosure interview’ was conducted with FL by Detective Dixon in the presence of Detective Leading Senior Constable Kylie Chisholm. The disclosure interview was not electronically recorded, but Detective Chisholm took handwritten notes. Her notes initially showed that, despite questions being asked of FL designed to initiate discussion about the alleged disclosures to her mother, FL did not make any disclosures of sexual conduct against her by the applicant. It was then that Detective Dixon used ‘more direct questioning’ (as she put it in her statement). The notes record the following:[9]
[9]Emphasis added.
Q Private parts
A Kinda
Q What mean kinda
A No, not really
Q What tell Mum
A (think)
Q What did happen?
A Can’t really remember. I remember Mum crying.
Q You know why Mum cry
A I knew it was about Dad
Q What about Dad
A Something really bad that happened
Q What bad
A Sometimes when boys get hurt or when mean to Mum, make her upset, hurts her feelings
Q Dad make you uncomfortable
A Tells me off for nothing when doesn’t listen to me
Q Touch you – made feel uncomfortable
A Yeah kind of
Q Tell me about that
A Kind hard to explain
Q When was it
A Month ago or something
Q Where touch
A (holds hip area) He touch me here and there before (points to bum & vagina) (names them) I didn’t really like it – felt uncomfortable. Just like touched it.
Q Where were you
A Kids bedroom
Q What doing before he did that
A Nothing
Q Is that what you told Mum yesterday
A Yes
Q How many times
A A couple
Q What mean
A 2-3
Q Dad say anything
A No
Touch bum [Not clear if this is a question or an answer]
A He doesn’t ask
We pause to note that the judge ruled that the two questions italicised in the passage from the disclosure interview set out immediately above — the first referring to ‘private parts’, a term that had not been used by FL to that point; and the second, which introduced the concept of ‘touching’ making her ‘uncomfortable’, where FL had not previously identified any touching by the applicant — were both leading questions.
In evidence given pursuant to s 198A of the CPA, Detective Dixon confirmed that until she asked FL the question recorded as, ‘Touch you, made you feel uncomfortable?’, FL had not alleged misconduct against her father. Detective Dixon’s evidence was that the reason she asked FL specifically about being touched was because she had been given information that FL had previously said this, and she needed to push further and be thorough to ensure the FL’s safety. She also gave evidence that although FL had initially said on a number of occasions in the disclosure interview that ‘nothing had happened’, FL’s body language and tone indicated that she had more to tell police. Importantly, Detective Dixon conceded that she had asked the questions in a leading way. She said that she did so because she could tell from FL’s body language that she had more to tell them, and because they had been told that FL had already made a disclosure. Detective Dixon gave evidence that police members conducting such interviews are trained to address what has been disclosed, and whilst such a question is leading, police are trained to do it in that way with young children where the disclosure has not yet been made under non-leading questioning.
Giving evidence on voir dire, Detective Dixon conceded that the police training documents do not say that leading questions should be asked of a child in a disclosure interview.[10] She again stated her belief, however, that something had happened to FL, and her training was not only about the guidelines, but also about keeping children safe. Detective Dixon said that she felt that she was entitled to ask the questions in the manner that she did because of the information she had received about FL’s disclosure to her mother and the fact that she was concerned about FL’s safety given that disclosure.
[10]The documents were the VARE Procedural Guidelines and the Family Violence Command SOCIT Practice Notes on Investigative Interviewing.
So far as the two disputed VAREs are concerned, in her ruling, the judge found that ‘questions 233, 378-379, 381, 389, 400 and 402 in the first VARE;[11] and questions 727 and 1503 in the second VARE are all leading questions’. Those questions (and the answers elicited) are to be found in the following passages:[12]
[11]As we indicated above, counsel eschewed any criticism of questions 389, 400 and 402.
[12]Emphasis added.
A227 And he tries to, like, put it in my bum, then - - -
Q228 Yeah.
A228 - - - and I kind of feel uncomfortable again.
Q229 Yeah, of course. What does he try and put in your bum?
A229 His penis.
Q230 Penis. Yep, OK. And have you ever touched his penis?
A230 Only, like – he kind of, like, grabs my hand and - - -
Q231 Yep.
A231 - - - then, like – makes me touch it.
Q232 Yeah, yep. Can you tell me what it feels like?
A232 I feel really uncomfortable and it – it - - -
[grimaces, raises shoulders and makes sound ‘uugh’]
Q233 Yeah, yep. Is his penis hard?
…
A233 Yeah
Q378 Yeah, yep. So before you said when he plays with it and you did the hand gesture about what he does - - -
A378 Yeah.
Q379 - - - did you ever do that to him?
A379 No.
Q380 No.
A380 No, like, what do you mean?
Q381 So when you put your hand on his penis did you ever have to play with it like Dad played with it?
A381 Yes.
…
Q389 Yep, O.K. Did anything ever come out of Dad’s penis?
A389 No.
…
Q400 O.K. Did you go to Dad’s that weekend?
A400 Yes.
Q401 Yeah, yep.
A401 But on the Saturday again.
Q402 Yeah, yep. Did it happen that weekend?
A402 I think so.
‘‘‘
Q717 So could you see dad’s penis?
A717 Yeah.
Q718 O.K. What was the - what was his penis doing?
A718 It was kinda just - I’m not sure, but it was, like, staying there and - and then he grabbed it and did that.
[gestures using hand]
Q 719 When you said it was ‘staying there’, what - where was it staying?
A719 It was just, like, there, so - - -
[gestures between legs, moving hand from mid-thigh to crotch region]
Q720 Yeah. In between your legs?
A720 Yeah.
Q721 Whereabouts?
A722 Just – what do you mean?
Q722 So you said it was staying in between your legs?
A722 Yeah.
Q723 What was it touching?
A723 Just, like, my leg.
Q724 Your leg?
A724 Like, there, that part - - -
[gestures – inside of leg in mid to high thigh region]
Q725 Yeah.
A725 - - - of my legs.
Q726 Yeah. Did his penis go anywhere else?
A726 No.
Q727 O.K. So did his penis touch your vagina?
A727 Yes.
Q728 Tell me about that.
A728 Yeah. So it – and he started, like, moving it and it kinda slided out, so - - -
[gestures hand between legs, moving towards crotch area, and then over top of thigh]
Q729 Slided out from where?
A729 Just from, like, there
[gestures in area between legs in mid to upper thigh region]
Q730 In between your legs?
A730 Yep.
Q731 Yeah. Tell me about his penis touching your vagina.
A731 So his – his, like – kinda, like, touched it and it, like, went like that and try to, like, push it in kinda.
[gestures pushing down motion]
Q732 Mm’hm, Push it into where?
A732 Like, just, like, to the side, like, push it in like that.
[gestures with hand, then pushes teddy’s leg into her leg]
Q733 Mm’hm, yeah. And what could you feel then?
A733 Just, like, his penis, like, just rubbing against my skin.
Q734 Yeah, yep. So you said he tried to push it in. Where did he try to push it in?
A734 Just, like, the side – just, like, the side bit.
Q735 The side bit of where?
A735 Of my vagina.
Q736 Vagina, yeah. Did it go into your vagina?
A736 Aah. [pauses] Yeah, I think.
Q737 Yeah, OK. What makes you think that?
A737 Just because, like, it slided in - - -
[gestures with fist towards teddy’s leg]
Q738 Mm.
A738 - - - and then it would kinda, like, slip, so - - -
[gestures with fist moving back away from teddy’s leg]
…
Q1489 Yeah, O.K., yep, all right. So you said he was wearing no clothes - - -
A1489 Yeah.
Q1490 - - - and the - the parts of his body that were touching yours - - -
A1490 Yeah.
Q1491 - - - and you said ‘here’. [gestures to hip area] What was touching you?
A1491 Just, like - so it went like that and - -
Q1492 Yeah.
A1492 - - - like that.
[gestures with one hand still and the other doing a caterpillar like motion on top of the still hand]
Q1493 O.K., all right. So was his penis touching your body?
A1493 Yeah.
Q1494 Whereabouts on your body was his penis touching?
A1494 Like, there.
[gestures across hip/ waist/ crotch area with hand]
Q1495 Yeah. And so you’ve pointed to here. [gestures around hip/waist area] What would you call that?
A1495 Like, where – like, that?
[gestures across body in area of hip/ waist/ crotch]
Q1496 Yeah.
A1496 Yeah. I would say, like, just, like, maybe kinda, like, my – no, not my – my waist.
Q1497 Your waist, yeah, O.K. And did his penis - where else did his penis touch?
A1497 Well, he kinda, like, went like that and then, like, it went like that.
[gestures with one hand still and the other doing a caterpillar like motion on top of the still hand]
Q1498 Mm’hm.
A1498 So it did touch my vagina and - - -
Q1499 Mm.
A1499 Yeah. Between my legs and stuff.
Q1500 Yeah, O.K. So whereabouts on your vagina did his penis touch?
A1500 Just, like, in the middle.
Q1501 In the middle? So on this picture here, where would you say is the middle?
A1501 There and - - -
[points to area on drawing she had previously made in VARE]
Q1502 And what did you call that before?
A1502 The hole.
Q1503 The hole, yeah, O.K. So his penis touched the hole in your vagina. [Complainant nods.] Did his penis go in the hole?
A1503 Uuh, yeah.
[creases up eyes and cheeks and tilts head from side to side]
Q1504 Yeah, yeah. And how did that feel?
A1504 Kind of a bit awkward and weird
.…
The interlocutory decision
With respect to individual questions in the first VARE, the trial judge found that question 233 — ‘Is his penis hard? — was a leading question, since it introduced a concept which had not yet been raised by FL. Ultimately, the judge was also of the view that questions 378–379 — ‘So before you said when he plays with it and you did the hand gesture about what he does - - - did you ever do that to him?’ — and 381 — ‘So when you put your hand on his penis did you ever have to play with it like Dad played with it?’ — were also leading, since they assumed the existence of a fact the existence of which was in dispute and of which the complainant had not given evidence before the question was asked.
As to individual questions in the second VARE, the judge found that question 727 — ‘So did his penis touch your vagina?’ — was a leading question, since, although the complainant had previously identified that her father was naked and his penis had gone between her legs, she had not given evidence that the accused’s penis had touched her vagina, or gone anywhere else aside from between her legs. The judge considered that question 1503 — ‘Did his penis go in the hole?’ — was also leading, since, although FL had said that the applicant’s penis had touched the hole in her vagina, at all times leading up to the question FL had only given evidence of touching, not penetration.
By way of contrast, the trial judge found that question 736 — ‘Did it go into your vagina?’ — was not a leading question. The judge observed that the concept of penetration had already been raised by the complainant and the question sought to establish whether or not penetration had in fact occurred. Further, the question was not framed in a manner which suggested a particular answer (as was reflected in the answers that FL gave to this and questions following).
When dealing with the application to exclude the disputed leading questions and answers pursuant to s 138 of the Act, the judge said that she was
satisfied that the prosecution has established that the desirability of admitting the evidence obtained in response to Q233, 378–379 [and] 381 in the first VARE, and 727 and 1503 in the second VARE outweighs the undesirability of admitting evidence which has been obtained in this manner.
Turning to the issue of exclusion under s 137 of the Act, the judge said:[13]
The question still remains, however, as to whether the evidence obtained in response to Q233, 378-379 [and] 381 in the first VARE, and 727 and 1503 in the second VARE must be excluded on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused.
As I have already explained I am of the view that the evidence is of a high probative value.
Insofar as the danger of unfair prejudice to the accused is concerned, I do not agree that the rules which are in place in respect of cross-examination of child complainants would prevent cross-examination on the veracity of the complainant’s allegations made in response to those leading questions. I do however accept that a jury may seek to attach considerable importance to the answers that were elicited by each of the leading questions in the first VARE and the second VARE, and that a jury should have regard to the manner in which that evidence was elicited when determining the weight to accord to those answers. If a jury is not appropriately informed as to the potential dangers of evidence elicited in such a manner, then there would be the potential for the accused to be unfairly prejudiced. However, juries are routinely directed in respect of issues such as this and, in my view, a judicial direction advising caution when assessing the weight to be given to each of these pieces of evidence would remedy any danger of unfair prejudice.
[13]Emphasis added.
The applicant’s submissions in this Court
Under cover of the first ground, counsel for the applicant submitted that the trial judge should have excluded the first and second VAREs under s 138 of the Act, first, due to the allegedly improper way the evidence was initially elicited in the initial disclosure interview; and, secondly, because of the leading questions that persisted throughout them. Counsel submitted that the judge was wrong to find (as she did) that the repeated attempts by Detective Dixon did not involve any impropriety or improper procedure ‘when considered either individually, or in combination with the two leading questions’ in the disclosure interview. Contrary to the judge’s ruling, the disclosure interview did involve an element of impropriety, counsel submitted, because the questions were leading; the complainant was a child; the questions were repetitive; and the questions were about a fact in issue in the proceeding. Counsel submitted that leading questions asked in a disclosure interview, immediately prior to a commencing a VARE, should be considered improper, in the same way that such questions in a VARE would be considered improper.[14] Further, the disclosure interview contaminated the VAREs, since the disclosure interview and the first VARE were in reality the same interview. The gravity of the impropriety is high, counsel contended, so that the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence, having regard to the factors in s 138(3) of the Act. There is a real risk of injustice in circumstances where the applicant had no opportunity to object to leading questions during the VARE interviews. Importantly, counsel conceded that for this ground (and ground 2) to succeed, the applicant would need to demonstrate a ‘causal connection’ between the asking of the two impugned questions from the disclosure interview and the answers subsequently given in the VAREs.
[14]Counsel cited Knowles (a pseudonym) v The Queen [2015] VSCA 141, [68]–[72] (Ashley, Redlich and Priest JJA).
With respect to ground 2, counsel for the applicant submitted that the judge should have found that the ‘leading and repetitive’ questions in the disclosure interview contaminated the VAREs. Counsel argued that the evidence in the first and second VAREs are of low probative value, even when taken at their highest, and that the probative value is outweighed by the risk of unfair prejudice to the applicant.[15] The judge should not have concluded that the answers obtained in response to the leading questions were nevertheless of high probative value.[16]
[15]Counsel referred to IMM v The Queen (2016) 257 CLR 300.
[16]Counsel cited Douglass v The Queen (2012) 290 ALR 699.
So far as ground 3 was concerned, counsel for the applicant submitted that, the judge having found that questions 233, 378–379 and 381 in the first VARE, and 727 and 1503 in the second VARE, were leading, the judge should have excluded them under ss 137 and 138 of the Act. Counsel submitted that whilst it is permissible for an interviewing officer to clarify the nature of a complaint, or to summarise information already provided, the generally applicable rule that a leading question must not be put in evidence-in-chief without leave of the court is applicable to a police officer asking questions in a VARE interview.[17]
[17]Martin v the Queen (2013) 46 VR 537, 546–7 [34]–[40] (Maxwell P and Neave and Redlich JJA).
As we have mentioned, the sole issue agitated under cover of ground 4 was whether question 736 was leading and should have been excluded pursuant to ss 137 or 138 of the Act. Counsel submitted that the judge was wrong to find (as she did) that question 736 was ‘not a leading question, but was a natural next question in circumstances where the complainant had both said, and demonstrated, at A731, 732, 734 and 735 that the [applicant] was trying to push his penis into her vagina’. Being in reality a leading question, counsel submitted, the judge was wrong not to consider its exclusion under ss 137 and 138.
Finally, with respect to ground 5, counsel for the applicant submitted that an aggregate of minor errors can amount to a miscarriage of justice where they may not individually rise to that standard. In combination, each of the matters relied on creates a significant unfairness to the applicant should the trial continue without appellate intervention.
Discussion
In our view, grounds 1 and 2 must fail at the threshold. Counsel for the applicant conceded in oral argument that these grounds could only succeed if a ‘causal connection’ could be established between the asking of the two impugned questions in the disclosure interview and the answers subsequently given in the VAREs. Indeed, counsel agreed generally with the proposition that, unless the Court was ‘persuaded that the questions in issue in the disclosure interview were so egregious that they unfairly and unduly influenced everything … in the VAREs that followed’, the arguments advanced in support of grounds 1 and 2 ‘cannot succeed’. In our opinion, however, any such ‘causal connection’ was absent. We consider it to be plain that the references to ‘private parts’ and touching in the two questions were evidently designed to tease out information that FL had already imparted to her mother. To our minds, it is somewhat fanciful to suggest that the impugned questions in the disclosure interview might have unduly influenced — let alone wholly contaminated — FL’s account in the subsequent VAREs. Furthermore, we agree with the following observations made by the judge in her ruling:
Turning specifically to the questions asked of the complainant in the disclosure interview, there is some ambiguity around the exact terms of the two questions in dispute. [Detective] Chisholm’s notes record the first of the two questions simply as ‘private parts’ albeit her evidence on the voir dire was that the question asked was similar to ‘Do you remember talking to your Mum about your private parts?’ This rendering of the question is consistent with the flow of questions as captured by [Detective] Chisholm in her notes.
Having regard to the form of this question, I agree with [defence counsel] that if that questions, it would have amounted to a leading question given that private parts had not been mentioned by the complainant in evidence prior to the question being asked. In that sense, it could be said to amount to a leading question. However, contrary to [defence counsel’s] submission, I am not of the view that the content of the question – even considered in light of the preceding questions – suggests to the complainant that the answer that is being sought is that her father sexually abused her. The question – whilst referring to private parts – does not pertain to whether there was an incident in respect of the complainant’s private parts, or the involvement of any particular person in relation to her private parts. It is framed purely by reference to any conversation which the complainant may have had with her mother about private parts.
Insofar as the second question to which objection is taken is concerned, [Detective] Chisholm’s notes record the question as being ‘Touch you – made feel uncomfortable’, whilst her evidence on the voir dire was that the question would have been something similar to ‘[h]as Dad touched you or made you feel uncomfortable?’. Again, having regard to the form of this question, I agree with [defence counsel] that if that same question had been asked in the context of a VARE with the same preceding questions, it would have amounted to a leading question given that the complainant had not mentioned her dad touching her prior to the question being asked. In that sense, it could be said to amount to a leading question.
In respect of this latter question, whilst the question itself is open-ended as to the form of the touching and could have covered non-sexual touching which made the complainant uncomfortable, it is arguable that there was a greater level of suggestion contained within this question than the first question given the flow of the conversation to that point. I do not agree, however, that the question was suggestive of the answers which flowed from the complainant subsequent to that question in which she nominated by gesturing that the accused touches her in the hip area, and nominated by both gesturing and orally that the accused had touched her on her bum and vagina; as well as nominating the time frame for the alleged incident; the location of the incident; and the number of times which this kind of incident was alleged to have happened.
Turning to ground 3, we note that it has been assumed that the proscription against leading questions found in s 37(1) of the Act applies to VAREs.[18] For the purposes of the Act, a leading question is defined in the Dictionary of the Act to be
a question asked of a witness that —
(a)directly or indirectly suggests a particular answer to the question; or
(b)assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked
[18]For example, see Martin v The Queen (2013) 46 VR 537, 546 [34] et seq.
Having found that questions 233, 378–379 and 381 in the first VARE, and 727 and 1503 in the second VARE, were leading, there was no occasion for the judge to exclude them under s 138. We agree with the judge’s opinion that the desirability of admitting the evidence obtained in response to the questions outweighs the undesirability of admitting evidence which has been obtained in this manner. Section 138(1) of the Act provides that evidence obtained ‘improperly’ or ‘in consequence of an impropriety’ is not to be admitted ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. Assuming for the sake of argument, that the handful of leading questions relied upon might conceivably mean in this case that FL’s answers were obtained improperly or in consequence of an impropriety, we regard any impropriety in this case that might attach to the asking of leading questions to be minor. Our distinct impression is that Detective Dixon approached her questioning of FL in a fair and conscientious manner, and, for the most part, carefully avoided asking leading questions. Indeed, it seems to us that the questions that she did ask that were of a leading nature were designed to elucidate other answers that FL had given. Certainly, it does not appear to us that Detective Dixon’s questioning was calculated to evade any procedural or evidentiary safeguards, or manifested any deliberately improper conduct. Any impropriety could not properly be characterised as grave. And it could not be said to represent a deliberate or reckless contravention of applicable law or procedure.
Moreover, even if it be thought that the asking of leading questions in the two VAREs engaged s 138(1) of the Act, the judge clearly was correct to conclude that the factors set out in s 138(3) — including the probative value of the evidence and the importance of the evidence in the proceeding — militated in favour of the reception of the evidence. The judge was also correct to find that s 137 had no application. As to that, it is sufficient to say that we fully agree with the judge’s observations on the issue earlier referred to.[19]
[19]See [22] above.
Finally, with respect to ground 4, although the matter is not free from difficulty, we consider that it was open to the judge, for the reasons she gave, to conclude that question 736 was not leading.[20] But even were we wrong about that, we consider it to be plain that neither ss 137 or 138 of the Act are animated.
[20]See [20] above.
Given these conclusions, there is no occasion to consider ground 5.
Conclusion
None of the grounds has substance. Leave to appeal against the interlocutory decision must be refused.
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