F G v The Queen
[2012] VSCA 84
•4 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0141
| F G | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 April 2012 |
| DATE OF JUDGMENT | 4 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 84 |
| JUDGMENT APPEALED FROM | DPP (Vic) v [F G] (Unreported, County Court of Victoria, Judge Pilgrim, 1 April 2011 (date of verdict), 9 June 2011 (date of sentence)) |
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CRIMINAL LAW – Appeal against conviction – Appellant alleged to have sexually abused his natural son – Convicted of seven charges of incest, one charge of gross indecency and one charge of committing indecent act with child under 16 – Appellant and his family held family meeting in 2001 at which allegations of abuse were raised – Family meeting was covertly recorded – Edited version of recording was admitted into evidence and purported transcript of recording was provided to jury – Recording difficult to follow and often unintelligible – Prosecutor relied upon edited recording and transcript in his final address in misleading manner – Whether admission of edited recording and transcript into evidence or directions given by trial judge with respect to those materials resulted in miscarriage of justice – Appeal allowed – Appellant’s convictions set aside and retrial ordered – Mahmood v Western Australia (2008) 232 CLR 397 – R v Clune (No 2) [1996] 1 VR 1.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr M Croucher SC with Ms C Boston | Balmer & Associates |
| For the Crown | Mr P Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Bongiorno JA.
BONGIORNO JA:
After a nine-day trial before his Honour Judge Pilgrim and a jury in the County Court, on 1 April 2011, the appellant, FG, was convicted of nine charges of sexual misconduct in respect of his natural son. He was convicted of seven charges of incest, one charge of gross indecency and one charge of committing an indecent act with a child under the age of 16. On 9 June 2011, he was sentenced as follows:
Charge
Offence
Sentence
Cumulation
1
Incest
5 years’ imprisonment
2
Incest
5 years’ imprisonment
4
Incest
5 years’ imprisonment
5
Gross indecency
18 months’ imprisonment
6 months
7
Incest
5 years’ imprisonment
8
Incest
5 years’ imprisonment
9
Incest
6 years’ imprisonment
Base
10
Indecent act with child under 16
3 years’ imprisonment
18 months
11
Incest
5 years’ imprisonment
Total effective sentence
8 years’ imprisonment
Non-parole period
6 years
On 2 November 2011, Hansen JA granted the appellant leave to appeal against his convictions on two grounds:
1.A miscarriage of justice resulted from:
a) the admission into evidence of an edited audio tape‑recording and transcript of a family meeting in 2001 (Exhibits B and C); or
b) failure to direct that it was not open to rely on the appellant’s utterances on the tape as admissions to any of the allegations made by the complainant on the tape or at trial; and
c) failure to identify to which charged or uncharged acts the alleged admissions were said to relate; and
d) failure to direct that the complainant’s allegations on the tape were not evidence of the truth of those allegations.
2.A miscarriage of justice resulted from:
a) the leaving as lies going to consciousness of guilt the appellant’s answers to police in his record of interview (i) about his relationship with his children and (ii) about whether his family had previously made allegations of sexual abuse of the complainant (as disclosed by the family meeting tape); and
(b)the failure of the judge to give adequate directions on this topic.
The appellant married T in 1971. They had four children: S (born in 1972), V (born in 1973), K (born in 1975) and P (the complainant, born in 1977). The appellant and T bought a house in a northern Melbourne suburb in 1973. In 1989, they added a second story to the property. They lived together in that house until 2000, when they separated. They subsequently divorced in 2003.
However, in 2001, whilst they were separated, they attempted to reconcile. As part of this process, the family held a meeting which was tape-recorded without the knowledge of the appellant. During this meeting, a large number of allegations were made against the appellant by his wife and children. The Crown relied upon an edited version of this recording (Exhibit B) as containing admissions made by the appellant as to his conduct with his son, constituting the offences upon which he was tried. The jury were also provided with what purported to be a transcript of that edited recording ― marked for identification as Exhibit C.
In 2008, the complainant went to the police for the first time and made allegations of sexual abuse against his father. Over the next six months, he made a number of statements and, in May 2009, he made a telephone call to the appellant at the instigation of the police in which he made a number of allegations of incest. This call was recorded by police. The appellant denied the allegations made against him in the phone call but was subsequently charged.
The prosecution case
The appellant was tried on 11 charges which related to five separate alleged incidents. The Crown also led evidence of a number of incidents in respect of which charges were not laid, such evidence being said to be relevant and admissible as ‘tendency’ or ‘context’ evidence.
The facts alleged in charge 1 (incest) were said to have occurred in late 1988 or 1989 when the complainant was aged 11. He said that the appellant called him into his bedroom where he lay naked on the bed. He asked the complainant to take off his clothes. The complainant took off all his clothes except his underwear. The appellant then played a pornographic video showing two men sodomising and fellating each other. The appellant asked the complainant to perform those acts on him. The complainant refused but the appellant pushed the complainant’s mouth onto his penis. He then pushed the complainant’s head up and down, instructing him to imitate the video. The appellant ejaculated in the complainant’s mouth.
The facts alleged in charge 2 (incest) were said to have occurred a week after the event alleged in charge 1. The appellant called the complainant into the bathroom and asked him to wash his back. The complainant was told to take his clothes off and join the appellant in the shower. The appellant rubbed his hands all over the complainant’s body and performed fellatio on him. Charge 3 (incest), of which the appellant was found not guilty, was an allegation that the appellant soaped the complainant’s penis until it became erect and had the complainant penetrate his anus.
Charge 4 (incest) related to an alleged incident when the appellant called the complainant into his bedroom and told him to remove his clothes. The complainant complied, except for his underwear. He then lay down beside the appellant who was naked. The television in the bedroom was showing a pornographic video. The appellant then pulled down the complainant’s underwear and masturbated him until he got an erection. The appellant then put saliva on the complainant’s penis and guided it towards his anus. He pushed backwards and forwards. This activity was interrupted by T, the appellant’s wife, who came into the room, whereupon the appellant quickly changed channels and told T they were watching television. T left and the appellant continued to sodomise the complainant. He said that he thought that the appellant ejaculated.
Charges 5, 6, 7, 8 and 9 all arose out of the same alleged incident. When the complainant arrived home from school one afternoon, the appellant called him into the bedroom to give the appellant, who was lying naked on the bed, a massage. He told the complainant to take his clothes off, which he did. He had the complainant massage his neck, back and his bottom (charge 5 ― gross indecency). He asked the complainant to lick his anus. The complainant initially refused but then did lick it (charge 6 ― incest ― not guilty). The appellant performed fellatio on the complainant until his penis was erect (charge 7 ― incest). The appellant put the complainant’s penis into his anus and moved it up and down (charge 8 ― incest). The appellant then reached for some baby oil and put his penis in the complainant’s anus (charge 9 ― incest). The complainant described the pain of this activity as being ‘like a knife … going inside’.
The facts alleged in charges 10 and 11 occurred on the same occasion in June or July 1992. The complainant was in a bedroom downstairs and was using crutches as he had a broken ankle. The appellant came into the room and used his erect penis to slap the complainant in the face (charge 10 ― indecent act). The appellant then put his penis into the complainant’s mouth and had him fellate him (charge 11 ― incest).
The prosecution also led evidence of other conduct involving generalised sexual activity between the appellant and the complainant in 1990 when T, V and K were in Greece and a specific incident when the appellant, the complainant and V were on holidays in Bali and the appellant fellated and sodomised the complainant. It also relied upon answers given by the appellant about his family and the family meeting in his police record of interview as lies that could be used as to his credibility and as implied admissions of his guilt.
The defence case
The appellant denied the offending ever happened and relied on his previous good character. He attacked the complainant’s credibility by suggesting a number of reasons why he had a motive to lie, including his desire to break up his parents’ relationship and his dissatisfaction with his mother’s share of the property settlement she had received upon divorcing the appellant. The defence case alleged that the complainant initially told a lie to his mother, saying ‘a father doesn’t fuck his kids’, and that that lie snowballed. He was cross-examined as to various credit issues including alleged exaggerations. The appellant characterised admissions that he had allegedly made during the family meeting as being not genuine but as having been resorted to after a long period of nagging by other family members.
The appellant formally admitted a number of matters ― his relationship with the complainant, his marriage, where the family home was situated and the dates upon which various family members had been overseas. He did not give evidence.
The family meeting
The appellant’s first ground of appeal concerns evidence led by the Crown concerning the ‘family meeting’ held in about 2001 which was covertly recorded by his then wife. The recording thus produced, unedited, was about 56 minutes long. As it was agreed that much of the discussion concerned highly prejudicial allegations against the appellant and other matters irrelevant to the trial, the recording was edited, it would seem, by the joint endeavours of the appellant’s trial counsel and the trial prosecutor. The edited version was tendered in evidence as Exhibit B. What purported to be a transcript of it was marked Exhibit C for identification and also provided to the jury. The recording played to the jury was seven minutes in length.
Before considering the appellant’s arguments concerning the family meeting, it should be observed that, although the jury were informed that the version of the family meeting they had been provided with and its transcript had both been edited, and were told, in general terms, the purpose of that editing, they were not told at which points on the recording or in the transcript the editing had excluded portions of the meeting or the length of those exclusions.
The unedited CD-ROM of the family meeting, provided to this Court by the Crown at the appellant’s request, records a noisy, emotional, often hostile conversation involving a number of people. The recording is by no means a clear record of what was said. Although the voices identified on the transcript as being those of the appellant and his then wife are usually able to be distinguished from those identified as the complainant’s and his sisters’, this is not always the case. The voices of the appellant and his wife are heavily accented and, on some occasions, are difficult to understand because of their use of idiomatic expressions often used by migrants whose first language is not English. There is much unintelligible but obviously emotional shouting and, almost continuously, more than one person can be heard speaking at the same time. At one point on the recording, there is an unexplained gap of about two minutes. The transcript of the unedited recording runs for 119 pages. On only one of those pages (page 43) does it purport to be a transcript of everything that was said. On every other page of the transcript, there are passages, sometimes lengthy, which, it can be safely inferred, the transcriber was unable to decipher. There are many places in which words attributed to the appellant are not transcribed, often because more strident voices speaking over him make his statements unintelligible.
The transcript of the version of the recording which went to the jury (Exhibit C for identification) runs for only 18 pages, numbered consecutively. Like the purported transcript of the original, it is hardly a transcript at all, with much text missing altogether. A comparison of that document with the text of the full transcript shows discrepancies between the two versions, not only because Exhibit C is markedly shorter but also because some of the text is different, as if the two documents had been transcribed from similar but different sources.[1] For example, on page 2 of the edited transcript, the appellant is recorded as saying:
What I said to Peter wash my back, is that right true or not. Yes or no.
In the transcript of the original recording, he is shown as saying:
I don’t know. What I said to Peter ..... ..... ..... ..... ..... true or not. Yes or no.
[1]The CD-ROM containing the edited version of the recording, tendered at trial as Exhibit B, was unable to be produced by the Crown to this Court.
Subsequently, on pages 2 and 3 of the edited transcript, the complainant is quoted as saying:
And you said, ‘Kiss my polaki like a porno.’ And then you said, ‘Suck it like a lollypop.’
But the quote from the original is quite different:
And you said, ‘Here’s my ..... like a porno.’ And then you said, ‘Suck it like a lollypop.’
The appellant is then quoted in both versions of the transcript as making an unintelligible response:
..... ..... ..... fuckin’ ..... ..... ..... ..... ..... like fuckin’ ..... ..... That’s what ..... .....
Other statements by the complainant in the vicinity of these quotations suggest that he may be referring to the first episode of sexual activity instigated by the appellant. But whatever sense can be made of this exchange, there is no admission by the appellant that any such encounter took place.
On page 3 of Exhibit C, two consecutive statements are attributed to the appellant. The first is:
I’m telling you, Peter ..... ..... ..... .....
The second is:
Why do ..... ..... ..... lie for?
A reader would assume the second utterance (whatever it meant) followed the first (whatever it meant). But in the ‘original’ transcript, there are seven lines of text between those two quotations including one line attributed to the appellant which the transcriber must have been unable to decipher as it consists solely of a line of dots. As will be seen, the failure of the editing of both the recording and the transcript to reveal the extent of the deletions compounded the problems which these materials created for the jury. Whilst editing of documents is sometimes necessary to avoid injustice, it is difficult to imagine a situation in which it would be necessary or justifiable to disguise the extent of the editing or where it has occurred as seems to have happened in this case, not only as to the recording and transcript of the family meeting but also as to the same materials produced in respect of the appellant’s police record of interview, although that material is not relevant to the issues raised by this ground of appeal.
In his final address, the Crown prosecutor said that three of the five episodes of sexual abuse alleged against the appellant by his son were brought up in the family meeting. He took the jury to parts of the edited transcript which appear to relate to the first and second episodes of abuse of which the complainant had given evidence. If that transcript is an accurate record of what was actually said at the meeting, which is certainly doubtful for the reasons already advanced, it contains allegations by the complainant but no admission by the appellant that he accepted those allegations as true.
The prosecutor then referred to the ‘fifth episode’, which he described as being ‘the one concerning the cast on the leg episode’. He said that the complainant raised it in a passage to be found on page 10 of Exhibit C. In fact, it is raised by the complainant on page 9 as follows:
[THE COMPLAINANT]: I remember when my leg was broken in there. When my leg was broken, you came downstairs and you stuck your dick in my mouth or did you forget that too?
[V – a female]: There you go.
[THE APPELLANT]: ..... ..... ..... ..... .....
The prosecutor then asserted that the appellant made no response to his son’s allegation. But this assertion is not borne out, either by the edited transcript, the original transcript or the original recording. Both transcripts record a line of dots against the name of the appellant (as set out above), indicating a response which the transcriber could not decipher. On the original recording, the appellant can be heard responding, which response is drowned out by the shouting of a female voice (probably V). There is no basis for the prosecutor’s assertion that the appellant did not respond. He may well have been disputing the allegation. If he was, to assert otherwise as a fact as the prosecutor did does him a grave injustice.
But the prosecutor did not stop there. He went on to refer the jury to pages 12, 14, 16, 18 and 19[2] of the edited transcript. He drew the jury’s attention to statements attributed to the appellant on those pages to the effect that he had done wrong and that he apologised for doing wrong. These statements, the prosecutor argued, were made by a man:
who has never apologised for anything in his life. And you might think that a person like that, would not admit to doing something if he hadn’t done it. You might think he might deny it. But he certainly would not have apologised for it unless he did do it.
[2]The prosecutor’s reference to page 19 is curious as the exhibit (Exhibit C for identification) contained in the appeal book has only 18 pages. A difference in the numbering of the pages in the exhibit as possessed by the prosecutor and as included in the appeal book may explain this as well as the prosecutor’s earlier apparently erroneous reference to page 10 of the exhibit: see paragraph [25] above.
But what the jury did not know was that between the excerpt from the transcript quoted above, which ended with the appellant’s indecipherable response to his son’s accusation, and the passages relied upon by the prosecutor, 18 pages of the original transcript had been edited out. Those pages contained, amongst other things, diffuse allegations of the appellant’s having sexually abused other members of his family, of his having been unfaithful to his wife, of his having visited prostitutes and of his having received obscene phone calls. It was misleading of the prosecutor to invite the jury to conclude that the statements of the appellant upon which he relied constituted admissions of any of the specific charges of sexual abuse upon which the appellant was being tried. They may well have been no more than apologies for bad behaviour as a husband and father generally over a long period.
In the course of the appellant’s trial, his counsel did not raise any of the matters referred to above. Indeed, it seems clear that the edited version of the covert recording of the family meeting was created with his concurrence. In his final address, he argued that it contained no admissions by his client and that insofar as it contained apologies they were browbeaten out of him by his family. In this Court, counsel for the appellant could offer no explanation as to why the admission of this material into evidence was not objected to at his client’s trial. Neither he nor counsel for the Crown in this Court could suggest any forensic purpose which trial counsel could have been pursuing in failing to contest its admissibility.
In his directions to the jury, the trial judge referred to the family meeting and to the edited version of the recording of that meeting which the jury had before them. His Honour referred to the Crown case that the appellant had made admissions at that meeting. He referred to ‘three separate incidents’ as having been mentioned by the complainant in the course of the meeting. He warned the jury that they had to be satisfied that the appellant had admitted ‘these alleged sexual abuse incidents’ in order to use the evidence against him. However, the trial judge did not identify the separate incidents to which he referred, nor did he identify the part or parts of the recording or transcript in which those incidents were allegedly admitted. He did not refer to the obvious inadequacy of the recording given its quality nor did he refer to the many instances in the transcript in which, it could be confidently inferred, the transcriber had been unable to decipher things that various people said ― perhaps, particularly, things that were said by the appellant. Nor did he instruct the jury that assertions made by the complainant were not, of themselves, probative of the appellant’s guilt. Although the trial judge had directed the jury that the transcript with which they were provided was not the evidence upon which they could rely,[3] his Honour made no mention of the difficulty they would have in using the transcript at all having regard to those parts of the recording which were indecipherable and recognised as such by the transcriber. The possibility of the jury having been misled by what occurred is significant.
[3]Butera v DPP (Vic) (1987) 164 CLR 180.
In his argument in this Court against the admission of the edited recording and the use of the edited transcript, counsel for the appellant pointed to a number of discrepancies similar to those to which reference has already been made. In particular, he argued that the deletion of 18 pages of the original transcript, after an allegation was made against the appellant and before an alleged admission, resulted in the jury being seriously misled. He also argued that when the whole unedited recording and its transcript were considered it was plain that the appellant denied the allegations and that insofar as he ‘apologised’ it was impossible to exclude the hypothesis that such apology was made under duress or out of exasperation, having regard to the breadth of the allegations against him, their source and the vehemence with which they were pursued.
In its argument supporting the admission of the edited recording and edited transcript of the family meeting, the Crown referred to the fact that the jury were aware that there had been significant editing of that recording, that multiple allegations or complaints were made against the appellant by various family members and that they were entitled to find that his apologies covered more than the sexual abuse complaints made by the complainant.
The edited tape of the family meeting and its transcript ought not to have been admitted into evidence. Taken overall, its probative value was slight when compared to the prejudice to which the appellant was exposed by its admission. If there were any relevant admissions on that recording, which must be regarded as doubtful, the appellant was entitled to have before the jury not only those admissions but also anything else he had said which might have been exculpatory.[4] On many occasions whilst creating that transcript, the transcriber was unable to record in writing the appellant’s responses, which could be heard but not understood. The prejudice to which the appellant was exposed was materially increased by the way in which the original recording was edited. It was further compounded by the use which the prosecutor made of the recording and its transcript in his final address. His reliance on the alleged apologies of the appellant in the circumstances in which he did was unwarranted on the evidence.
[4]Mahmood v Western Australia (2008) 232 CLR 397.
The Crown, in defence of its position, relied upon the failure of defence counsel at trial to seek to exclude the recording and its transcript. Although this point might, normally, be a good one, in this instance, the events which occurred represented such an egregious departure from due process in the conduct of a fair trial that the appellant was exposed to a substantial miscarriage of justice. That no objection to that process was raised before the trial judge cannot preclude this Court from acting to obviate the effect of that miscarriage.[5] This appeal should be allowed.
[5]R v Clune (No 2) [1996] 1 VR 1, 6 (Callaway JA).
The second ground of appeal upon which leave was granted concerned the use by the Crown of alleged lies by the appellant to the police as evidence of implied admissions. Having regard to the conclusion I have reached with respect to the first ground, there is no need to consider this ground further. It is inextricably bound up with the admission into evidence by the trial judge of the evidence of the family meeting, as the alleged lie relied upon by the Crown is a denial that that meeting occurred. Absent admission into evidence of the recording of the family meeting, if the Crown wished to rely on a consciousness of guilt lie, it would have had to prove the family meeting and its subject matter in some other way. There is no utility in speculating at this point as to how the Crown might approach that issue if it were to press the case in that way on a retrial. The efficacy of an argument based on the alleged false denial of the happening of the family meeting should await the appellant’s new trial and the way the Crown puts its case on that trial.
Conclusion
This appeal should be allowed, the verdicts of the jury with respect to those charges upon which the appellant was convicted should be set aside and a new trial should be ordered.
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