F M T v The Queen
[2011] VSCA 165
•9 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 640 of 2009
| FMT |
| v |
| THE QUEEN |
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| JUDGES | BUCHANAN, NEAVE JJA and COGHLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 May 2011 |
| DATE OF JUDGMENT | 9 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 165 |
| JUDGMENT APPEALED FROM | R v [FMT] (Unreported, County Court, Judge Leckie, Date of Verdict: 25 March 2009) |
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CRIMINAL – Conviction – Applicant found guilty of count of incest – Jury unable to reach verdict on two other counts of incest – Evidence – Admission of complainant’s evidence as to violent disposition of applicant towards mother – Whether failure to give direction as to use of evidence productive of miscarriage of justice – Failure to seek direction – Characterisation in prosecutor’s closing address of certain behaviour of applicant as ‘strange’ – Evidence of conduct not relied upon as consciousness of guilt – Evidence did not disclose propensity to commit incest – Whether verdict unsafe and unsatisfactory – M v The Queen (1994) 181 CLR 487; SKA v The Queen [2011] HCA 13, applied – Whether verdict inconsistent – Direction as to absence of motive to lie – R v Rodriguez [1998] 2 VR 167, applied – Application for leave to appeal against conviction refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Peter Clarebrough & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Neave JA.
NEAVE JA:
The applicant was convicted of one count of incest (count 3) by a majority verdict of a County Court jury. The jury was unable to reach a verdict on two other counts of incest (counts 1 and 2) on the presentment and were discharged. The applicant now seeks leave to appeal against his conviction on count 3.
Background
Count 3 was alleged to have occurred between 1 June 2008 and 17 July 2008. The complainant was LN, a ten year old girl who was the daughter of the applicant’s de facto partner, PM. From 24 September 2006 till about the time the offence was reported to police, the applicant lived with PM, the complainant, and their two daughters, aged 2 years and 11 months, respectively. The complainant shared a bedroom with the older of the two daughters and slept on the top level of a bunk bed.
The complainant alleged the applicant would put her younger sister to bed in the bottom bunk and then climb into the upper bunk with the complainant and have intercourse with her. This behaviour had been going on since she was 9 years old. She alleged that, on the occasion leading to his conviction on count 3, he had removed her pyjamas, pulled down his tracksuit pants and had penile-vaginal intercourse with her. The complainant’s evidence was that she told him to stop and tried to push him away but that he said ‘no’ and continued. He then walked out of the room. She said she felt ‘scared’ when he left and that her ‘rude spot’ was sore.
On approximately 6 July 2008, the complainant told a school friend, MS, about the applicant’s conduct. This led to a police investigation and to the applicant being charged on three counts of incest.
The applicant was arrested on 17 July 2008 and interviewed on that day and on 30 July 2008. He denied that he had had intercourse with the complainant but said that, about one month earlier, she had complained of having a sore back and legs after participating in a running event, and that he had climbed onto her bed and removed her pyjama top and bottoms, and massaged her leg and buttocks. He denied that there was anything sexual about his conduct. He also described the complainant as a ‘cuddly kid’ and said that he would often jump into her bed for 5 to 20 minutes while her half-sister went to sleep. The applicant also said that, on a number of occasions following arguments with his de facto partner, PM, he had slept in the complainant’s bed when she was staying at her father’s house. He said that he had masturbated on one or two occasions when sleeping in the complainant’s bed. As I explain below, the Crown prosecutor referred to some of these answers in his closing address.
MS, the complainant’s friend was interviewed by Sergeant Vicki Key on 18 July 2008. In her interview, MS said that, approximately two weeks earlier on a Sunday after the two girls had gone to pony club, the complainant had told MS that the applicant would make the complainant have sex with him by putting his penis inside her when he was putting her sister to bed. The complainant told MS that she thought she had previously told their friends, J and L about this. MS said that the complainant had told another friend, N, on the following Monday and the girls had passed notes about it in class, but had then thrown them away. The complainant had told her that this conduct started when she was about seven or eight years old. At the special hearing, the complainant said that the applicant had sexual intercourse with her about once a week from when she was aged nine. In cross‑examination, she said that the offending began when her bedroom contained a single bed and a baby’s cot, before the bunk bed was moved into her room. She agreed that this evidence was inconsistent with her statement to police that the offending first occurred in the bunk bed.
Evidence was given by Dr Natasha Brown, of the Victorian Forensic Paediatric Medical Service, who examined the complainant on 17 July 2008. Dr Brown gave evidence that the genital examination neither confirmed nor refuted the allegations.
Evidence was also given by Alexandra Salerno, a Forensic Officer from the Biology division of Victoria Police Forensic Services Centre, about the samples taken from the complainant’s mattress that were submitted for DNA testing. Ms Salerno said that the presence of semen was confirmed in two areas of staining on the complainant’s mattress. In relation to one of the stains, the applicant was excluded as a contributor of DNA, and in the other, no DNA profile was able to be extracted.
The applicant did not call any evidence at the trial.
Ground 2
Ground 2 was as follows:
A substantial miscarriage of justice arose by virtue of the failure of the learned trial judge (a) to exclude evidence of the applicant’s disposition for violence or otherwise both in respect of the complainant and the complainant’s mother ...and (b), in the alternative, warn the jury about the use that could not be made of the applicant’s disposition for violence
Circumstances giving rise to this ground
During cross-examination at the special hearing, the complainant gave the following evidence:
COUNSEL:Did you get on well with your stepfather at that stage? [This referred to the time when she told her friend of the alleged abuse]
COMPLAINANT: Yes.
COUNSEL:He was a kind and loving man to you?
COMPLAINANT: Yes.
COUNSEL:You had no problems with him in his day-to-day care of you? He wasn’t a bully to you or anything like that?
COMPLAINANT: No.
COUNSEL:Didn’t bash you or anything of that nature?
COMPLAINANT: No.
COUNSEL:Did you ever tell anyone that you were afraid of being bashed by him?
COMPLAINANT: Yes.
COUNSEL:But that wasn’t true, though, was it?
COMPLAINANT: Yes.
COUNSEL:But, you told me, just then, that you thought he was a kind and, sort of, gentle man?
COMPLAINANT: Yes.
COUNSEL:But, you were afraid of being bashed by him, is that right?
COMPLAINANT: Yes.
COUNSEL:But you had no basis for thinking that, did you?
HIS HONOUR: Do you understand that question?
COMPLAINANT: No.
COUNSEL:… I think you just said to me that he was a kind gentle man to you?
COMPLAINANT: Yes.
COUNSEL:Can you understand what I mean by that?
COMPLAINANT: Yes.
COUNSEL:He didn’t bully you or hit you or anything like that?
COMPLAINANT: No.
COUNSEL:Do you know what bully means?
COMPLAINANT: Yes.
COUNSEL:You weren’t ordinarily scared of him at all?
COMPLAINANT: No.
COUNSEL:Did you say to anyone, that you were afraid that he’d bash you?
COMPLAINANT: Yes.
COUNSEL:Who did you say that to?
COMPLAINANT: One of my friends.
COUNSEL:That was before you made the VATE tape, is that right?
COMPLAINANT: Yes.
COUNSEL:Why did you say that you were afraid that he’d bash you?
COMPLAINANT: Because, he was violent to my mother.
COUNSEL:How was he violent to your mother?
COMPLAINANT: Um, bashing her.
COUNSEL:What, one or two occasions or what?
COMPLAINANT: Just some days.
The following day, there was a discussion between counsel and the judge about the editing of the DVD of the special hearing. Defence counsel sought to have the answers edited out, on the basis that they were prejudicial to the applicant. His Honour asked counsel why he had asked these questions. Defence counsel said the complainant’s answer had taken him by surprise.[1] He had been attempting to demonstrate that the complainant was not a reliable witness by relying on an inconsistency between the evidence that the complainant had told MS that she was afraid of the applicant and her statement in cross-examination that he was kind and gentle.
[1]Although counsel conceded that he had seen a report from the Bendigo Child Protection Unit that said there had been a notification about the family regarding domestic violence.
In response to a question from the judge as to whether the complainant’s response might be relevant to an alleged delay in complaint, defence counsel said that he would not be ‘using the question of delay in complaint in the running of this trial’.
In the discussion with the judge which followed, counsel for the Crown submitted that the evidence was relevant and probative because it related to the complainant’s credit. The alleged acts of incest occurred between September 2006 and July 2008. Even if delay were not put in issue by the defence, the jury were likely to question whether such abuse could have occurred in a family setting without the complainant telling a family member. The complainant’s answers helped to explain why the complainant had told her friends of the abuse, but no one else. Counsel submitted that it was just to admit the evidence under s 398A(2) of the Crimes Act 1958, despite its prejudicial effect.[2] He submitted that the judge could adequately deal with any prejudice caused by admission of the evidence by telling the jury that it was relevant only for a limited purpose and that they should not reason that the accused had abused the complainant because he had been violent to his wife.
[2]R v Abela (2007) 17 VR 1, 2 [6] (Nettle JA), 14 [66] (Neave JA); R v VN (2006) 15 VR 113, 122 [30] (Redlich JA, Maxwell P and Buchanan JA agreeing).
The trial judge held that the evidence had probative value:
The credit of complainant is the main issue in the case. The defence will be urging the jury not to accept the evidence that for a period of 16 & 22 months she submitted to unwanted sexual intercourse with the accused on a regular basis.
Her evidence that she was afraid of the accused despite him being kind and loving to her because she was aware that he had been violent to her mother in my view is probative of a fact in issue. In other words, it is relevant to explain her state of mind.
His Honour held that the probative value of the evidence exceeded its prejudicial effect, which could be dealt with by an appropriate jury direction.
The complainant’s mother was called as a witness by the Crown. Defence counsel cross-examined her about whether the accused had been violent to her and she gave the following answers:
COUNSEL:We heard your daughter … say that there was violence, that you were bashed by [the applicant]. Is that your recollection of what occurred, during your relationship?
COMPLAINANT: No, there were two incidences where the police came out and I wouldn’t describe that I had been bashed, no.
COUNSEL:What were the circumstances?
COMPLAINANT: Initially, the first one was, um, things were stressful and, ah, obviously an argument escalated. [The applicant] had pushed me and grabbed [me] and pushed me to the ground and I had called the police about, on that occasion.
Defence counsel also asked the mother whether the girl had complained to her about the abuse or about suffering pain in her genital region, and the mother said she had not.
In their closing addresses, both counsel referred to the complainant’s evidence that she was scared of the accused. Counsel for the Crown asked the jury to consider whether the reason that the complainant had not told any family member about the abuse was because she was a compliant child, ‘particularly when she was telling you she felt scared of the accused’. He then referred to the complainant’s evidence that the accused had been violent to her mother.
Defence counsel relied on alleged inconsistencies in the complainant’s statements in the VATE interviews and in cross-examination, relating to when she had told her friends about the abuse, to attack the complainant’s credibility. He contended that the complainant had fabricated her evidence that she had complained to her school friends a year before the matter was reported to the police. The inconsistencies were said to be particularly relevant to count 1 (incest occurring between 24 September and 31 December 2006) and count 2 (incest occurring between 1 January 2007 and 23 September 2007). Counsel told the jury that this inconsistency should give rise to a reasonable doubt about the applicant’s guilt of these offences.
Defence counsel also relied on the mother’s evidence that ‘[the applicant] didn’t bash me. There were two occasions where I called the police’, as an indication of the complainant’s unreliability.
Defence counsel did not explicitly refer to delay in complaint in his closing address. However, in a discussion with counsel before charging the jury, the judge noted that delay had been raised by the cross-examination of the complainant’s mother as to whether the complainant had told her about the alleged abuse. At the request of defence counsel,[3] the judge told the jury that they could take account of the delay in assessing the complainant’s credibility and then directed them that there may be good reasons why a victim of sexual abuse may delay in complaining, as he was required to do by s 61(1)(b)(i) of the Crimes Act 1958. His Honour referred to the possible reasons for delay that had been put forward by the prosecutor. The judge also directed the jury to take account of the forensic disadvantage that the accused might have experienced as a result of the delay. He did not give a propensity warning.
[3]See Crimes Act 1958, s 61(1)(b)(ii).
Neither counsel reminded his Honour of his previous intention to warn the jury about the limited use which could be made of the complainant’s evidence that she was scared of her stepfather because he was violent to her mother. No such direction was given. Nor was there any exception taken to the jury charge based on the failure to give a propensity direction.
Counsel’s submissions
Counsel for the applicant submitted that the judge should have directed that the DVD of the special hearing be edited to delete the complainant’s evidence that she was scared of the accused because he had been violent to her mother.[4] He submitted that defence counsel had assured the judge that the defence case did not rely on delay in complaint. In these circumstances, the evidence was not probative of any fact in issue and should have been excluded because of its highly prejudicial effect.[5]
[4]Evidence Act 1958, s 41H(2).
[5]Crimes Act 1958, s 398A.
At the hearing of the application, the applicant’s counsel maintained that delay in complaining was no part of the defence case below, even though defence counsel had cross-examined the complainant about who she had complained to about the offending and had cross-examined her mother PM about the lack of any complaint being made to her. The cross-examination of the complainant was directed, so it was said, to the complainant’s inconsistency in describing when and to whom she had complained, rather than to her delay in complaining. Counsel conceded that defence counsel had deliberately taken the risk of cross-examining the complainant’s mother about whether the applicant was violent, but said he had had to do so, because the judge had not ordered this part of the complainant’s evidence to be removed from the DVD of the special hearing.
In the alternative, counsel submitted that, even if the evidence were admissible, there was a miscarriage of justice because the judge should have directed the jury not to reason that, because the applicant was violent towards his wife,[6] he was likely to be the type of person who would sexually abuse his step-daughter. Counsel submitted that the violence against the mother could have led the jury to conclude that the applicant asserted control within the family relationship, and that the alleged offending might have been an example of his desire to assert control.
[6]R v Grech [1997] 2 VR 609.
In reply, counsel for the Crown submitted that the evidence was relevant in the way recognised by the judge in his ruling. Further, it explained why the complainant did not complain to a family member earlier and it was just to admit it despite its prejudicial effect.[7] He conceded that no propensity warning was given but submitted that this was not requested by defence counsel.
[7]Crimes Act 1958, s 398A(2); R v Loguancio (2000) 1 VR 235; R v Mateiasevici [1999] 3 VR 185.
Counsel further submitted that no miscarriage of justice had occurred because the judge had failed to give a propensity warning. The Crown had never asserted any link between the violence and the sexual offences. A propensity for violence was not connected to a propensity to offend sexually and would not have been seen by the jury in this way.[8] It did not logically follow that the applicant had a greater propensity to commit sexual offences against children because he was violent towards the complainant’s mother.
[8]R v Grech [1997] 2 VR 609; R v DCC (2004) 11 VR 129.
Conclusion on ground 2
In my opinion, his Honour was entitled to conclude that the probative value of the evidence about the applicant’s violence outweighed its prejudicial effect. The evidence emerged as a consequence of defence counsel’s attack on the complainant’s credibility, based on her saying in cross-examination that the accused was kind, although she had previously told MS that she was afraid of him. The evidence that the applicant was violent towards the complainant’s mother helped to explain why she had passively submitted to the applicant’s abuse and did not tell her mother about it. It helped to explain her state of mind and enabled the jury to consider the alleged offences on the presentment in a realistic context.[9] The jury would not have been able to evaluate the complainant’s credibility appropriately in the absence of such evidence.
[9]R vLoguancio (2000) 1 VR 235, 241-2 [15]-[18] (Callaway JA, Tadgell and Buchanan JJA agreeing).
Counsel contended that the evidence as to the applicant’s violence was not relevant to any fact in issue, because counsel did not rely on any delay in complaint. I would reject that argument. Whilst it is true that defence counsel did not explicitly refer to delay in complaint in his closing address, that issue was, to some extent, implicit in the attack made on the complainant’s credibility. The link between credibility and delay was made evident in the cross-examination of the complainant’s mother, who was asked whether she had had any previous indication of abuse from the child or any complaints about pain. Further, in defence counsel’s closing address, he referred to the mother’s evidence that there was no complaint of pain and that she had heard nothing. He said ‘you’d have to wonder how a girl could undergo this for once a week, she says, over a period of about a year and a half. May be even almost two years’. He also said that the jury was ‘being asked by the Crown to draw’ from the evidence that ‘there has been a long period of – going from 2006 to 2008 – of there being penetrative sex and that is a huge bow that the Crown are asking you to draw’.
In my opinion, the judge also correctly held that it was just to admit the evidence under s 398A of the Crimes Act 1958. If the evidence had not been admitted, the jury would have been misled on an issue bearing directly on the credibility of the complainant.
The question which then arises is whether the failure of the judge to warn the jury about the purposes for which that evidence could be used resulted in a miscarriage of justice.
It would have been preferable for his Honour to direct the jury about the limited purposes for which they could use the complainant’s evidence that the applicant had been violent to her mother. His Honour should also have told the jury that, even if they accepted that evidence, they should not reason that he was the kind of person likely to commit acts of incest.
However, in my opinion, the failure to give such a direction was not productive of a miscarriage of justice. The mother’s evidence that she had not been ‘bashed’ by the applicant removed some of the sting from the complainant’s evidence. More importantly, the alleged violence did not involve acts of a sexual nature. The Crown did not seek to make any link between the alleged offences and the evidence as to the applicant’s violence. Although the prosecutor’s closing address referred to the complainant’s evidence that she feared the accused, he made it clear that that evidence went solely to issues relating to the complainant’s credibility and her failure to tell her mother of the abuse.
Where evidence is admitted that an accused had committed acts of the same kind as those with which he or she is charged, the trial judge’s failure to give a propensity direction of the kind set out in Grech[10] will usually amount to a miscarriage of justice. This is because evidence that an accused has committed similar acts to the act with which he or she is charged is said to create the risk of the jury reasoning that the accused is the kind of person likely to commit the charged offences. The danger is that the jury may convict the person of the charges in the presentment without considering whether there is sufficient evidence to support those convictions.
[10][1997] 2 VR 609.
A Grech warning is generally required in sexual offence cases where the Crown leads evidence relating to other sexual acts by the accused against the complainant or another complainant.[11] Such a warning may also be necessary in cases not involving uncharged sexual acts where there is a danger that the jury will rely on propensity reasoning to convict the accused of the offences with which he or she is charged.
[11]See, for eg, R v Beserick (1993) 30 NSWLR 510.
In my opinion, the jury would have clearly understood that the purpose of admitting the evidence was to refute the attack on the complainant’s credibility and to explain her failure to complain to her mother. I do not consider that there is any danger that the jury might have convicted the applicant of count 3 on the basis that he was the ‘kind of person’ likely to commit incest because he may have been violent to the complainant’s mother. Indeed, the jury’s failure to reach a verdict on counts 1 and 2 indicates that they conscientiously considered the evidence relating to each count.
I am reinforced in my view by defence counsel’s failure to seek a propensity direction. Ground 2 would succeed if the Court considered that the lack of a propensity direction had resulted in a miscarriage of justice,[12] even though defence counsel did not take an exception to the charge. But in this case, the failure to seek a propensity direction suggests that counsel did not consider that such a direction was necessary. Indeed, he may well have made a forensic decision that it was preferable that this matter should not be emphasised in the judge’s jury charge.
[12]R v Wright (1999) 30 MVR 412; R v Ngo [2002] VSCA 188, [14] (Winneke P, Chernov JA and O’Bryan AJA agreeing).
For these reasons, ground 1 is not made out.
Ground 3
Ground 3 was as follows:
The learned trial judge erred by permitting the prosecutor to close to the jury on the basis that the applicant had admitted ‘strange behaviour’ towards the complainant of a sexual nature when this was no part of the prosecution’s case and, in the alternative, the learned judge erred by failing properly to direct the jury on such prosecution argument.
The circumstances giving rise to this ground
This ground concerned the part of the Crown’s closing address which referred to certain conduct, admitted by the applicant, as ‘strange behaviour of a sexual nature’. The relevant part of the closing address was as follows:
Finally, I want to deal with the accused’s record of interview, and the parts that I want to deal with are in the first interview, 30 July, and I don’t know what you make of it, but there seems to be in his two interviews, three episodes of what could be said, things of a - certainly two events he described, you could suggest are of a sexual nature in [LN’s] bed, and then the third one about getting in and, as he says, he just says he cuddles her. What you make of that, but certainly there are two aspects which suggest sexual activity in [LN’s] bed.
[Counsel then referred to answers given by the applicant in his record of interview about him once or twice sleeping in complainant’s bed after arguing with his de facto partner PM and masturbating to relieve tension. The applicant said that the last time this had happened was ‘probably a month or a month and a half, two, possibly ago’.]
Again, I don’t know what you make of it, but it seems to me to be quite - and just happens to be the bed that the prosecution allege that normally [LN] sleeps in where the accused man on occasions has sexually penetrated her. I suppose the highest I can put it, it’s strange behaviour, but it just happens to be the same bed that [LN] sleeps in. But then also couple it with what he says in the second interview; bearing in mind this is coming from the accused’s own mouth.
[Counsel then referred to the applicant’s answers in his police interview that he had taken off the complainant’s pyjama top, bottom and underwear and massaged her.]
‘I don’t know why he’s needed to take off her pyjama bottoms and her underwear, and her top, if she’s complaining of some sore legs, sore legs and a back but, in any event, everything’s off, she’s naked; she’s a nine year old girl. Into her bed, naked with him, rubbing.
I will just read the whole thing. ‘Now what the allegation is that she’s been in bed, you’ve come into the room, you removed your pyjama bottoms and underwear, removed your tracksuit pants,’ so this is in relation to inserting his penis into her vagina, but it follows through that this is what’s happened in the massage experience. He said, ‘Inserted your penis into her vagina?’ Answer: ‘All right’. That’s his answer, ‘All right’. The questioner says, ‘Sorry?’ He said, ‘I said, “all right”‘. ‘What do you want to say about that?’ ‘Well, what can I say?’ ‘Well, what do you say about that?’ ‘What can I say?’ ‘Well, do you deny that that’s happened?’ ‘Some of it may have’. ‘Well, would you like to tell us some of it - may have - sorry, would you like to tell me about that?’ ‘Well, I jumped into her bed with her, I jumped - I used to jump into the top bed with her while [her sister] went to sleep down the bottom. She was sore from cross-country or something, if I remember correctly, then I went to give her a massage’. ‘This is [LN]?’ ‘Yes, yeah. She asked me to give her a massage because her legs and back were sore from the cross‑country’. ‘Mm, yeah’. ‘So, yeah, so I did remove her top and pants and I worked on her legs down below’. ‘Right, why would you remove the top of her pyjamas?’ ‘Her top and her bottom of her pyjamas?’ ‘Yes’. ‘So I could massage her’. Questioner: ‘Yes, but why would you remove the top?’ Answer: ‘Well, there’s no sexual anything involved, and the way that I made my - I made myself, like she walks around the house all the time with no top on, it’s like it doesn’t mean anything’. Questioner: ‘All right, and when she was - when was that, do you reckon?’ ‘About a month or so ago’. Question: ‘Yes. Did she have her knickers on or not?’ Answer: ‘I don’t think she had anything’.
‘So do you know if she normally sleeps with underwear, or not?’ ‘Don’t know’. ‘All right. Did you touch her around the genitals at all during that period of time?’ ‘I touched her around the back of the thighs, yep, towards the back of the gluten or the gluteus, and the backside to massage the muscle through, yeah, all right’. ‘Did she say anything to you?’ ‘No’. ‘Did you insert your penis into her vagina at that stage?’ ‘No’.
It seems, again, quite a strange behaviour on the part of an adult male to climb up on to her bed, again where the prosecution say these offences occurred; have her take her clothes off and then to massage her legs and, as he said, the gluten or the gluteus in the backside to massage the muscle through. Again, could I suggest to you that’s strange behaviour from an adult male to engage in that sort of activity and, again, happening in [LN’s] bed.
The next issue he was asked about was how many times he’d got into her bed. ‘At any time - how many times have you got into bed with her?’ ‘She likes - I used to always jump in up there with her, she wanted, you know, cuddles, while [her sister] went to sleep, she’s a cuddly kid, she likes to have a cuddle’. ‘And what would you be wearing?’ ‘Probably these, minus the top because I get too hot up there’. Well, if he gets too hot up there, what’s he doing getting up there having had an argument with his wife, it’s obviously not comfortable for him up there but, in any event, he chose to get up there and masturbate himself, but in his record of interview he complained that he used to have to take his top off up there because it was too hot.
‘All right, so you’ve got a pair of blue tracksuit pants with a white stripe down the side’. ‘Probably - yeah, probably something along the line of a tracksuit pants and a top, you know, as in a jumper or jacket type thing’. He thought his relationship with [LN] was good.
And, finally, in relation to his record of interview, he was asked, on the occasions that when he’d get into bed with [LN], he was asked, this is at 85 of the second transcript, ‘And how long would you be in bed with her on those occasions?’ He’d say, ‘Anywhere between five to 20 minutes, depending on how long it took [her sister] to go to sleep’. Well, if he’s up there for the time between five to 20 minutes, you would expect that that would certainly give him enough time to sexually penetrate [LN], it’s not as if he’s saying he just jumped up there, gave her a cuddle, settled her down and left; he certainly seemed to be staying there for quite some time.
Again, I don’t know what you make of those aspects of the record of interview, but to me they represent some strange behaviour of a sexual nature, all occurring in [LN’s] bed, and that’s the bed where the prosecution say that these offences occurred.
Again, I don’t know what you make of those aspects of the record of interview, but to me they represent some strange behaviour of a sexual nature, all occurring in [LN’s] bed, and that’s the bed where the prosecution say that these offences occurred.
Counsel’s submissions
Counsel submitted that the only purpose of the prosecutor’s characterisation of the applicant’s behaviour as ‘strange’ was to invite the jury to make either one of two inferences. Both of these were said to be productive of a miscarriage of justice because they were unaccompanied either by appropriate directions or by further articulation of the Crown case.
The first inference which the jury could have drawn from the prosecutor’s reference to ‘strange behaviour’ was that the applicant was lying about his behaviour because he knew that he was guilty and was trying to distance himself from the possibility of conviction. The prosecutor’s characterisation was not merely an exhortation by the prosecutor to reject the applicant’s explanations, but ‘cried to the four winds’ of consciousness of guilt.[13] Thus the judge should have given an Edwards direction.[14]
[13]See Dhanhoa v The Queen (2003) 217 CLR 1; R v Chang (2003) 7 VR 236.
[14]See, for eg, Edwards v The Queen (1993) 178 CLR 193; R v Russo (2004) 11 VR 1, 3-4 [6] (Winneke P), R v Renzella [1997] 2 VR 88, 91 (Winneke P, Charles and Callaway JJA); Martinez v Western Australia (2007) 172 A Crim R 389; Zoneff v The Queen (2000) 200 CLR 234.
The alternative inference it was said the jury had been invited to draw was that the ‘applicant was telling the truth (but not the whole truth) and, as such, was a “strange” person in an objective sense and thus the type of person who would commit the charged offences’. Counsel submitted that, in the absence of an assertion that the applicant had a sexual interest in the complainant, this involved inappropriate propensity reasoning. If the Crown had alleged that the applicant had such an interest in the complainant, such reasoning would have been permissible, but would have had to have been accompanied by appropriate directions to the jury. The jury should have been directed that if they relied upon this evidence to establish guilt, it would have to be proved beyond reasonable doubt[15] and that the jury should not reason that the applicant was ‘the kind of person’ likely to have committed the offences with which he was charged.
[15]R v Sadler (2008) 20 VR 69, 89 [65] (Nettle, Redlich and Dodds-Streeton JJA).
In response to questioning during argument, counsel submitted that it was not clear whether the massage incident admitted to in the applicant’s record of interview was relied upon by the Crown as evidence of the circumstances surrounding the commission of count 3. Counsel submitted that, if it were, the applicant’s submissions relating to consciousness of guilt were strengthened, since it would mean that the Crown were asserting that the applicant had deliberately lied by not describing the entirety of the incident. If it were not relied upon as relating to any particular count, then the evidence was relied upon, it was said, to support the inference drawing on propensity reasoning.
In reply, counsel for the Crown submitted that there was no need for an Edwards or Zoneff warning to avoid a miscarriage of justice. He submitted that the prosecutor’s characterisation of the applicant’s explanations as ‘strange’, when read in context, simply adverted to the improbability of the answers given by the applicant in his record of interview. Counsel conceded that the applicant’s answers in his record of interview could have been relied upon as evidence of his consciousness of guilt, but said that they were not relied upon as such. This was why, he submitted, at no stage of the address were expressions such as consciousness of guilt, post offence behaviour or implied admission used.
Counsel also relied on the failure of defence counsel to make complaint about the prosecutor’s description of the applicant’s answers.
Conclusion on ground 3
Where the prosecution does not rely on a lie as evidence of consciousness of guilt, it is generally unnecessary for an Edwards direction[16] to be given. As McHugh and Gummow JJ said in Dhanhoa v The Queen:[17]
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff,[18] every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.[19] Zoneff was said to be an unusual case,[20] and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies.
[16]Edwards (1993) 178 CLR 193.
[17](2003) 217 CLR 1, 12 [34] (Gleeson CJ and Hayne J). See also McHugh and Gummow JJ (at 17-18 [59]-[61])
[18](2000) 200 CLR 234.
[19]Zoneff (2000) 200 CLR 234, 244 [16] (Gleeson CJ, Gummow, Gaudron and Callinan JJ); R v Burge [1996] 1 Cr App R 163, 173.
[20]Zoneff (2000) 200 CLR 234, 245 [23] (Gleeson CJ, Gummow, Gaudron and Callinan JJ).
I was initially concerned that the jury might have considered that the applicant’s statement in his police interview that he had masturbated in the complainant’s bed was a pre-emptive attempt to explain why his DNA might be found on the mattress. On this view, it would have been necessary for the judge to give an Edwards direction, because the applicant’s statement could have been regarded as an implied admission of guilt. However, the DNA evidence led at trial was not linked to the applicant and the hypothesis that the applicant lied because he feared such evidence would be found was not put to the jury. Nothing in the Crown’s closing address invited the jury to infer the applicant’s guilt from the fact that he might have told lies in his interview.[21] In these circumstances, I do not consider that any injustice arose from the failure to give an Edwards or Zoneff direction.
[21]Cf R v Mateiasevici [1999] 3 VR 185.
Nor do I consider the applicant’s statement that he had got into the complainant’s bed and masturbated required a Grech warning. It is fanciful to suppose that a jury would regard the fact that an adult male masturbated as evidence of a propensity to commit incest, even in circumstances where the masturbation occurred in the complainant’s bed.
Counsel for the applicant also submitted that the Crown’s reference to the applicant’s ‘strange behaviour of a sexual nature’ in getting into the complainant’s bed and massaging her, invited the jury to engage in propensity reasoning. I would also reject that submission. This evidence related directly to the counts with which the applicant was charged. It was not evidence of ‘uncharged acts’ called to show that the applicant had an improper sexual interest in the complainant. The Crown was simply inviting the jury to reject the applicant’s account that he got into the bed with the applicant and massaged her on the occasion when count 3 occurred, but did not have intercourse with her.
Ground 1
Ground 1 alleged that:
1.The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence.
In his written submissions, counsel for the applicant relied on the following matters in support of the complaint that the verdict was unsafe and unsatisfactory:
(a) the failure of anyone becoming aware of the alleged offending;
(b) the lengthy period of time between offending and complaint;
(c) the varying accounts given by the complainant as to when and where the alleged offending began, and whom she had told about it;
(d) the fact that the allegations were vague and lacking in circumstantial detail. Counsel submitted that a real possibility was that there had been some kind of sexual interference but that it was not penile-vaginal penetration and the complainant, because of her youth, was confused about this; and
(e) the complainant’s evidence that she had, on one occasion, ‘had sex’ with her brother when she was 7 years’ old.
In relation to (c), defence counsel drew attention to alleged inconsistencies in the complainant’s evidence about when she first complained to friends about the abuse. The complainant’s first VATE statement to the police was made on 17 July at 12.15 am the police had gone to the complainant’s home and after she was taken to the police station. The interview concluded at 1 am. In passing, I note that it was most unfortunate that the complainant, a 10 year old child, was interviewed in these stressful circumstances.
After some preliminary questions, the complainant was asked what she was telling her friends on Monday. She said they had asked her if she was a virgin and she had said no. She was then asked what she had meant by that and she said she had had sex before and this happened ‘when [the applicant] comes into my room, that’s what he does’. After describing the sexual acts, she was asked ‘when was the last time that it’s happened’ and she said it was about a month ago on a school night. Later in the interview, she said that she had told her friends about what happened. When asked their names she said L, M, J, MS and N, but had not told them everything. She was then asked when was the first time it happened and she said ‘about nine’.
In her second VATE, made on 21 July 2008, she was asked about the ‘first time’ that something happened. She again described what had occurred and said that it happened when she was about nine and in grade 3. She said that her stepfather had put his ‘rude part’ inside her. She said this also happened when she was in grade 4.
She said that the first people she had told about the applicant having sex with her were L and J. The following exchange then occurred:
INTERVIEWER: Oh, [L] and [J]. And when did you tell [L] and [J]?
COMPLAINANT: I don’t know, I think it was the last time or the time before.
INTERVIEWER: So when would that have been?
(NO VISUAL OR AUDIBLE RESPONSE)
INTERVIEWER: So is that sometime this year or sometime last year?
COMPLAINANT: This year.
INTERVIEWER: This year. Alright. And was it before this school holidays or after these school holidays?
COMPLAINANT: Before.
INTERVIEWER: Before. Alright. And what did you tell [J] and [L]?
COMPLAINANT: Just what [the applicant] did.
INTERVIEWER: Okay. Alright. Is there anyone else that you’ve told about what [the applicant] had been doing?
COMPLAINANT: . . . . .
INTERVIEWER: Who else did you tell?
COMPLAINANT: I told [MS] and [N].
INTERVIEWER: [MS] and [N]. And did you tell anyone – any of your other friends when you were in another grade?
COMPLAINANT: No.
At the special hearing, the complainant agreed with counsel for the Crown that the sexual acts had started when she was about nine and occurred about once a week until she was interviewed by the police.
In cross-examination, the complainant said she had first told L,[22] J and M the previous year when she was in grade 4 and told MS the year after (that is ‘when everything happened’). Defence counsel put it to the complainant that she had previously said that she had told her friends on the previous Monday that she was not a virgin and that her answers were inconsistent. In his closing address, he compared her answers in the VATE interviews to her answers in cross-examination. In response to the question why she had said she had spoken to her friends on the previous Monday, she said it was scary and she was tired.
[22]The transcript reads ‘Ryan’ but counsel appears to have heard this as Lauren, to whom the remainder of the passage of transcript refers.
In his closing address, counsel then referred to the cross-examination and described the inconsistencies on which he relied:
‘what was scary about answering the question that you were told the year before last; what was scary about that?’ And she says, ‘I’m not saying the question was scary, I’m saying the whole lot was scary’. ‘All right, are you saying you made a mistake when you said, “I don’t know, it was the last time or the time before?”‘ And she says, ‘Yes’.
It was put to her about the previous question I just asked … but I then asked, ‘What about when you were asked, “So this is some time this year or some time last year?” and you said, “This year.” So you were scared then too?’ And she says, ‘Sorry, can you repeat that?’ Now I can be obtuse, I know that, but what was the difficulty in asking, the form of that question. I continue on. ‘[You] were further asked by Vicky … “So is that some time this year or some time last year?” and you answered, “This year.”‘
‘So you were tired and scared when you answered that as well, were you?’ And she says, ‘I don’t know’. Then I said, ‘Why did you say this year?’ There’s no audible response. That is the cross‑examination that you saw. That’s her when Mr Bessell and I asked her questions. What I’m saying to you, ladies and gentlemen, that that is an example of what I say is a ten year old girl who is also a girl who has got her wits about her who is loose with the truth and is – I think I used the term tailoring her answers.
At the hearing of the application, counsel for the applicant relied mainly on an alleged inconsistency between the jury’s failure to reach a verdict on counts 1 and 2 and its majority verdict on count 3. He submitted that the failure to reach verdicts on counts 1 and 2 indicated that some members of the jury did not find the complainant a compelling witness. The nature of the complainant’s evidence did not, it was said, provide any real basis for distinguishing between the counts. It followed, he submitted, that the guilty verdict was a compromise verdict.
In reply, counsel for the Crown submitted that the relevant question was whether the jury must have entertained a doubt about count 3.[23] He submitted that the judge gave a direction to the jury that they consider each count separately, and that defence counsel’s closing address concentrated on inconsistencies or improbabilities in relation to counts 1 and 2. Counsel submitted that, in those circumstances, the jury might have accepted that the complainant was a credible witness but, in light of defence counsel’s closing address, not been persuaded beyond reasonable doubt of the applicant’s guilt of first two counts. Count 3 could also be distinguished because the events were said to have occurred shortly before the complaint to the police.
[23]R v Vjestica (2008) 182 A Crim R 350, 368-70 [59]-[64] (Maxwell P, Buchanan JA and Whelan AJA).
Conclusion on ground 1
In considering ground 1, the Court must take account of the whole of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of count 3.[24] In answering that question:
The Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the Court must pay full regard to those considerations.[25]
[24]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); see also SKA v The Queen [2011] HCA 13.
[25]M v The Queen (1994) 181 CLR 487, 493.
Having examined the whole of the evidence, I consider that it was open to the jury to find the applicant guilty on count 3. The mattes relied on in counsel’s written submissions are set out above at (a) to (e) of [54] and are commonplace features of cases in which accused are convicted of sexual offending against children.
So far as (d) is concerned, I do not accept that the complainant’s evidence was ‘vague and lacking in circumstantial detail’. Although the complainant was only 10 years old, her account of the events giving rise to count 3 was coherent and consistent.
It was put to the complainant in cross-examination that the sexual abuse of her by the applicant stopped short of penile-vaginal penetration. The complainant said both in her VATE tape and in her answers in cross-examination that the applicant had penetrated her. In relation to (c), I do not consider that the complainant’s evidence that she had, on one occasion, ‘had sex with her brother when she was 7 years old’ required the jury to find that there was a reasonable doubt that the applicant’s committed count 3.
It may be unnecessary to consider the argument that the complainant gave an inconsistent account of when she had complained about the earlier offences, because the applicant was not convicted of those offences. But in any case, my reading of the complainant’s statement in her first VATE tape was that she was then responding to questions about the most recent offence, about which she had undoubtedly complained to her friend, MS, shortly before the matter was reported to the police. In cross-examination, defence counsel asked her: ‘Why didn’t you tell [the policewoman] that this conversation had happened a year before?’. She replied ‘I think she meant that it was the year that I told [MS]’.
Nor am I persuaded by the argument that the jury’s failure to reach a verdict on counts 1 and 2 was inconsistent with the applicant’s conviction on count 3. As counsel for the Crown submitted, a complaint of inconsistency must necessarily be more difficult to make out where the alleged inconsistency is between a verdict of guilty and a failure to reach verdicts on other counts.
Further, in his closing address, defence counsel said that the inconsistencies in the complainant’s evidence as to whether she had told her friends of the complaint in 2008 or previously was specifically relevant to counts 1 and 2. The jury’s failure to reach a verdict on counts 1 and 2 could be regarded as based on defence counsel’s submission that ‘in going back to 2007 and 2006 you’ve gotta have some real doubts about that’.
There were also other features in the complainant’s account of events to which defence counsel drew attention. The main inconsistency was that the complainant told Sergeant Key that the first time any sexual assault happened was in her bunk bed, whereas in cross‑examination she said that it happened in her single bed. These matters might have caused the jury to experience a reasonable doubt in relation to counts 1 and 2, but not in relation to count 3.
Ground 4
This ground alleged that: ‘The learned trial judge erred by directing the jury on motive when no such motive had been argued by the applicant in closing’.
The judge gave the following jury directions:
In this case it was argued by the defence that the complainant had a motive for falsifying allegations against the accused. As I understood it, the defence - and you will recall this was put in cross-examination of the complaint …
The defence rely on the evidence that the complainant agreed that she had had sex with her brother and the unexplained DNA in the bed, and the fact that there was no DNA of the accused that was found in the bed, and they argued that the complainant had been caught out at school when she was talking to her friends about being a virgin, and when she was pressed about that and nominated the accused that she was protecting someone else. So, as I understand the reasoning, they are suggesting that she, in having discussions with friends, and talking about being a virgin or not, she told them that she wasn’t a virgin and then she said she’d had sex, and then it was put to her that she was then caught out and she was then covering up someone else - perhaps the brother or perhaps someone else and she then nominated the accused falsely. That seemed to be the argument as to a motive as to why the complainant may be not telling the truth here.
The Prosecution dispute this claim and submit that the complainant had no such motive. Now what is important about this is you understand that if you accept the submission by the Prosecution that she has no motive and reject the defence argument that the complainant was lying because she was endeavouring to cover something up and, therefore, blamed the accused, that is not the same as accepting that the complainant was telling the truth. All you are doing is eliminating one possible reason for rejecting the complainant’s evidence. It is still possible that she was lying. She may, for example, have a motive for lying that the accused does not know about. Just because you have rejected one possible motive does not mean there cannot be another.
Similarly, rejecting the motive suggested by the defence will not make the complainant’s evidence any more credible. You must assess the complainant’s credibility on the basis of her testimony and consideration of the other evidence in this case. Not on the basis of whether or not the accused can tell you why she might be lying. Remember, it is for the Prosecution to prove beyond reasonable doubt that the complainant is telling the truth. The accused is not required to prove his innocence or to prove that the complainant had a reason for making a false allegation. You can only convict the accused of these charges or any of these charges of incest if, on the basis of all the evidence, you are satisfied of his guilt beyond reasonable doubt.
Counsel for the applicant conceded that defence counsel had floated the idea that the complainant was lying because she wished to protect another person, but said that, ultimately, this was not pursued in cross-examination or argument.
In reply, counsel for the Crown submitted that, despite the absence of any reference to this matter in defence counsel’s closing address, the issue had been raised by defence counsel and that the direction did not give rise to any miscarriage of justice. This was reflected in the failure of defence counsel to seek a redirection.
Although defence counsel did not refer to the matter in his closing address, during his cross-examination of the complainant, defence counsel put it to the complainant that she had made allegations against her stepfather because she was ‘covering up for someone else’. She denied that this was the case. She agreed in cross-examination that she had previously had sex with her brother. When re-examined, she said that this had happened once before they had moved to Gisborne, when she was aged about seven years.
Unlike the jury charge in R v Rodriguez,[26] the jury charge did not invite the jury to convict the applicant because the complainant lacked a motive to lie. The judge correctly directed the jury that the prosecution had to prove beyond reasonable doubt that the complainant was telling the truth and that the absence of any motive to lie did not make the complainant’s evidence any more credible. There was no flaw in his Honour’s jury direction on this issue and no exception was taken to it. In my opinion, ground 4 is not made out.
[26][1998] 2 VR 167.
It follows that the application for leave to appeal against conviction must be refused.
COGHLAN AJA:
I agree.
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