Felix Horton (a pseudonym)[1] v The Queen
[2015] VSCA 319
•26 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0036
| FELIX HORTON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | REDLICH and KAYE JJA and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 5 October 2015 | |
| DATE OF JUDGMENT: | 26 November 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 319 | 1st Revision: 4 December 2015 – [1], n 2 |
| JUDGMENT APPEALED FROM: | DPP v [Horton] (Unreported, County Court of Victoria, Judge Montgomery, 27 January 2015) | |
---
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 16 – Indecent act with a child under 16 – Whether directions adequate – No evidence of recent complaint – Credibility of complainant –Re trial – Counsel sought directions given in previous trial – Whether application under s 61(1)(b)(ii) of Crimes Act 1958 – Failure to request direction under s 11 of Jury Directions Act 2013 – Kilby v The Queen (1973) 129 CLR 460; R v Taylor [No 2] (2008) 18 VR 613 considered; Worsnop v The Queen (2010) 28 VR 187 followed – Whether complainant’s evidence inconsistent with witness’s evidence – Whether prosecutor’s questions improper – Accused’s habit of nudity – Whether conviction unsafe and unsatisfactory – Application refused – Jury Directions Act 2013 ss 11, 15 – Crimes Act 1958 s 61(1)(b)(ii).
CRIMINAL LAW – Appeal – Sentence – Whether sentence and non-parole period manifestly excessive – Sentenced to six years, non-parole period four years – Violation of relationship between siblings – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Dickinson QC | Slades and Parsons |
| For the Respondent | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA:
Following a trial the applicant was convicted on two charges of sexual penetration of a child under 16 and two charges of committing an indecent act with a child under 16 and was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)][2] | 10 years [Crimes Act 1958 s 45(2)(c)] | 4 years’ imprisonment | Base |
| 3 | Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)] | 10 years [Crimes Act 1958 s 45(2)(c)] | 4 years’ imprisonment | 1 year |
| 4 | Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] | 10 years [Crimes Act 1958 s 47(1)] | 2 years’ imprisonment | 9 months |
| 5 | Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] | 10 years [Crimes Act 1958 s 47(1)] | 2 years’ imprisonment | 3 months |
| Total Effective Sentence: | 6 years | |||
| Non-Parole Period: | 4 years | |||
| Pre-sentence Detention Declared: | 18 days | |||
| 6AAA Statement: | N/A | |||
| Other relevant orders: | § Sentenced as a serious sex offender for charges 4 and 5 pursuant to s 6B of the Sentencing Act 1991 § Placed on the Sex Offenders Register with a reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 1994. | |||
[2]The Crown stated in its Written Case that the indictment incorrectly specified that the offence was contrary to s 45(1) of the Crimes Act 1958 when the relevant provision instead was 46(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991. However, pursuant to s 593(5) of the Crimes Act 1958, inserted by s 8(5) of the Crimes (Amendment) Act 2000, the offences under which the applicant was charged could be charged under s 45 because the offending was said to have occurred during the period 1 January 1992 to 21 September 1997. Section 593(5) relevantly provides that a charge or presentment may be filed against a person for an offence against s 45 of the Crimes Act 1958, as substituted by s 5 of the Crimes (Amendment) Act 2000, so long as the offence was not alleged to have been committed before 5 August 1991.
The applicant sought leave to appeal against his conviction and sentence on the following grounds:
1.Ground 1 — The Learned Trial Judge failed to direct the jury that in the case there was no evidence of recent complaint and failed to direct them adequately or at all on the consequences thereof. In particular he failed to direct the jury (sic) the absence could be used (sic) impact adversely on the complainant’s credibility and/or truthfulness.
2.Ground 2 — The Learned Trial Judge failed to direct the jury adequately on the complaint evidence given in respect of the father JO, the complainant’s friend Simone, the complainant’s boyfriend, the counsellor and the police.
In particular he failed to direct the jury that such evidence could not be used as supportive/corroborative of the complainant’s allegations.
And further he failed to direct the jury that such evidence could not be used as supportive of the credibility of the complainant.
3.Ground 3 — The evidence of the brother DO as to an incident involving a sexual assault or attempt thereto upon his sister MO and upon himself perpetrated by the applicant was inadmissible and should not have been led as it was purely speculative that it related to the same event as alleged in charge 5.
It impermissibly allowed the Crown to argue that charge 5 was supported by independent evidence.
4.Ground 4 — The Learned Trial Judge failed to direct the jury as to the use it may not make of the brother’s evidence if it was not satisfied that that evidence related to the complainant’s allegation in charge 5. … The jury should have been directed not to use the evidence as tendency evidence or as evidence of improper sexual interest in children or as contextual/relationship evidence.
5.Ground 5 — The Learned Prosecutor impermissibly undermined the evidence of the father (that no complaint was made to him) by putting an improper question and then attacking the credibility of the witness.
6.Ground 6 — The Learned Trial Judge failed to direct the jury that no significance should be attached to the accused’s habit of nudity.
7.Ground 7 — The Learned Trial Judge failed to direct the jury that an adverse finding as to the credit of the complainant on any one event or matter was capable of affecting their assessment of her credit generally.
8.Ground 8 — The convictions are unsafe and unsatisfactory.
In the course of the hearing, the applicant sought, and was granted, leave to amend ground 3. That ground has been reformulated as follows:
‘The learned trial judge erred in failing to direct the jury that DO's evidence could not support the complainant's evidence as to charge 5.’
The application for leave to appeal against sentence rests on one ground, being that
[t]he sentences (the individual and total effective) imposed are manifestly excessive as is the minimum term to be served before the applicant is eligible for parole.
For the reasons that follow, I would refuse leave to appeal against the applicant’s conviction and sentence.
Factual background
The charges relate to sexual offending by the applicant against a child complainant, MO. The charged acts occurred between 1 January 1992 and 21 September 1997. The applicant was born in 1961 and was between 30 and 36 years of age at the time of the offending. MO was aged between six and 12 years of age at the time of the offending. Her brother, DO, is approximately 16 months older than her.
MO’s father, a friend of the applicant, had separated from his wife and lived at the home of the applicant during the relevant period. MO and DO visited their father at the applicant’s home on a regular basis.
In her evidence, MO stated that the applicant had sexually assaulted her on five occasions. Of those incidents, four are the subject of this appeal. MO was unable to place the incidents the subject of the charges in chronological order. Her memory of events were limited to ‘flashes and clips of things’. She could not pin events down to a certain day, time of year or year itself.
On one occasion when MO and the applicant were sitting on the couch in the lounge room of his home, the applicant asked her to suck on his penis ‘like a lollipop’. MO did so. The applicant stroked his penis and ejaculated onto his stomach. MO could not recall how old she was at the time of this incident. This constituted charge 1.
At a time during the day when MO was sitting in the rumpus room of the applicant’s home watching television, the applicant entered the room. He sat down on the couch next to MO and engaged in small talk with her. He then put his hand down MO’s pants, played around with her vagina and asked her if she liked it and if it felt nice. He placed his fingers inside MO’s vagina. This constituted charge 3.
On another occasion, MO stated that she was lying down on the floor in the lounge room of the applicant’s home. The applicant came into the room holding a video camera. He coached the complainant to masturbate. The complainant thought she was younger than nine years’ old when this occurred because she did not remember having any pubic hair at the time. This constituted charge 4.
On an occasion after MO had a bath with her brother in the applicant’s home, she recalled being in the lounge room. The applicant was kneeling down near the coffee table and coaxing DO to have penile intercourse with his sister. DO was attempting to do so, but MO kept saying that it was sore and the incident ended. MO believed that she stopped having baths with her brother when she was about eight years’ old. This constituted charge 5.
Application for leave to appeal against conviction
Grounds 1 and 2: the complainant’s evidence of complaint
It is convenient to consider grounds 1 and 2 together, as they concern the same aspects of the complainant’s evidence. Evidence of her complaint to the police was led by the prosecutor in her evidence in chief. Evidence as to the making of complaints to various other persons as to the applicant’s offending, was all elicited from her during cross examination. The complainant said that she had complained to her father, her boyfriend, her friend Simone, and a counsellor (‘complaint evidence’). Other than the complainant’s father, these persons were not called by the prosecution to give evidence. Her father testified that he did not recall her making any complaint about the applicant.
Under ground 1, the applicant submits that the complaint evidence did not constitute ‘recent’ complaint. He further submits that the jury was not directed as to what use could be made of the absence of evidence of recent complaint. In particular, the applicant contends that the judge failed adequately or at all to direct the jury that the absence of recent complaint could be used to impugn the complainant’s credibility. That failure was particularly pronounced, the applicant submits, as the judge had directed the jury that there may be good reasons for delay in making a complaint.
The respondent conceded that the evidence did not constitute recent complaint, but submitted that the credibility of the complainant was never put in issue by defence counsel during cross-examination. It contended that the attack on the complainant was limited to her faulty memory and reliability. The directions given thus related to reliability and forensic disadvantage and not to how the delay or absence of complaint could affect the complainant’s credibility.
It is necessary to set out briefly material aspects of the proceedings below. The applicant’s first trial, which resulted in a disagreement by the jury, was in March 2014 on an indictment alleging six charges of sexual offending against the complainant (‘the first trial’). Prior to delivering the charge at the first trial, the trial judge, pursuant to s 11 of the Jury Directions Act 2013 (‘JDA’) inquired of counsel as to the directions they thought relevant. Amongst other matters, defence counsel submitted, and the prosecution agreed, that directions were necessary with respect to the forensic disadvantage flowing from the age and lack of specificity of the allegations. A direction was sought on the basis that DO’s evidence, which was inconsistent with MO’s evidence in some respects, had no relevance apart from supporting the complainant’s account on charge 5. An anti-propensity direction was also sought in respect of the accused’s practice of nudity.
With respect to the absence of recent complaint, the trial judge at the first trial foreshadowed that he would give a direction in which he would contrast the defence’s reliance on delay as undermining the complainant’s credibility (a ‘Kilby direction’),[3] with the prosecution’s position that there may be plausible and understandable reasons for delay. He observed that an application by the defence needed to be made pursuant to s 61(1)(b)(ii) of the Crimes Act1958 to establish the need for a direction as to credibility. Defence counsel made the application. The prosecution agreed that such a direction was appropriate. The judge also foreshadowed that the complainant’s reliability was also an issue, as delay would increase the likelihood of error in recollection. Further, the judge proposed to give a forensic disadvantage direction, as the accused had lost the opportunity to make inquiries at or close to the time of the alleged incidents. The charge incorporating those directions was duly given.
[3]Kilby v The Queen (1973) 129 CLR 460, 465 (‘Kilby’).
The applicant was tried again on the same charges in April 2014 before the same judge with the same counsel (‘the second trial’). It appeared to be assumed that the same directions would again be sought; the judge asked whether there were any ‘additional matters’ in order to comply with the JDA. In delivering the charge, the judge gave the same three-pronged direction as in the first trial concerning the relevance of an absence of recent complaint to the complainant’s credibility and reliability, and a forensic disadvantage direction. The second trial also ended without verdict as the jury was unable to agree.
The third trial in November 2014, which is the subject of this appeal, was presided over by a different trial judge, with different defence counsel than the previous trials. The complainant gave evidence. The evidence given by her father, brother and mother in one of the previous trials was played to the jury instead of those witnesses being called. The jury ultimately returned a verdict of guilty in respect of charges 1, 3, 4 and 5 and a verdict of not guilty in respect of charges 2 and 6.
During cross-examination of the complainant, defence counsel repeatedly put to her that her recounting of the incidents was founded on ‘flashes’ or ‘slots’ of memory. He repeatedly asked the complainant whether her assertions of having told her father of the allegations during an emotional scene were honest answers, the purpose being to expose the inconsistency of her evidence with her father’s evidence. The cross-examination was to the effect that her evidence that she had complained to her father, her boyfriend, Simone and the counsellor was not confirmed by any other evidence and was inconsistent with her father’s evidence. In his closing address, he reiterated that the complainant had a faulty memory. He also emphasised that she spoke of being confused. He highlighted the provision of different answers given on prior occasions concerning the complaint evidence as to who she had told of the allegations and when she had told them. In particular, he emphasised that she had raised the alleged complaint to Simone for the first time in this trial and that Simone had not been called to give evidence in support of that complaint. Defence counsel submitted in closing that, ‘[w]hether [the alleged complaint to Simone] affects her credibility, her reliability, is entirely a matter for you, but in my respectful submission it is of some significance.’
In parts of the defence closing address, counsel suggested that some alleged deficiencies in the complainant’s testimony may have been in part attributable to her post-natal depression which rendered her an unreliable witness. The respondent went so far as to submit that the complainant was not attacked as untruthful and her credibility was not in issue. I do not agree. It is in my view clear that defence counsel was impugning the complainant’s credibility as well as her reliability.
In the third trial, the judge asked counsel to identify the directions required before he charged the jury. Defence counsel said that he ‘probably would like the same directions as [were] given before’. The judge informed counsel that he did not have the charges from the previous trials. Defence counsel stated that he could email the charge to the judge’s associate. Nothing that occurred thereafter suggests that the trial judge did in fact receive an earlier charge. The appeal proceeded on the basis that it could not be shown that the trial judge had access to the earlier charges.
In response to the judge’s inquiry as to the directions that were required, defence counsel stated inter alia that directions were necessary as to ‘forensic disadvantage, delay, impact on credibility and reliability.’ A Liberato direction and an Azzopardi direction were also sought.
The absence of ‘recent complaint’ had long been regarded at common law as relevant to the credibility of the complainant.[4] The delay in making complaint has been seen as capable of undermining the complainant’s credibility.[5] The position at common law was fundamentally altered as a result of the amendments to s 61 of the Crimes Act 1958 and more recently the provisions of the Jury Directions Act 2015.
[4] Kilby (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; R v Miletic [1997] 1 VR 593; R v Matthews [1999] 1 VR 534; R v WEB (2003) 7 VR 200.
[5] Kilby (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; R v Freeman [1980] VR 1.
Section 61(1) relevantly provided at the time of the trial:
(1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence—
…
(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge—
(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and
(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning …
The prosecutor sought a direction pursuant to s 61(1)(b)(i) of the Crimes Act 1958 that there may be good reasons for delayed complaint. Significantly, defence counsel did not make an application for a direction under s 61(1)(b)(ii).
The trial judge gave two directions that applied to the absence of, or delay in making, complaint, namely, its impact on the complainant’s reliability and the forensic disadvantage to the accused. The judge also stated that there may be good reasons for delay in making complaint, in accordance with the prosecutor’s request pursuant to s 61(1)(b)(i) of the Crimes Act. It was implicit in the direction that there may be explicable reasons for an absence of recent complaint, such as embarrassment, that if the jury did not accept that there was good reason, that the complainant’s credibility could be affected.
The countervailing Kilby direction which counsel might have had in mind, was not given. It could not be given until counsel had made a successful application pursuant to s 61(1)(b)(ii) of the Crimes Act.
In the absence of the charges from previous trials being made available to the judge in the third trial, the perfunctory request for the same directions as had been given in previous trials was meaningless. The request for a direction as to ‘delay, impact on credibility’ was not particularly informative either. It is far from clear that counsel had in contemplation what is now the gravamen of ground 1, namely, that a direction was required that there was no evidence of ‘recent’ complaint and how its absence could affect the complainant’s credibility. As I have said, if counsel had in mind such a direction, he was required to make an application pursuant to s 61(1)(b)(ii) of the Crimes Act after evidence had been given, or a question asked of a witness, that tended to suggest delay in making a complaint.
On the appeal, counsel for the applicant sought to rely on the approach taken in R v Taylor [No 2].[6] In that case, in separate, but concurring judgments, Ashley and Kellam JJA and Hansen AJA held that s 61(1)(b)(ii), which at that time had been newly inserted into s 61(1)(b), applied to the proceedings before them. Nevertheless, it was determined, in respect of a ground which complained that the trial judge erred in the directions given to the jury concerning delay and complaint, that ‘it was necessary for her Honour to give a Kilby direction’.[7] However, the disposition of that case with respect to the giving of a Kilby direction depended entirely ‘[u]pon the footing that the trial and appeal were conducted’.[8] On the appeal in Taylor [No 2], both the applicant and the respondent agreed that s 61(1)(b) applied in its original form, that is to say, in the form the section took prior to the 2006 amendments in which sub-s 61(1)(b)(ii) had been introduced.[9]
[6](2008) 18 VR 613 (‘Taylor [No 2]’).
[7]Ibid 621 [39] (Ashley JA).
[8]Ibid.
[9]Ibid 632–3 [67] (Kellam JA).
As Vincent and Weinberg JJA observed in R v BDX,[10] in which a five-judge court was convened to decide the correctness of Taylor [No 2], Taylor[No 2] stands for the proposition that:
[Section] 61 of the Crimes Act 1958 no longer applied to trials conducted after the commencement of amendments made by the Crimes (Sexual Offences Further Amendment) Act 2006 (‘the amending Act’). This means that the less favourable position for accused persons with respect to delays in making complaint, which now applies by operation of s 61(1)(b)(ii) and (iii), also applies to any trial in which a presentment is filed after 1 December 2006, even if the charges were laid prior to that date.[11]
[10](2009) 24 VR 288.
[11]Ibid 305 [99].
Their Honours made it clear that the disposition of Taylor [No 2] turned on the manner in which the matter had been argued:
Despite that conclusion, the Court of Appeal in Taylor (No 2) proceeded to determine the application before it upon the same basis as both the trial, and the appeal, had been conducted. In other words, their Honours assumed, contrary to their actual finding, that the more generous provisions that had applied before the enactment of the amending Act continued to apply to the instant case. That meant that both a Kilby direction and a Longman warning ought to have been given.[12]
[12]Ibid 308 [111].
Counsel for the applicant in the present case therefore misconceives the proposition for which Taylor [No 2] stands. That the applicant’s argument is unfounded is evident from more recent consideration of this issue. This Court said in broadly similar circumstances in Worsnop v The Queen,[13] where the applicant complained of a miscarriage of justice flowing from the failure to give a Kilby direction:
The judge did not give a Kilby direction in the event that the jury concluded that there had been delay in complaint by TH. Her Honour was statutorily obliged not to give such a direction except in the circumstances set out in s 61(1)(b)(ii) of the Crimes Act. The directions thus had a one-sidedness about them. But that was a consequence of the operation of the statute in circumstances where applicant’s counsel did not make application under s 61(1)(b)(ii).[14]
[13](2010) 28 VR 187.
[14]Ibid 198 [50].
Section 61(1)(b) will not be satisfied by a request that a trial judge give the same direction as those given in previous trials, even if the trial judge had the charges from the first or second trial. Similarly, a request for a direction as to delay and its impact on credibility, if that is how counsel’s request is to be understood, would also fail to meet the circumstances set out in s 61(1)(b)(ii).
The judge was forbidden from giving the direction the subject of ground 1 unless the conditions of this provision were met. The statutory prohibition against the judge warning or suggesting to the jury that delay may affect the credibility of the complainant abolished the Kilby direction upon which the applicant now relies. The clear terms of s 61(1)(b)(ii) leave no room for judicial discretion to give a direction on these lines.
I reject the submission of the applicant made during the hearing that what defence counsel said to the trial judge amounted to compliance with the circumstances set out in s 61(1)(b)(ii). This was a separate trial in which the complainant had given evidence and been cross-examined about delay in making complaint. There had to be an application to the trial judge that satisfied him that there was sufficient evidence of delay and that it affected the complainant’s credibility as to justify giving the direction. In the absence of an application under s 61(1)(b)(ii), it cannot be assumed that his Honour, an experienced judge, should have recognised that counsel was seeking the direction under that provision. And, counsel having failed to make that application, the judge was prohibited from giving the direction the subject of ground 1.
Furthermore, s 11 of the JDA requires legal practitioners to seek necessary directions in respect of the matters in issue. Section 13 exempts the judge from giving directions that are not requested unless s 15 applies. Defence counsel failed to comply with the obligation set out in s 11. Defence counsel did not take exception to the charge given to the jury. If what counsel had contemplated was a direction under s 61(1)(b)(ii), it should have become apparent that such a direction had not in fact been given. There was a continuing obligation under s 11 of the JDA to request such a direction. In Xypolitos v The Queen,[15] this Court emphasised that the obligation upon counsel to seek relevant directions persists for the duration of the trial. The Court said:
Section 10 [of the JDA] identifies the point in the trial at which counsel must assist the judge in identifying the issues. Upon the issues having been identified, counsel’s duty is enlivened, to request particular directions with respect to matters in issue, or relevant to matters in issue. From that time onward counsel has a continuing obligation to inform the judge of any directions that are required. There is no temporal limitation on counsel’s duty. It subsists for the remainder of the trial. If matters emerge in the parties’ closing addresses that require a direction not previously identified as necessary, they must be drawn to the judge’s attention. If the judge in his or her charge fails to give a direction that was anticipated, including any of the general directions, counsel is obliged to identify the need to do so. If the judge misdirects the jury in the course of the charge, the obligation to take exception remains. Where a misdirection occurs, the need for a further direction to correct it will ordinarily arise. There is thus no material distinction to be made between a non-direction and a misdirection. In either event the Act obliges counsel to identify the direction that is required and request the necessary direction be given. This ongoing duty is consistent with, and reflective of, the common law obligation imposed on counsel to take any necessary exception to matters raised in the charge. That duty is now subsumed within the continuing duty which subsists until verdict to identify any necessary direction that should be given.[16]
[15][2014] VSCA 339 (‘Xypolitos’).
[16]Ibid [32] (citations omitted).
In R v Wright,[17] this Court, speaking of the previous common law obligation to take exception, said:
It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal. This case stands as a warning not only that defence counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court, but also that the failure to take exception may prevent the issue being raised on appeal.[18]
[17](1999) 3 VR 355.
[18]Ibid 356. See also R v Caine (1990) 48 A Crim R 464, 475; R v Roberts (2001) 53 NSWLR 138.
The continuing obligation to request directions is a matter of fundamental importance to the way trials in the State are to be conducted and the failure to meet that obligation will ordinarily prove fatal.[19] It is only in unusual circumstances that the applicant may rely on the failure to give a direction where the continuing obligation has not been satisfied. It was not suggested on appeal that this was such a circumstance.
[19]Murrell v The Queen [2014] VSCA 334.
Before leaving this ground it should be noted that both parties in their closing addresses discussed the issue of delay in complaint and how that could affect the complainant’s credibility. Although the trial judge was constrained as to what he could say, he referred to the fact that both counsel had addressed the jury on the issue of delay and complaint. It was made clear to the jury that delay in complaint could bear upon the complainant’s credibility. It would also have been apparent that the trial judge gave them the direction, pursuant to s 61(1)(b)(i) that there may be good reason why a victim of sexual assault delays in making complaint because the delay could bear upon her credibility. Although the jury was not given the warning set out in s 61(1)(b)(ii), when the parties’ arguments in closing and the judge’s charge are taken into account, there was no substantial risk that the jury would have failed to appreciate that such delay, as they found, absent good reason for the delay, could affect the complainant’s credibility.
I would refuse leave to appeal on ground 1.
Under ground 2, the applicant argues that the trial judge failed to direct the jury that the complainant’s evidence in cross examination that she had complained to various nominated persons could not be used as supportive of her allegations or her credibility.
The applicant submitted that the requests for directions discussed under ground 1, constituted sufficient compliance with s 11 of the JDA. That contention cannot be sustained. Neither the references to the directions given in the previous trials, nor the request for a direction as to ‘delay, impact on credibility’ identified the particular issues set out in ground 2 or the directions required to deal with them. No directions of the kind now sought was requested, contrary to the obligation of counsel under s 11 of the JDA.
Although the applicant’s argument was confined to the contention that a request had been made for such directions, I should for completeness express my opinion that the directions under ground 2 were not necessary to avoid a substantial miscarriage of justice so as to enliven s 15 of the JDA. In Xypolitos, this Court interpreted the obligation under s 15 in the following words:
Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial.[20]
[20][2014] VSCA 339, [44] (emphasis in original).
The complaint evidence was deliberately elicited by defence counsel in order to undermine the complainant’s credibility and reliability. It was said to do so in a number of ways. First, at least one of the assertions was made for the first time in the third trial. Second, her father’s evidence contradicted her evidence that she complained to him. Third, the prosecution was not calling any of the persons to confirm her assertion of complaint to them. From the nature of defence counsel’s cross-examination and closing address, and the judge’s charge during which his Honour summarised parts of the defence argument, each of these purposes would have been well understood by the jury.
The Crown did not rely upon the complaint evidence as supporting its case against the applicant or as bolstering her credibility. The defence, who relied upon the complaint evidence, submitted that the absence of confirmatory evidence from those persons to whom the complainant asserted she had complained, undermined her credibility. The judge summarised the defence submission in that regard. I do not accept that there was any real risk that the jury would have viewed the complaint evidence as supportive of either her allegations or her credibility. The fact that defence counsel did not ask for such directions and took no exception is indicative of the fact that no such direction was necessary.
I would reject ground 2.
Grounds 3 and 4: DO’s evidence as to charge 5
Grounds 3 and 4 are most conveniently dealt with together. They relate to the evidence of the complainant’s brother, DO. The applicant submits that the trial judge erred in failing to direct the jury that it could not use DO's evidence as supportive of the complainant's evidence as to charge 5.
I have had the advantage of reading, in draft, the judgment of Kaye JA as to the disposition of ground 3. I agree for the reasons he gives and those that follow that this ground fails.
During the first trial, the Crown intended to use DO’s evidence as both tendency evidence and evidence supportive of the complainant’s allegations on charge 5. The prosecutor ultimately resiled from that course and relied upon DO’s evidence only as evidence supportive of the complainant’s account on charge 5.
MO and DO were each asked whether they recalled ‘an incident’ that took place after the siblings had a bath together. They each responded that they did and proceeded to describe that incident. There was no suggestion in either of their accounts that more than one incident occurred following a bath together which involved the applicant. Both DO and the complainant broadly agreed as to how old they were at the time the offence occurred, namely that MO was about seven or eight years of age and DO was around nine years of age.
Critically, on DO’s account, the complainant performed the alleged indecent act; he played no active role in its commission. During re-examination, DO suggested that embarrassment had prevented him from speaking of the incident to anyone else. It was well open to the jury to conclude that DO may have withheld, or moderated, evidence suggesting that he had been coached into sexually penetrating his sister. They may have concluded that he was inhibited from providing a full and forthcoming account of the incident. The jury had the opportunity of comparing MO’s demeanour in the evidence she gave in the third trial with that of DO, in his recorded evidence. It need not be laboured that an appellate court, not having had the advantage of viewing that evidence itself, should be cautious to substitute its views on the credibility of DO for that of the jury.
Moreover, the judge had forestalled the possibility of the jury relying on DO’s evidence as the primary basis for convicting the accused on charge 5. He had directed the jury that it had to accept the complainant’s version in order to be satisfied beyond reasonable doubt of the accused’s commission of the conduct the subject of charge 5. It was not to substitute the evidence of DO for that of the complainant, but simply draw on it to the extent they concluded it was supportive of the complainant’s account.
The trials took place some two decades after the offending. The events occurred at a time when the complainant and her brother were quite young, being approximately seven or eight years and nine years of age respectively. Compounding the difficulty of recollection would no doubt have been the traumatic nature of the experience. Furthermore, the evidence of both the complainant and DO could reasonably have given the jury cause not to hold their memories up to an exacting standard of precision, whilst falling short of prompting serious misgivings about the veracity of what was said. In the complainant’s case, she had said that her memory was prone to gaps and that her recall of the incidents was limited to flashes. In DO’s case, he had admitted in cross-examination that he had a ‘pretty bad’ memory of the event, referable to its occurrence many years ago and its traumatic content. He had also admitted to taking drugs, which had impaired his memory.
Taking all these factors into account, it was open to the jury to conclude that the common features of their accounts supported the complainant’s evidence that some incident of that general nature had occurred at that time. The jury was entitled to conclude that the discrepancies in the accounts were attributable to explicable lapses in memory without necessarily undermining the general credibility or reliability of the witnesses. Indeed, in view of these features, uniformity or striking resemblance in the accounts provided may have had the contrary effect of suggesting to the jury that the evidence had been contaminated in some respect.
The jury had been given the standard direction that it could accept or reject any witness’s evidence in whole or in part. Consequently, the jury was entitled to rely on the complainant’s account of the conduct the subject of charge 5, while drawing on DO’s evidence to the extent that it was supportive of that account. Put more particularly, DO’s evidence supported the complainant’s allegations that an instance of the applicant coercing DO and MO into sexual conduct involving one another had occurred after he and his sister had a bath together. During this time, they were on the floor of the lounge room, near the heater. The applicant was in close proximity to DO and MO, either kneeling on the floor or less than half an arm’s length away from the complainant. To the extent that DO’s evidence contradicted the allegation that he was instructed to lie on top of her and attempt sexual penetration, it was open to the jury to give minimal weight to that part of his account that differed from the complainant.
The defence was content for the Crown to maintain that the account of DO was credible and related to charge 5. In none of the three trials did experienced defence counsel object to the admissibility of DO’s evidence. The failure to do so was the product of a calculated decision by each defence counsel to rely on DO’s evidence as a basis for raising a reasonable doubt in the minds of the jury as to whether the applicant was guilty of the conduct the subject of charge 5.
It is well established that ‘the exercise of forensic judgment goes to the heart of our system of criminal law’.[21] As this Court has recognised, ‘[i]f the failure [to object] is explicable as a legitimate forensic choice, then generally an appellant will be bound by counsel’s choice.’[22] This Court will not lightly arrive at the conclusion that appellate intervention is warranted when decisions having strategic value are made by experienced counsel in the adversarial context of a trial.
[21]R v Arundell [1999] 2 VR 228, 249 [53].
[22]De Silva v The Queen (2013) 236 A Crim R 214, 220 [28], citing Ali v The Queen (2005) 214 ALR 1, 5 [9] (Gleeson CJ), 7 [23] (Hayne J), 22–3 [98] (Callinan and Heydon JJ).
In any event, no request was made that the judge direct the jury in the terms suggested under ground 3. Counsel was obliged by s 11 of the JDA to do so. I have earlier in these reasons referred to the serious consequences of a failure to do so. For these and the reasons of Kaye JA, I would refuse leave to appeal on ground 3.
Ground 4 is expressed in the alternative to ground 3. Should the jury have correctly found that DO’s evidence did not relate to the event underlying charge 5, the applicant contends that the jury ought to have been directed not to use DO’s evidence as tendency evidence, evidence of improper sexual interest in children, or contextual or relationship evidence. The failure to do so, the applicant submits, resulted in the placing of uncharged acts into evidence. It is said that the judge ought to have given a direction of the kind now sought by the applicant, pursuant to s 15 of the JDA.
At trial, the risk was recognised that DO’s evidence might erroneously be applied more generally by the jury; for this reason defence counsel had sought, and obtained, a direction that his evidence was to be confined to charge 5. It was agreed that the judge should direct the jury that it could only convict the applicant on charge 5 if it were satisfied of the complainant’s allegations, that DO’s evidence could only be used as supportive of the complainant’s account if the jury were satisfied that DO’s evidence related to charge 5 and that DO’s evidence was not relevant for any other purpose than on charge 5.
Defence counsel did not request an anti-propensity direction. Given the stringency of the obligation under s 11 of the JDA, the applicant cannot now complain. As the Crown submits, there was an obvious and sound forensic reason for the defence not to seek a direction concerning ‘forbidden chains of reasoning’ which would have alerted the jury to the fact that the evidence might in other circumstances have been used in respect of all charges.
Such a direction was not necessary to avoid a substantial miscarriage of justice. The Crown made no attempt to rely on DO’s evidence as evidence of an uncharged act or as tendency evidence. The direction given by the trial judge made the limited use of the evidence very clear. His Honour placed great emphasis on the separate consideration of evidence for the charges:
[E]ach charge must be considered separately in relation to the evidence concerning that [charge]. The evidence of the brother only concerns charge 5. You can’t use that in connection with any other charge, if you were to use it at all, so that’s only to do with charge 5.
…
And as I have told you the evidence of brother [DO] is only admissible and relevant to Charge 5, nothing else, it cannot be used when you are considering any of the other charges.
…
Remembering that the account of the brother, if you find it is a different account, you cannot convict [the accused] if you did not accept [the complainant’s] version of charge 5, beyond reasonable doubt, well, that is the end of the matter. You cannot then go to [her brother’s] version and convict on that because that is not what is alleged.
Implicit within a direction requiring the jury not use DO’s evidence more generally was the prohibition against using it as tendency evidence, evidence of improper sexual interest in children, or contextual or relationship evidence. That the jury acquitted the applicant on charges 2 and 6 further supports the conclusion that the jury followed the direction to limit the potential use of DO’s evidence to the factual inquiry in respect of charge 5.
I would refuse leave on ground 4.
Ground 5: the reliability of the complainant’s father
The father’s evidence from the first trial was played to the jury. The applicant now submits that the prosecutor at that trial impermissibly undermined the evidence of the father that no complaint had been made to him. That contention rested on the manner in which the prosecutor led the father’s evidence in chief at the first trial. The impugned exchange is as follows:
Do you recall [the complainant] ever telling you about [the allegations she made against Horton]?‑‑‑No.
When’s the first thing you heard about the fact that she was making these allegations?‑‑‑When the police officer, Danielle, rang me and asked for an interview.
You described alcohol and apnoea. Were there any other matters in the 90s that affected your memory at all?‑‑‑I had had a nasty fall off a horse where I was unconscious for about a week in hospital.
The applicant submits that the first question was improper. It was said that the emphasis on whether the witness ‘recalled’ being told of the allegations presupposes that he had forgotten what the complainant had said to him. The question with respect to the witness’s alcohol and sleep problems was an attack on the witness’s memory and improperly bolstered the complainant’s claim to have informed her father.
At committal, MO had said that she believed that her father was in the room, asleep on the couch, during the incident giving rise to charge 5.[23] Given the witness’s alleged presence during the conduct the subject of charge 5 and MO’s claim to have complained to him, the reliability of the complainant’s father as a witness was a relevant matter. The evidence from the complainant and her brother about their father’s significant alcohol consumption and habitual passing out on the couch had not been challenged. As the Crown submits, the prosecutor was entitled to ask whether the father’s drinking and health issues affected his memory.
[23]In the third trial, in cross-examination, MO said that she believed that her father was in the room, asleep on the couch, during the incident comprising charge 4. She said that she could not recall seeing her father present during the incident comprising charge 5. She accepted that she had previously said at committal that her father was passed out on the couch during the incident comprising charge 5.
The prosecutor’s manner of questioning may be described as infelicitous. To ‘recall’ is ‘to bring back in mind’. The word is frequently misused when asking a witness whether an event occurred. Plainly, defence counsel in the first trial adverted to the flaws in such an approach by twice objecting to the prosecution’s questioning about whether the witness’s drinking and sleep apnoea affected his thinking and about whether any other matters affected his memory. All the same, it could not be called a serious transgression. That view is supported by counsel for the accused failing to request a direction or seek a discharge of the jury when the evidence was directly given in the first trial. Although defence counsel in the third trial would have been well aware of the content of that evidence and the fact that it was to be played to the jury, no objection to its admissibility was made in the third trial.
I would refuse leave to appeal on ground 5.
Ground 6: the accused’s habit of nudity
The applicant contends under this ground that the judge failed to direct the jury that no significance should be attached to the accused’s habit of nudity. The complainant had given evidence that her father and the applicant were in the habit of walking around naked. So much had emerged during the course of an interview the complainant had with staff from the Department of Health Services (‘DHS’) in January 1995. The applicant now submits that the failure to give a direction to the jury that they should disregard that evidence may have led prurient members of the jury to misuse it. The applicant submitted that, in the first two trials, the trial judge had directed the jury not to use that evidence as supportive of the charges, and that defence counsel in the third trial had sought to adopt the directions previously given. As I have already said, the trial judge advised that he did not have the previous charges. Section 11 of the JDA required counsel to identify the directions that he wanted the judge to give. This, he did not do.
This Court is reluctant to intervene where defence counsel fail to take exception as to the use of evidence or seek a direction under s 11 of the JDA. The applicant’s habitual nudity of itself did not enliven a judicial obligation under s 15 of the JDA. Indeed, in the first trial, the trial judge stated that any direction was probably being ‘overcautious’ and that ‘sometimes … we go overboard with these anti-propensity directions’.
This would be enough reason in this case to refuse leave on this ground. But the argument must fail for another reason. Defence counsel placed particular reliance on the practice of nudity as part of its case. The defence sought to argue that, if the complainant had been comfortable disclosing her father’s nudity to DHS, she would have likely also reported any sexual misconduct that had occurred.
Counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial. The significance of the absence of a request for a direction was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage.[24] There was an apparent forensic reason why no anti-propensity direction was sought at trial. It may have been thought that to instruct the jury that it should not reason that a person who practises nudity is the kind of person who is more likely to commit the offences alleged could undermine the basis upon which the defence sought to have the jury employ this evidence.
[24]TKWJ v The Queen (2002) 212 CLR 124; Knowles (a pseudonym) v The Queen [2015] VSCA 141, [131].
Ground 7: direction as to credibility generally
Under cover of ground 7, the applicant contends that the trial judge failed to direct the jury that an adverse finding as to the complainant’s credit on any one event or matter was capable of affecting its assessment of her credit generally.
The credibility of the complainant was clearly in issue. Defence counsel had impugned MO’s credibility on a number of bases. As canvassed above, during cross-examination of the complainant, defence counsel sought to impugn the complainant’s credibility in relation to the absence of any verifiable recent complaint, the inconsistency of her evidence with that of her father, and the failure to call Simone as a witness, the complainant having mentioned Simone for the first time in evidence. In his closing address, those arguments were reiterated. In cases where the credibility of a witness is obviously in issue, it is unnecessary for a jury to be instructed that an adverse finding as to credibility on one matter or event may affect an assessment of the creditworthiness of that witness generally.
In any event, the trial judge’s direction to the jury as to the assessment of witnesses would have sufficed to impress upon the jury the nature of the assessment required. In his charge to the jury, the judge said:
It is up to you to decide how much or how little of the testimony of any witness you believe or rely on. You may believe all, some, or none of the witnesses’ evidence. No one can tell you how to approach any particular witness’s evidence in this regard. … As I mentioned at the start of the trial in assessing witnesses’ evidence, some matters which may concern you include their credibility and reliability. It is for you to judge whether the witnesses told the truth and whether they correctly recall the facts about which they gave evidence. This is something you do all the time in your daily lives. There’s no special skill involved. That’s why we have you here, to use your common sense.
As with respect to other grounds, the failure to seek such a direction by counsel provides further reason why the applicant’s argument cannot be sustained.
Ground 8: unsafe and unsatisfactory conviction
I have had the benefit of reading the reasons in draft of Beale AJA with
respect to this ground. I agree that this ground is not made out for the reasons he has given.
Application for leave to appeal against sentence
I also agree with Beale AJA that leave to appeal against sentence should be refused for the reasons he has given.
KAYE JA:
I have had the advantage of reading the draft judgment of Redlich JA. For the reasons he has given, I agree that grounds 1 to 7 (inclusive) of the application for leave to appeal against conviction should be refused.
I have also had the advantage of reading the draft judgment of Beale AJA. For the reasons stated by his Honour, I agree that ground 8 of the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should fail. However, for the reasons given by Redlich JA, and for the reasons which follow, I would refuse leave to appeal amended ground 3 of the application for leave to appeal against conviction .
In particular, and notwithstanding the important differences between the evidence of the complainant and the evidence of her brother DO concerning the incident that was the subject of charge 5, I consider that a jury, properly instructed, was entitled to conclude that the evidence of DO did relate to, and provide material support for, the evidence of the complainant that, at the applicant’s behest, DO, on the occasion in question, lay on top of the complainant and attempted sexual penetration of her. Accordingly, I do not agree that the judge ought to have directed the jury that the evidence of DO could not be supportive of the complainant’s evidence.
As outlined by Beale AJA, there were important common features between the evidence of the complainant and the evidence of DO. The incident,
described by each of them, occurred after they had had a bath. They each recalled that the incident occurred at about the same time, namely, when DO was approximately nine years of age and the complainant, who was 16 months younger, was seven or eight years of age. Each of them were naked in the lounge room. On the evidence of each of them, the complainant was on the floor of the lounge room (the complainant said that she was lying down, and DO said that she was seated). On the version of each witness, the applicant was engaged in a highly unusual act, namely, endeavouring to encourage or solicit two naked young children to participate in a sexual encounter between themselves.
Each of those common factors are by no means inconsequential. There were also some other common features, albeit of less moment. According to each witness, the incident described by them occurred in the late afternoon. The complainant stated that the incident occurred when she was lying between the heater and a chair, and DO said that, at the time, she was near the heater. Both witnesses appeared to say that the applicant was on the floor also. The complainant stated that he was kneeling down on the floor. DO said that the applicant was behind the complainant and less than half a metre from her. On DO’s account, he came very close to the complainant, within less than half an arm’s length.
Further, it was open to the jury to conclude that each incident, described by the particular witness, was the only such incident that that witness recalled. In evidence-in-chief, each witness was asked whether he or she could recall ‘an incident’ which took place after the complainant and DO had had a bath together. There was no suggestion in the evidence that there was more than one such incident. In those circumstances, it was open to the jury to conclude that, when the complainant and DO gave evidence in response to that particular question, they were each recounting the only incident, that occurred after they had had a bath together, that that witness had recalled.
The judge gave a clear and appropriate instruction to the jury that, in order to be satisfied beyond reasonable doubt of the guilt of the accused on count 5, it must be satisfied, beyond reasonable doubt, of the evidence given in relation to that incident by the complainant. The jury was specifically instructed that it was not entitled to substitute the evidence of DO for that of the complainant. His Honour told the jury that the evidence of DO could only be relied on as evidence that supported the evidence of the complainant.
Thus, to be satisfied beyond reasonable doubt of the guilt of the accused on charge 5, the jury was required to be satisfied beyond reasonable doubt that, at the encouragement or behest of the applicant, DO lay on the complainant and attempted sexual penetration of her. Certainly, in that critical regard, DO’s evidence does not support the evidence of the complainant. Indeed, as contended by trial counsel in final address, it was, in a sense, contradictory of that aspect of the account given by the complainant.
Nevertheless, in my view, the jury was entitled to consider that the common features between the accounts of the two witnesses were such that DO’s evidence corroborated the evidence of the complainant, to the extent that she described an incident that occurred after they had had a bath together, and they were both naked in the lounge room, and in which the applicant was endeavouring to induce them to have a form of sexual contact with each other. Further, the jury was entitled to conclude that, insofar as DO gave evidence that was different to that of the complainant, as to the act of indecency that the applicant directed them to undertake, that aspect of DO’s evidence, in that respect, was sufficiently reliable to raise a reasonable doubt concerning that critical part of the complainant’s evidence.
The jury was given the usual direction that it was entitled to accept or reject a witness’ evidence, either in whole or in part. Insofar as DO’s evidence did not support the complainant’s allegation, that he lay on her and attempted sexual penetration of her, the jury was not obliged to accept that aspect of DO’s evidence, or to consider that it was such as to raise a reasonable doubt about that critical part of the complainant’s evidence.
It must be remembered that the two witnesses were particularly young and immature at the time of the incident that they described in their evidence. Neither of them had reached puberty. The incident, described by each of them, would have been traumatic and very difficult for them. In assessing the evidence of each of those two witnesses, the jury would have been well aware that they were each giving an account of an incident that occurred, in those circumstances, more than 20 years after it took place. The jury had the considerable advantage, not enjoyed by a court of appeal, of observing the complainant in evidence-in-chief and cross-examination, and of comparing it with the recorded evidence of DO. That advantage should not be underestimated. A bare reading of the transcript, even after a viewing of the evidence of DO, is very different to the type of advantage enjoyed by the jury in assessing and comparing the evidence of each of the two witnesses.
In that regard, no doubt the jury was mindful of the matters stated by DO in cross-examination concerning the quality of his memory concerning the incident that he was describing. Particularly, the following passage of his cross-examination is relevant:
And is it the case that you would admit that you’ve got a pretty bad memory?---Well, something that long ago, yeah. It’s – it’s – and I really didn’t want to remember it so - - -
Yes. Would you agree also that drugs and alcohol have had an impact upon your memory?---Yeah, there was a time where I took the drugs. Yes.
In re-examination, he gave the following answers:
I just want to clarify with you on that last point. Mr Hannebery (trial counsel in the first two trials) is suggesting to you this whole incident after the bath did not happen at all. That’s what he’s suggesting. What do you say to that?
---Well, it’s to the best of my knowledge this is what happened, so it’s not for me to suggest it did or didn’t. I’m just trying to remember like I was asked to at the start.
Right. Well do you say – you’ve given evidence about an incident that happened after you had a bath. Did that happen?---Yeah.
All right. Now you were asked about – it was put to you that you had never spoken to anyone else about it. Why was it that you never told anyone else about this incident?---It’s not something I really like to be talking about.
And why is that?---I’m better keeping it to myself and I’ve always kept things to myself the - - -
Okay. Why did you want to keep it to yourself?---Embarrassment.
Those passages from the evidence of DO, to which I have just referred, would have provided further support to the jury to consider that, insofar that there were differences between the account of DO and the complainant, those differences might be explained because DO, through understandable embarrassment, or for other reasons, did not remember having or attempting such contact with his younger sister.
Taking those matters into account, and while the matter is not free from difficulty, I consider that the jury, having been properly instructed as to the matter, was entitled to consider that the evidence of DO did provide material support for the evidence of the complainant in respect of charge 5 in the manner that I have indicated. Further, I consider it was open to the jury to be satisfied beyond reasonable doubt of the truth and reliability of the evidence of the complainant in relation to that incident, notwithstanding the important material differences between the complainant’s version of the incident and DO’s version of it.
I am fortified in those conclusions by the fact that, in each of the three trials, counsel for the applicant did not object to the admissibility of the evidence of DO. In each trial, the applicant was represented by experienced and competent members of counsel. Counsel in the second, and importantly third, trial, each knew precisely the evidence that DO would give in the trial, as it had been pre-recorded. Yet, notwithstanding their knowledge of that evidence, they did not consider it appropriate or necessary to object to the admissibility of DO’s evidence on the grounds that it did not, and could not, support the evidence of the complainant in respect of charge 5. Nor, at the conclusion of any of the three trials, did counsel seek the direction, which it is now contended should have been given, that the jury should disregard the evidence of DO in respect of charge 5.
As has been said in this Court on a number of occasions, it must be borne in mind that a criminal trial is, fundamentally, an adversarial process, in which counsel, who have had the advantage of reading the depositions, or the transcript of the previous trial, and of conferring with their client and any other material witness, make important tactical and strategic decisions. It is not for this Court to second- guess counsel, and to raise matters that counsel did not see fit to raise at trial, unless it is clear that there has been some form of oversight or inadvertence, or unless it is well satisfied that a material injustice might otherwise result.[25]
[25]Cf NJ v The Queen (2012) 36 VR 522, [45]–[46] (T Forrest AJA).
In this case, counsel clearly made a strategic decision to not object to the evidence, and to not seek the direction it is now contended the judge should have given. Indeed, in final address, counsel sought to take advantage of the differences between the evidence of the complainant and the evidence of DO, in order to persuade the jury that it should not accept the evidence of charge 5.
For those reasons, in my view, leave to appeal on ground 3 (as amended) should be refused.
BEALE AJA:
I have had the benefit of reading the draft judgements of Redlich and Kaye JJA. I agree with their reasons and conclusions save in relation to proposed ground 3 of the application for leave to appeal against conviction, hereafter simply referred to as ground 3.
Ground 3
Ground 3 was originally expressed in the following terms:
the evidence of the brother [DO] as to an incident involving a sexual assault or attempt thereto upon his sister and upon himself perpetrated by the applicant was inadmissible and should not have been led as it was purely speculative that it [sic] related to the same event as alleged in charge 5.
It impermissibly allowed the Crown to argue that charge 5 was supported by independent evidence.
During oral submissions in this court, the applicant sought leave to amend ground 3 to read:
The learned trial judge erred in failing to direct the jury that [DO]’s evidence could not support the complainant’s evidence as to Charge 5.
No objection was taken to this amendment and leave was granted.
The complainant’s evidence
In examination in chief, the complainant said, relevantly, that she was sexually abused by the applicant ‘between 1992 and roughly 1997’, that is, from when she was ‘around six until about 12’. She was not able to relate the incidents of sexual abuse to particular dates or events or place them in chronological order. She said:
They’re just like just flashes and clips of things. Like there’s a start and a finish to the clip but there’s not anything either side of that that I can remember, and I can’t pin it to a certain day or a certain time of the year, or even a certain year. It just — just have clips of it. They play over and over and over in my head all day every day so those clips are very clear but everything else around them doesn’t seem to make any sense.
The complainant said that she and her brother used to have baths together until she was ‘around eight’. She said there was an occasion after having a bath with DO when they were in the lounge room. She was lying on her back on the lounge room floor. DO was lying on top of her. They were both naked. The applicant was kneeling beside them. It was dark but there was enough light to make out the people in the room. As DO lay on top of her, the applicant was talking to him, ‘trying to coach him to have intercourse with me. [DO] was trying but I kept complaining that it was sore and they just stopped, and that was the end of the memory.’ The complainant said the applicant told DO to ‘be gentle’ when she complained of being sore.
In cross-examination, she agreed that, at the committal hearing, she was asked, ‘In relation to the incident you say occurred after the bath, is it your contention that this incident occurred with your father present in the room at that time?’ and answered ‘Yes. He was passed out on the couch.’ She then adopted that as her evidence at the trial but, as the questioning proceeded, indicated that she wasn’t sure that her father was present. She said the incident occurred sometime prior to her reaching puberty at the age of nine.
DO’s evidence
In examination in chief, DO gave evidence that there was an incident when he was close to nine years old. DO is 16 months older than the complainant, which means, on his account, she was seven at the relevant time. He and the complainant had a bath. The applicant was the only other person at home. It was still ‘fairly daylight outside, so evening, probably closing on night’. The complainant got out of the bath first, grabbed her towel and left the bathroom. DO stayed in a bit longer, then grabbed a towel and headed to his bedroom. The applicant called out to DO from the lounge room in an angry tone of voice saying ‘Get over here’. DO saw that the applicant and complainant were sitting in front of the heater in the lounge room, both naked, the applicant less than half a metre behind the complainant. DO felt scared. He went over and was told by the applicant to get behind the complainant. He stood behind her, with his towel still around him. At that point, the complainant tried to run off but was ‘dragged back by her ankles’ by the applicant. As the applicant was dragging her back, the complainant was saying ‘Get off me. Leave me alone.’ DO and the applicant were then beside each other behind the complainant. The applicant ripped off DO’s towel. The applicant then asked the complainant to grab DO’s penis or the applicant’s penis or both or asked the complainant to grab DO’s penis and DO to grab the applicant’s penis. The complainant said ‘No, don’t’. After which, DO and the complainant ran off to their bedroom. The applicant ran after them, yelling and screaming, saying it was his house and they had to do what he said. Once inside their bedroom, they blocked their door, possibly with a set of drawers, and stayed there. The applicant continued yelling.
DO said that he and the complainant never touched each other during the lounge room incident. He said the closest he got to the complainant was ‘less than half an arm’s length’.
In cross-examination, DO agreed that he told police in his statement of 19 December 2010 that he and the complainant stayed in the bedroom with the drawers against the door until he heard his father’s voice about an hour later. He confirmed he was aged eight, but close to nine, when the incident occurred. He had not spoken to anyone about the incident prior to making his police statement. He didn’t want to remember the incident. He agreed that his past use of alcohol and drugs had resulted in him having a pretty bad memory. He confirmed that his evidence was that in the lounge room the applicant asked the complainant to touch DO’s penis and DO to touch the applicant’s penis. He agreed he had not said anything to the police about the applicant asking him to touch the applicant’s penis. He agreed he had told police that the applicant told the complainant to grab DO’s penis, that she looked at DO, and DO (not the complainant) said ‘No don’t’.
In re-examination, DO said the incident happened as he described. He did not tell anyone about the incident because it embarrassed him.
Submissions
At trial, the prosecutor in his closing address acknowledged there were differences in the accounts of the complainant and DO. He specifically referred to DO’s failure to mention anything about lying on top of the complainant and the applicant coaching him to put his penis in the complainant’s vagina. The prosecutor emphasised, however, that there were a large number of similarities, both said they had been in a bath together, that the incident occurred in the lounge room, that they were naked, that the applicant was trying to involve them in sexual activity and that the complainant was lying[26] on the floor.
[26]In suggesting that DO said the complainant was lying on the floor in the lounge room, the prosecutor must have been relying on DO’s reference to the applicant dragging the complainant back by the ankles. DO never said explicitly that the complainant was lying on the floor. When he first saw her in the lounge-room he said she was sitting on the floor.
In relation to both the complainant’s failure to mention certain things referred to by DO, and to the ‘jump’ in the complainant’s account from being in the bath to being on the floor of the lounge room with DO lying on top of her, the prosecutor said, ‘she didn’t remember how she got into that position and ….she doesn’t necessarily remember beginnings and end of the incidents, she has ..flashes of memory. In my submission they’re remembering different aspects of the same incident...’.
In relation to DO’s failure to mention lying naked on top of his sister in the lounge room, attempting to have sexual intercourse with her, the prosecutor said to the jury:
…he told you he never spoke to anyone about this [incident] after. You might think that this was humiliating for him, ..the word he used was ‘embarrassed’, and you might think that a memory for him of lying on top of his sister would be an excruciating one but this doesn’t seem to be the situation that it is something that he’s focused on much at all over the years or talked to or not. He somewhat reluctantly you might think came here and told you as best he could his memories of that particular incident.
The prosecutor concluded his explanation for the dissimilarities by saying, ‘what you have got is two people giving evidence of their memories of a situation that took place when they were children and a very, very difficult thing for him to talk about and go back and remember’.
In this court, the respondent argued in its written submissions that ‘having regard to the fact that both [DO] and the complainant were young children at the time of the alleged incident, it was open for the jury to conclude that [what] they were describing was the same incident.’ The respondent adopted the arguments made by the prosecutor in his closing address to the jury and noted that the defence did not object to the admissibility of the evidence or take exception to the directions given by the judge to the jury about DO’s evidence.
At trial, defence counsel’s primary position was that the applicant did not sexually abuse the complainant in any way. In his closing address in relation to charge 5, defence counsel said DO’s account bore little if any resemblance to the complainant’s account. He said it did not support the complainant’s evidence of the alleged indecent act. It made no reference to DO lying on top of the complainant, attempting to penetrate her vagina with his penis. In fact, DO’s account contradicted the complainant’s because he said he never physically touched her throughout the whole incident.[27]
[27]Defence counsel, in closing address, suggested to the jury that there was a further contradiction, namely – as to whether the father was present in the lounge room during the incident, but the final state of the complainant’s evidence, as mentioned above in the summary of her evidence, was that she was uncertain whether her father was present.
In this court, the applicant again highlighted the dissimilarities between the two accounts and the fact that they contradicted each other.[28] But, unlike trial counsel, the applicant submitted it was not open to the jury to find that DO and the complainant were referring to the same incident.
[28]Note that the applicant also contended in his revised written case that, contrary to DO’s evidence, the complainant’s evidence was that her father was present in the lounge room passed out on the couch during the incident but, as mentioned in the previous footnote, the complainant’s ultimate position was that she was unsure if her father as present.
Analysis
Although ground 3, as amended, complains of a failure to give a direction rather than the inadmissibility of DO’s evidence, an appropriate starting point for this analysis is the admissibility of that evidence.
Given the manner in which the prosecution sought to rely on DO’s evidence, the test of admissibility was simply whether a reasonable jury could (not would) have found that DO was referring to the same incident as the complainant. The test of admissibility was not whether it was a reasonably possibility that DO and the complainant were referring to the same incident.
There are at least three significant problems with the admissibility of DO’s evidence. First, DO failed to mention anything about lying on top of the complainant, having, or attempting to have, intercourse with her. Second, his account of what took place in the lounge room is fundamentally inconsistent with the complainant’s account. He said he never even touched the complainant: when the applicant tried to initiate inappropriate touching, DO and the complainant promptly ran off to their bedroom and barricaded themselves in. Third, DO’s narrative is a complete one. It has a beginning, a middle and an end. Unlike the complainant, he did not suggest he was recalling a fragment of the incident. His account does not have any gaps into which one can reasonably slot the indecent act described by the complainant. In order to fit it in to the incident described by DO, one has to create a gap. In other words, one has to excise, or reject, DO’s evidence that he was standing the whole time that he and the complainant were in the lounge room. One also has to excise, or reject, DO’s evidence that there was no physical contact between himself and the complainant in the lounge room.
Given these problems, it strikes me as very strained to claim that the complainant and DO were remembering the same incident, just different parts of it. Assuming them to be credible and reliable witnesses, it seems much more plausible that they were referring to different incidents. Such an explanation fits with the complainant’s evidence that the applicant sexually abused her over an extended period of time, from when she was six until she was about 12. Furthermore, the complainant said that she and her brother often stayed together on weekends and holidays at the home their father shared with the applicant and that she and DO bathed together up until she was around eight. It is likely that there were multiple occasions when the complainant and DO bathed together when the applicant was around.
DO and the complainant were not asked if there could have been more than one incident where the applicant tried to involve them in sexual activity after the two of them had bathed together. Even if they had been asked that question, and each had said there was only one incident, that would not be determinative, given the fundamental dissimilarities in their accounts.
It is not safe to assume that that they would have remembered if there was more than one incident after a bath. Even on the prosecution’s case, they had significant gaps in their memory. Both failed to remember dramatic events described by the other. The complainant failed to remember being dragged back by the ankles when she initially tried to run off from the applicant. She also failed to remember DO and her running off and barricading themselves in the bedroom with the applicant chasing after them and yelling at them. DO failed to remember lying on top of his sister trying to have sexual intercourse with her. These are not peripheral matters. If they were capable of failing to remember such things, which is how the prosecution tried to reconcile their accounts, it is no less likely that they may have failed to remember more than one incident after a bath.
Of course, the mere fact that witnesses give inconsistent accounts does not preclude a finding that they are referring to the same incident. But where, as here, it is not possible to pin down the date of the alleged events with even a moderate degree of precision, the witnesses are recalling events that allegedly took place many years ago when they were very young, each witness concedes that they have memory problems, and the accounts they give are inconsistent in major respects, it is difficult to see how a reasonable jury could conclude with any confidence that they were referring to the same incident.
As noted already, there was no objection to the admissibility of DO’s evidence. Nor did defence counsel request that the judge direct the jury to disregard DO’s evidence. But once the judge heard all the evidence, he should have concluded, for the reasons set out above, that it was not open to the jury to find that DO was referring to the same incident as the complainant.
Under s 15 of the Jury Directions Act2013, the trial judge was obliged to give the jury any direction that was necessary to avoid a substantial miscarriage of justice. The risk of the jury attaching significant weight to what was inadmissible evidence was a very real one. Accordingly, the trial judge should, at the very least, have instructed the jury to disregard DO’s evidence.
Conclusion
Given that the judge directed the jury that they could use DO’s evidence as supportive evidence if they concluded he was referring to the same incident, there was a real risk that the jury would do so and attach considerable significance to it in relation to its decision on charge 5. In my view, the non-direction resulted in a substantial miscarriage of justice.[29] I would grant leave to appeal on charge 5, allow the appeal, and set aside the conviction, and order a new trial on that charge.
[29]Criminal Procedure Act2009 s 276(1)(b).
Ground 8
Proposed ground 8, hereafter referred to simply as ground 8, contends that the convictions are unsafe and unsatisfactory.
The applicable test
For the applicant to succeed on this ground, he must show that it was not open to a reasonable jury to be satisfied beyond reasonable doubt of his guilt.[30] In applying that test, this court must bear in mind that the jury is the primary trier of fact and has the advantage of seeing and hearing the witnesses give their evidence.[31]
[30]M v The Queen (1994) 181 CLR 487, 495 (Mason CJ, Deane, Dawson and Toohey JJ).
[31]Ibid 493–4.
The general rule is that if an appellate court, after considering the whole of the evidence, entertains a reasonable doubt about the guilt of an applicant, a reasonable jury should have entertained such a doubt.[32] The general rule does not apply, however, if the appellate court’s doubt could have been eliminated by seeing and hearing the witnesses give evidence. In other words, ‘it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred’.[33]
[32]Ibid 494.
[33]Ibid (emphasis added).
Submissions
The applicant relied on the matters raised under the cover of proposed grounds 1 to 7 in support of this ground. In addition, he made the following submissions. The complainant’s evidence was unsupported save for, arguably, charge 5. The complainant’s memories were non-specific as to dates and surrounding circumstances and, on her own admission, consisted only of ‘flashes’ or ‘slots’ of memory. These flashes related to events alleged to have occurred a long time ago, between 1992 and 1997, when the complainant was under 12. In relation to charges 4 and 5, she said she was under nine. When she was nine, both the complainant and her brother told DHS they had not been sexually abused. When she was 12, and her mother inquired whether she had been sexually abused, the complainant indicated she had not been abused. She did not complain to the police until 2010. The applicant made complete denials in a record of interview.
The respondent submitted that the jury’s advantage in seeing and hearing the complainant give evidence over two days must be given ‘full regard’. The fact that she only had flashes of memory and could not give a chronology of events or be more specific was consistent with her age at the time of the offending. It was open to the jury to accept her reasons for not complaining to DHS when she was nine and to her mother when she was 12. As for her father denying that she complained to him when she was 16, there was evidence that he used to drink heavily, it was open to the jury to conclude that alcohol abuse clouded his memory. On charge 5, it was open to the jury to find that DO was referring to the same incident: his evidence consequently supported the complainant’s evidence on that charge. The jury considered the applicant’s denials in his record of interview with the benefit of a Liberato direction. The fact that they acquitted the applicant on charges 2 (sexual penetration of a child under 16) and 6 (indecent act with or in the presence of child under 16) indicated that they gave careful and separate consideration to the charges.
Analysis
The complainant gave sworn evidence of being sexually abused by the applicant on a number of different occasions, and in a number of different ways. None of the incidents she described strike one as inherently implausible.
At trial, defence counsel tried to portray the video incident (charge 4) as inherently implausible by reason of the fact that the complainant said her father was present in the lounge room at the time, albeit passed out on the couch. The suggestion that the applicant ran the risk of the complainant’s father waking up and seeing the abuse occurring is a matter that might give a jury pause but it is not a detail that renders the complainant’s account inherently implausible. The complainant said it was dark or getting dark outside when this incident occurred. There was evidence, not only from the complainant, that the father would drink to excess and go to bed early. The risk which the complainant suggested the applicant took regarding her father during the video incident may not have been much of a risk, considered objectively and from the applicant’s point of view at the time.
Although the detail provided by the complainant in relation to each incident was limited, there was enough detail to make it unlikely that she had imagined these incidents. For example, in relation to charge 5 she said that the applicant told DO to ‘be gentle’ when, under the applicant’s coaching, DO was trying to penetrate her and she was complaining of her vagina feeling sore.
The complainant’s lack of detail as to when each offence occurred, the sequence in which they occurred and the surrounding circumstances was explicable. She was quite young at the time of the alleged abuse. The offences were all alleged to have occurred between 1 January 1992 and 21 September 1997, that is, when the complainant was aged between six and 12. She did not make her police statement until 19 October 2010 when she was 25. The trial took place in November 2014 when she was 29. Given her age at the time of the alleged abused and the delay of at least 13 years from the cessation of the alleged abuse to the making of her police statement, her inability to provide greater detail does not necessarily undermine her credit.
On the subject of her credit, she said in relation to charge 5 that her brother DO was involved. If her allegations of sexual abuse were fabricated, it is unlikely that she would have involved DO at all, unless they jointly concocted their allegations, but it was clear from the differences between her account and DO’s account that they had not put their heads together.
I turn now to the complainant’s previous denial of abuse as well as her delay in complaining of abuse. When the complainant was nine, that is, after the video incident (charge 4) and the bath incident (charge 5), both she and DO were interviewed by DHS as to whether they had been sexually abused. The DHS investigation was prompted by a complaint from an anonymous source about the father (and possibly the applicant) practising nudity in the children’s presence. Good and bad touching was explained by the DHS worker. Neither child complained of any sexual abuse by anyone. Indeed, they indicated they had not been abused. The only thing the complainant said she did not like was the fact her father and the applicant were often nude at home. At the trial, recalling the interview with the DHS worker and explaining why she did not complain of being sexually abused, the complainant said ‘I just remember thinking to myself that I want to tell her but I can’t, and then the interview was over, and she asked me to come out and see mum’. Given her age at the time, this explanation is plausible.
When the complainant was 12, her mother asked her whether she had been sexually abused. This was prompted by the discovery that the complainant’s sister had been sexually abused by a neighbour. Again, the complainant indicated she had not been abused. At trial, she said she did not complain to her mother at that time because she thought her mother might not believe her and she did not want to upset her mother. Again, given her age, this explanation is plausible.
The complainant did not complain to anyone at a time proximate to the alleged offending period, even though she appears to have had close relationships with both her mother and father. But, of course, a failure to complain promptly of child sexual abuse is not necessarily inconsistent with the abuse having occurred.
The complainant said that when she was 16 she told her father that the applicant had sexually abused her. Her father testified that he was not made aware of any of her allegations of sexual abuse against the applicant until after the complainant made her police statement. The evidence from her father had the potential to undermine her credit. But it is unlikely that the complainant would make up the story about complaining to her father when she was 16. And whilst one would normally expect a father to remember such a complaint if it had been made, the evidence as to the father’s history of alcohol abuse provides a plausible explanation for him not recalling it.
Under cross-examination, the applicant claimed for the first time that, by the time she was 16, she had complained about the sexual abuse, not only to her father and a boyfriend (or boyfriends) but also to a girlfriend, Simone. According to the police informant, the complainant had not mentioned Simone to her, even though the informant enquired, as one would expect, about persons to whom the complainant had complained. Nor did the complainant mention Simone at the committal or in the applicant’s two earlier trials. This ‘omission’ was not satisfactorily explained by the complainant. It is likely to have impacted adversely on the jury’s assessment of her credit but, in my view, it was not of such moment that it precluded the jury from accepting her as a credible and reliable witness in relation to the specific allegations of sexual abuse.
The applicant did not give or call evidence. Instead, he relied on his denials in a video recorded police interview. Having watched the video, it is true that there was nothing about the content of his answers or his demeanour which undermined the credibility of his denials but it was open to the jury, nonetheless, to accept the complainant’s evidence after seeing her tested under oath.
The applicant had no prior or subsequent convictions. That, of course, supports the credibility of his denials and the improbability of him committing the alleged offences, but these were matters which were brought to the jury’s attention by the trial judge.
Conclusion
The advantage the jury enjoyed in seeing and hearing the complainant give evidence is capable of eliminating any doubt that this court might otherwise have entertained about the applicant’s guilt. Although the prosecution case, save for charge 5, depended entirely on the complainant, it was open to the jury to find that she was credible and reliable and to base their findings of guilt on her evidence alone. Although her evidence was somewhat lacking in detail, there was a satisfactory explanation for that — she was quite young at the time, and many years have passed since the offending. She provided plausible reasons for the fact that she denied being abused when she was nine and 12. It was unlikely that she would falsely assert that she had complained to her father when she was 16. The fact that he used to be a heavy drinker could explain his loss of memory of the complaint. It was not unreasonable for the jury to accept her evidence and reject her father’s in that regard. Her claim of having complained to her girlfriend Simone by the time she was 16 may have been a ‘recent invention’ which impacted adversely on her credit but it did not preclude the jury from assessing her as credible and reliable having regard to her evidence as a whole. Giving due weight to the applicant’s denials in his record of interview and his otherwise good character, it was still open to the jury to accept the complainant’s allegations. Accordingly, I would refuse leave to appeal on ground 8.
Application for leave to appeal against sentence
The applicant contends that the individual and total effective sentences are manifestly excessive, as is the minimum term to be served before the applicant is eligible for parole.
The maximum penalty for each offence was 10 years’ imprisonment. According to the Record of Orders signed by the sentencing judge,[34] the applicant was sentenced to four years’ imprisonment on each of the sexual penetration charges (charges 1 and 3) and two years on each of the indecent act charges (charges 4 and 5). Orders for cumulation resulted in a total effective sentence of six years with a non-parole period of four years.
[34]In respect of the sentence imposed on charge 4 (indecent act with a child under the age of 16) there is a discrepancy between the sentence recorded in the primary judge’s revised sentencing reasons (four years’ imprisonment) and the sentence recorded in the Record of Orders signed by His Honour (two years’ imprisonment). The total effective sentence is not affected because both the sentencing reasons and the Record of Orders state that in respect of charge 4, nine months was to be served cumulatively on the base offence and all other sentences.
In relation to the sexual penetrations, the complainant was no more than 12 years of age at the time. In relation to the indecent acts, the complainant’s evidence was that she was less than nine.
The applicant on the other hand, who was born in 1961, was aged between 30 and 36 during the alleged offending period (1 January 1992 to 21 September 1997). In other words, he was a mature male, which bears upon his moral culpability.
All of the offending took place at what was effectively the complainant’s second home. It may have belonged to the applicant but the complainant’s father lived there for an extended period and his children came there regularly for access, on weekends and holidays. A child should be able to feel safe, especially at home, whether that be their primary or secondary home. The location of the abuse was an aggravating factor, as was the fact that the offending involved a double breach of trust — against the complainant and against her father, who was the applicant’s friend and housemate.
The offending was not limited to one episode. Whilst it is unclear how long separated each incident, there were multiple incidents.
Charge 5 was a particularly serious instance of an indecent act by reason of the fact that the applicant involved the complainant’s brother in the offending, coaching him to sexually penetrate his own sister. That the applicant sought not only to violate the complainant but also to violate the proper relationship between a sister and her brother is an aggravating factor. The sentence of two years’ imprisonment (with only three months cumulative) was lenient.
The applicant ran his trial. He was not to be punished for doing so but neither was he entitled to any discount for a guilty plea. It was properly conceded at the plea hearing that punishment and general deterrence were important sentencing considerations.
Notwithstanding the fact that the applicant has no prior or subsequent convictions, there is no merit in the submission that the individual sentences imposed, the total effective sentence and the non-parole period were manifestly excessive. The offences were serious examples of this kind of offending and the sentences and non-parole period imposed by the trial judge were wholly within the range of sentences open to him. I would refuse leave to appeal against sentence.
- - -
14
0