Frendo v The King
[2024] VSCA 319
•18 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0136 |
| ANTHONY FRENDO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 September 2024 |
| DATE OF JUDGMENT: | 18 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 319 |
| JUDGMENT APPEALED FROM: | DPP v Frendo (Unreported, County Court of Victoria, Judge Smallwood, 6 April 2022) |
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CRIMINAL LAW – Conviction – Application for extension of time – Practice and procedure – Jury empanelment – Whether applicant given reasonable or adequate opportunity to exercise rights of challenge – Video of empanelment – No irregularity in procedure adopted – Extension of time refused.
CRIMINAL LAW – Conviction – Application for extension of time – Practice and procedure – Jury separation oath or affirmation – Whether separation oath or affirmation required after first jury separation – No irregularity – Extension of time refused.
CRIMINAL LAW – Conviction – Application for extension of time – Sexual penetration of child under 16 – Indecent act with child under 16 – Whether miscarriage of justice due to failure of Crown to call applicant’s wife as witness – Whether prosecution coerced witness to change evidence – Whether police investigation sufficient – Whether verdicts of guilty unsafe and unsatisfactory – Whether complainant attested to truth of video-recorded statement – No error – Extension of time refused.
CRIMINAL LAW – Sentence – Application for extension of time – Whether sentences manifestly excessive – Extension of time granted – Appeal allowed – Appellant re-sentenced.
Juries Act 2000, ss 38, 39, 39(2A), 39(2B), 50; Criminal Procedure Act 2009, ss 367, 368(1)(c).
R v Apostilides (1984) 154 CLR 563, Whitehorn v The Queen (1983) 152 CLR 657, Pell v The Queen (2020) 268 CLR 123, applied; Gardner (a pseudonym) v The King [2024] VSCA 83, Parker (a pseudonym) v The King [2024] VSCA 209, R v Patton [1998] 1 VR 7, Youssef (a pseudonym) v The Queen [2019] VSCA 240, discussed.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr J O’Connor | ||
Solicitors | |||
| Applicant: | In person | ||
| Respondent: | Ms A Hogan, solicitor for Public Prosecutions | ||
PRIEST JA:
Having had the advantage of reading in draft the reasons for judgment of Boyce JA, I agree with them and with the orders proposed.
TAYLOR JA:
I agree with Boyce JA.
BOYCE JA:
PART A:BACKGROUND
On 23 March 2022, the applicant was convicted by jury verdict on indictment K11397498.2 (‘trial indictment’) of four charges of sexual penetration of a child under 16 and three charges of indecent act with a child under 16. The trial indictment related to one complainant. The applicant pleaded guilty in respect of a second indictment, indictment K11397498.4 (‘plea indictment’), to three charges of sexual assault of a child under 16. The offending on the plea indictment related to two different child complainants.
On 6 April 2022, the applicant was sentenced on both indictments as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
Indictment K11397498.2 2 Sexual penetration of a child under 16[1] 10 years 5 years 6 months 3 Sexual penetration of a child under 16[2] 10 years 6 years 2 years 5 Indecent act with a child under 16[3] 10 years 2 years N/A 6 Sexual penetration of a child under 16[4] 10 years 6 years Base 7 Indecent act with a child under 16[5] 10 years 2 years 1 year [1]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[2]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[3]Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 1991.
[4]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[5]Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 1991.
8 Sexual penetration of a child under 16[6] 10 years 6 years 2 years 10 Indecent act with a child under 16[7] 10 years 2 years 1 year Total Effective Sentence:
12 years and 6 months’ imprisonment
Indictment K11397498.4
1 Sexual assault of a child under 16[8] 10 years 18 months 12 months 2 Sexual assault of a child under 16[9] 10 years 2 years Base 3 Sexual assault of a child under 16[10] 10 years 18 months 6 months Total Effective Sentence: 3 years and 6 months’ imprisonment, 18 months of which to be served cumulatively on the sentence imposed on Indictment K11397498.2 Global Total Effective Sentence: 14 years’ imprisonment Non-Parole Period: 10 years Pre-sentence Detention Declared: 14 days Section 6AAA Statement: No statement made Other Relevant Orders:
1. Sex offenders Registration (life)
[6]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[7]Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences)Act 2006.
[8]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[9]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[10]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The applicant seeks an extension of time within which to file notices of application for leave to appeal against conviction and sentence. A number of preliminary issues arise. An issue arises as to whether these applications are competent, they having been commenced by the applicant’s wife by means of the grant of an enduring power of attorney. Another issue concerns the fact that, at the hearing of the applications, oral submissions were made on the applicant’s behalf by his brother-in-law who acted as the applicant’s ‘McKenzie friend’.[11] Then there is the application for an extension of time.
[11]McKenzie v McKenzie [1971] P 33.
As will become evident, for the reasons that follow, I am of the view that the applicant’s application for an extension of time to file an application for leave to appeal against conviction must be refused. On the other hand, I would grant the applicant’s application to extend time to file an application for leave to appeal against sentence. I would grant leave to appeal against sentence, allow the appeal and re-sentence the applicant.
Enduring power of attorney
The applicant’s materials were filed with the Registry of the Court of Appeal by the applicant’s wife pursuant to an enduring power of attorney executed by the applicant on 6 July 2023 (‘Power of Attorney’). The Power of Attorney purports to be made under Part 3 of the Powers of Attorney Act 2014 (‘POA Act’) such that it took effect immediately upon its making. Pursuant to the Power of Attorney, the applicant appointed his wife as his attorney and authorised her to do ‘anything on [the applicant’s] behalf that [the applicant] can lawfully do by an attorney for all personal, medical and financial matters’.
Section 3(1) of the POA Act defines ‘personal matter’ as ‘any matter relating to the principal’s personal or lifestyle affairs’ and as including ‘any legal matter that relates to the principal’s personal or lifestyle affairs’. ‘Legal matter’ is defined in the same section as the ‘use of legal services for the principal’s benefit’ or ‘bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim’. There is no suggestion that the reference to ‘a legal proceeding’ is intended to be confined to a civil proceeding.
The Power of Attorney appears to be in the prescribed form[12] and appears to comply with the requirements of the POA Act. The applicant’s wife appears to be eligible for appointment as an attorney[13] and the Power of Attorney has been witnessed by two independent witnesses and signed, as required,[14] by each witness certifying, inter alia, that, at the time of execution, the applicant ‘appeared to [them] to have decision making capacity in relation to the making of [the] enduring power of attorney’. The applicant’s wife signed a ‘Statement of Acceptance of Appointment’ as attorney, which made the disclosures and gave undertakings required by the POA Act.
[12]See Powers of Attorney Regulations 2015, sch1, form 1.
[13]See Powers of Attorney Act 2014, s 28 (‘POA Act’).
[14]See ibid ss 32, 36.
The applications for leave to appeal thus appear to be competent.[15] In any event, at the hearing of the applications the applicant appeared by video-link and it was apparent that he not only wished to appeal, but that he also wanted his wife and brother-in-law to represent him. The respondent did not take issue on the question of competency. In these circumstances I am prepared to treat the applications as competent.
[15]See Carson (a pseudonym) v The Queen [2020] VSCA 202.
Representation
In accordance with the applicant’s wishes, the applicant’s wife and brother-in-law each applied to appear on the applicant’s behalf as ‘McKenzie friends’. The principles concerning the ability of a ‘McKenzie friend’ to assist a litigant in person by prompting, taking notes and giving advice, and, in addition, by making submissions on behalf of such a litigant, were summarised recently by Walker JA in Myers v Victorian Civil and Administrative Tribunal.[16]
[16][2024] VSCA 206, [6]–[9].
It has been said that a person not legally qualified will only be given leave to address the Court on an unrepresented litigant’s behalf in a ‘rare and exceptional’ case.[17] The respondent did not oppose a grant of leave permitting the applicant to have a McKenzie friend speak on his behalf. At the hearing, the Court granted the applicant’s brother-in-law leave to address the Court.
[17]Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89, 93 [17] (Edelman J).
Extension of time
The applicant’s applications are nearly 15 months out of time. The applicant’s reason for needing an extension of time is said to relate to difficulty he experienced in preparing appeal documents. The application to extend time states that the applicant was unable to obtain legal assistance to file the necessary documents due to costs constraints and issues concerning his health and cognition. The applicant also alludes to a misunderstanding that apparently arose with a certain ‘individual’ who was supposed to handle the appeal process but did not do so. There is little in the way of material filed which is supportive of the application to extend time. The respondent opposes the application to extend time for reasons which include that the proposed grounds of appeal lack merit.
When considering an application to extend time, the Court must weigh into the balance matters such as the length of the delay, the reasons for the delay and the merits of the proposed grounds of appeal.[18] It is likely to be inutile to grant an extension of time if there is no merit. It is convenient, therefore, to turn to the merits.
PART B:THE CONVICTION APPLICATION
[18]See Madaferri v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The prosecution case
The complainant was born in 1996 and was the daughter of ‘AB’ — the complainant’s mother.[19] In 1999 AB began an intimate relationship with the applicant’s eldest son ‘CD’. When this relationship began, the complainant was aged three. The applicant lived in a town in rural Victoria. He would look after the complainant and the complainant’s brother when AB, CD and the applicant’s wife socialised together away from the applicant’s house.
[19]AB also had a son who lived with her and who was approximately a year older than the complainant. This son will be referred to in these reasons as ‘the complainant’s brother’. AB had another son older than both the complainant and the complainant’s brother. This older brother resided in special care in Melbourne. The eldest brother plays no role in the events which form the subject matter of this case.
The complainant alleged that the applicant had sexually offended against her in the manner specified on the trial indictment. The complainant said that this offending commenced when she was aged about seven. The offending continued until the complainant was aged approximately thirteen. The offending ceased at around the time the relationship between AB and CD ended. The complainant described four separate occasions when she said that the applicant had offended against her.
All of the offending was said to have occurred at addresses in the rural town where the applicant lived. Two of those addresses (what, in these reasons, will be named ‘the first address’ and ‘the second address’) were residences where the applicant lived with his wife. The applicant and his wife had built their house at the second address.
The complainant’s evidence
The first occasion described by the complainant occurred between 2004 and 2005 at the first address. The complainant was a student at a local primary school. The complainant was with the applicant and other family members. They were watching a movie on television. The applicant told the complainant ‘I want you to do something for me’. The applicant then instructed the complainant to ‘sit on his lap and touch him and rub him’. The complainant was in her pyjamas. Once on the applicant’s lap, the applicant placed a blanket over her. The applicant removed his penis from his clothing and told the complainant to touch and rub it. The complainant rubbed the applicant’s penis up and down (charge 1 — trial indictment — indecent act with a child under 16). The complainant then pulled her hand back. This activity was concealed by the blanket.
The complainant recalled that this was the first time that she had ever touched the applicant’s penis. The complainant recalled that the applicant’s penis was hard and wrinkled. The applicant’s offending went unnoticed by other family members who were present.
The jury acquitted the applicant of this charge.
The second occasion occurred in January 2005, after the applicant had moved to the second address. One night, between 2005 and 2006, the applicant and the complainant stayed at home while the applicant’s wife and AB went to the local bowls club to play bingo. Shortly after the others had gone, the applicant said to the complainant ‘Oh, let’s go to bed early. I’m tired’. The applicant locked the front door of the house. They both went into the applicant’s bedroom and the applicant closed the bedroom door. The complainant got into the applicant’s bed. The applicant suggested that he wanted to ‘play a game, like touching each other’.
The applicant removed the complainant’s pyjamas and rubbed her vagina for a short time before inserting a finger into her vagina and moving his finger around (charge 2 — trial indictment — sexual penetration of a child under 16). The complainant gave evidence, led as context evidence, that the applicant tried to insert more fingers into the her vagina but was unsuccessful in doing so. The applicant told the complainant not to cry, but the complainant said that this hurt.
The applicant then went down on his hands and knees and said something like ‘relax, this won’t hurt you, it’ll feel nice’. The applicant placed his mouth and tongue on the complainant’s genital area. He licked around, and in, the complainant’s vagina (charge 3 — trial indictment — sexual penetration of a child under 16). The applicant then made the complainant touch his penis (charge 5 — trial indictment — indecent act with a child under 16). The accused moved the complainant’s head down to his penis and forced her to perform oral sex on him, telling her to ‘suck’ (charge 6 — trial indictment — sexual penetration of a child under 16).
After a period of time, the complainant told the applicant that she did not want to do it anymore. She said that she wanted to go to sleep. The applicant told the complainant not to tell anyone. After this, the applicant would often ask the complainant if she was ‘horny’.
The third occasion occurred between 2005 and 2007 at the address of another of the applicant’s sons — ‘EF’. ‘GH’ was EF’s female partner. She lived with EF in the same rural town as the applicant. GH had a dog named ‘Savage’. The complainant said that she went with the applicant to EF and GH’s house to feed Savage. The complainant said that when they arrived the applicant took her to a bedroom with a double bed. The applicant pushed the complainant onto the double bed, and instructed her to open her legs. The complainant complied and the applicant lay on top of the complainant and rubbed against her. As the applicant moved his body, the complainant could feel the applicant’s erect penis rubbing hard on the outside of her vagina through her clothing (charge 7 — trial indictment — indecent act with a child under 16).
The fourth occasion occurred at the second address between 2007 and 2009. The complainant recalled that CD was home on this occasion. The complainant was aged between eight and 10 years. The complainant recalled that CD went to bed. The applicant then took the complainant to bed and tried to put his hands down her pants. The complainant was worried that CD might hear and said something like ‘no, you can’t do this now’. The complainant remembered that the applicant then said something like ‘can you touch me then?’. The complainant then took off her pyjamas and the applicant made the complainant get on top of him. The applicant tried to put his penis in the complainant’s vagina. The applicant’s penis did not go in very far but it caused the complainant immediate pain (charge 8 — trial indictment — sexual penetration).
The applicant then said to the complainant words to the effect of ‘OK, then just rub me’. After approximately 15 minutes, the applicant ejaculated and the complainant remembered seeing ‘white stuff’ come out of the applicant’s penis (charge 10 — trial indictment — indecent act with a child under 16). The applicant left the bedroom and went to the bathroom.
The complainant said that the applicant regularly sexually assaulted her by rubbing her vagina; by performing oral sex upon her; and by making her touch the applicant’s penis. The complainant said that the applicant would also sometimes try to insert his penis into the complainant’s vagina. This evidence was led as context evidence. The complainant said that on one occasion, when she was seven or eight, she showed AB her sore and red vagina. This was after the complainant had stayed the night with the applicant. The complainant made no complaint about the applicant having offended against her on this occasion.
Under cross-examination, the complainant recalled telling her mother, in 2012, about the applicant’s offending. She told her mother that it happened on nights when bingo was held. She said that she recalled AB and CD separating at some point, but that they then got back together. She said that she didn’t have a memory of being babysat by the applicant when the applicant was living at the first address. She said that sometimes when her family visited the applicant and his wife, they would visit and then leave. Sometimes the complainant would stay overnight and the applicant would babysit her. She said that she was at the applicant’s ‘a lot’ and that the complainant’s brother was with her most of the time. She said that the applicant, his wife, or both of them together babysat her ‘most weekends’.
The complainant said that on the first occasion, there were four adults in the room — the applicant, his wife, AB and CD. It was possible that the complainant’s brother was there as well. She said that the applicant told her to be quiet.
As to the second occasion, the complainant’s recollection was that the applicant locked the bedroom door by means of a ‘press knob’ on the door. The complainant disagreed with the proposition that there was no lock on the bedroom door.
The complainant agreed that the fourth occasion took place when the complainant was roughly eight or nine years of age. She said that the fourth occasion occurred after the third occasion. The complainant recalled that when the third occasion took place the dog Savage was a big dog with shaggy hair. She said that on the third occasion Savage was a ‘proper dog’. She could not remember exactly when EF and GH had got this dog.
In December 2012, the complainant remembered being at a school break-up party. She was there with her friend ‘IJ’. She said that she complained to IJ about having been the victim of sexual abuse when she was little. She then saw her mother with IJ and complained a further time. She denied that she said ‘[CD’s first name] raped me’, ‘[CD’s first name] touched me’. She said that she complained about the applicant having sexually offended against her.
AB’s evidence
AB said that she gave birth to the complainant in 1996. She gave birth to the complainant’s brother a year earlier. AB commenced her relationship with CD in 1999. After forming a relationship with CD she moved to the same rural town where the applicant and his wife lived. At some point AB, CD, the complainant and the complainant’s brother moved in with the applicant and his wife. AB and CD later moved into their own house in the same rural town.
AB would socialise with the applicant’s wife. They went to bingo together nearly every Saturday night. The bingo was held at the local bowls club. This was when AB’s family lived in the same rural town as the applicant and his wife. The applicant would mind the complainant and the complainant’s brother while AB and the applicant’s wife went to bingo. The applicant babysat the children at the first address and the second address. The majority of the time the complainant and the complainant’s brother would stay the night with the applicant. The applicant and his wife had separate rooms. At the second address, the complainant and the complainant’s brother had separate rooms. The complainant would normally stay with the applicant in his room at the second address. The complainant would sleep in the applicant’s bed. This started when the complainant was aged six or seven.
AB and CD broke up twice. The first time was in 2007 or 2008. This separation lasted about 12 to 18 months. During this separation, AB, the complainant and the complainant’s brother continued to visit the applicant and the applicant’s wife. The second separation between AB and CD occurred in 2010. This was a final separation. After the second break up, AB did not socialise with the applicant and his wife.
At some point, AB, CD, the complainant and the complainant’s brother moved to a neighbouring town some 20 minutes away. After this occurred, visits to the applicant and his wife continued, but they were less frequent.
The applicant’s wife would also go to Melbourne with AB to visit AB’s oldest son who was residing in care. On these occasions, either the applicant or CD would look after the complainant and the complainant’s brother.
In 2012, AB moved interstate with the complainant. At the end of 2012, the complainant went with her friend IJ to a Christmas break-up party. AB later received a phone call from the complainant. The complainant was very upset and asked to be collected. AB arrived at the party and saw the complainant. The complainant was drunk and upset.
The complainant got into the back seat of the car with IJ. The complainant started smashing her head into the car window. AB stopped the car; the complainant got into the front seat. Whilst in the car the complainant said ‘I’ve been raped’. The complainant said ‘[the applicant] used to, he rapes, he raped me’. The complainant tried to get out of the car while it was moving. The complainant said ‘Mum, it was happening all the time’. The complainant said ‘[the applicant] fucked me … [he] fucked me every Saturday night when you went to bingo and it’s all your fault’. When they got home, the complainant was put to bed. AB rang police the following day.
Under cross-examination, AB disagreed with the proposition that after the second separation from CD there was a property settlement which occurred in October 2009. The applicant and his wife were living at the second address when AB and CD first separated. AB said that the applicant didn’t always look after the complainant at the same time as the complainant’s brother. The babysitting normally occurred on a Saturday night. AB agreed that her mother would go to bingo every Saturday night. AB said that she went less frequently to bingo than her mother. AB disagreed that the applicant’s wife did not go to bingo prior to 2008. Sometimes her mother would collect the applicant’s wife and take her to bingo.
She denied that in 2012, in the car, the complainant said that ‘[CD’s first name] raped me’, ‘[CD’s first name] touched me’.
IJ’s evidence
IJ said that she first met the complainant at high school in Year 10. This was not in Victoria. IJ thought that this occurred in 2012.
IJ said that at the end of 2012, she was at a party with the complainant. Later in the evening, at the party, the complainant appeared hysterical and angry. IJ tried to calm the complainant down, but this didn’t seem to work. A taxi was called for the complainant. The complainant was so distressed that the taxi driver refused to take her. The complainant was kicking the taxi and punching its windows. The complainant tried to run away.
IJ asked the complainant what was wrong. The complainant answered ‘I was raped when I was younger’. IJ and the complainant returned to the complainant’s house. IJ was pretty sure that the complainant’s mother did not pick them up. Later, at the complainant’s house, IJ heard the complainant say ‘He raped me’ or ‘He touched me when I was younger’.
IJ said that the complainant’s mother asked who the complainant was talking about. IJ was then asked about a statement that she had made to police. IJ was asked about the fact that, in this statement, she had mentioned CD’s first name as the name of the person that she had nominated. IJ responded to this particular question in the following manner:
I wasn’t quite sure what the name that was mentioned. I — I thought it was [CD’s first name], but I got mixed up. But I did mention that I wasn’t sure.
IJ was asked whether, ‘as she sat there now’ in March 2022, she had a better recollection ‘of whose name was used in that conversation’. IJ responded as follows:
I don’t. I couldn’t say yes, because I don’t remember since it was so long ago. Um, I would be lying if I would say — if I said, ‘Yes, I do remember the name’, because I truly don’t remember what name was said in that conversation.
IJ said that her police statement was made in 2020.
Under cross-examination, IJ agreed that in her police statement she described being at the complainant’s house when AB asked the complainant what was wrong. IJ agreed that she had said in her police statement that ‘[the complainant] then said something like, “[CD’s first name] raped me” or “[CD’s first name] touched me”. I think that is the name she used. I knew [CD’s first name] to be her mum’s partner a while ago. They’d broken up some time before that’. The witness agreed that she had also said in her police statement:
The morning after or a couple of days later I asked [the complainant] a few questions about what she told me. I asked her she didn’t tell her mum and she said it’s because she was too young, didn’t understand what happened. I asked her how it escalated for him to do such a thing, and she said she didn’t know.
…
Over time we had a few other conversations about what happened. I think [the complainant] told me she was about seven years old. I know it wasn’t a one-time thing. I think she told me it stopped when her mum broke up with him.
IJ said that when she spoke with the police she ‘wasn’t sure what the name was’. When it was put to IJ that in fact the complainant in 2012 had said to her ‘[CD’s first name] raped me’ or ‘[CD’s first name] touched me’, IJ replied:
But I did mention that I wasn’t sure what name she used, because that’s why I said, ‘I think that’s the name she used’ because I wasn’t 100 percent certain. I’ve never met these two men. I — I don’t know who they are, I — so I don’t remember what name she used.
GH’s evidence
GH said that she had been in a relationship with EF. In 2006 she moved to the same rural town where the applicant lived. In 2006 prior to moving to the rural town, and sometime prior to 26 May of that year, GH obtained a pet dog. The dog’s name was Savage. Savage was a black and white kelpie/ blue-healer cross. The dog was a puppy; it was ‘just tiny’.
It was GH’s normal practice to go with EF to Adelaide about once every year or so. The applicant would mind the dog while they were away. The applicant had keys to their residence. The complainant went to their house on numerous occasions to feed the dog. The complainant told GH that she had done so. On one occasion GH returned from Adelaide and saw the complainant and the applicant at the house. GH said that she was told by the complainant that she and the applicant would watch TV at the house.
Under cross-examination, GH presumed that the dog’s first vaccination would have taken place when the dog was six to eight weeks old.
The informant’s evidence
The informant gave evidence of having taken various police statements. He said that he arrested the applicant on 27 March 2015. He said that as part of the investigation he sought to obtain attendance records concerning bingo nights that had been held at the local bowling club in the rural town where the applicant lived with his wife. In September 2014, he ascertained that bingo nights were held on Saturday nights. He discovered that each person who attended bingo was required to ‘sign in’. He was told that this information was stored. In December 2014 he went to the bowls club and sought these attendance records. He discovered, however, that the records had been destroyed.
The informant gave evidence that the applicant had one prior finding of guilt. This was for theft in 1979; the applicant was fined. The informant said that the applicant denied having offended against the complainant when the allegations were put to him. The informant said, also, that his investigations revealed that there had been no locks on any of the bedroom doors at the second address.
Grounds of appeal
In support of the conviction application the applicant filed a notice of application for leave to appeal against conviction (‘notice of appeal’) listing five proposed grounds of appeal; an ‘amended’ written case in support of those grounds; an unsworn ‘amended’ affidavit authored by the applicant’s wife,[20] pictures of various telephone text messages, a ‘Contract Note’ relating to the sale in 2006 of a property located in the neighbouring rural town where AB and CD later moved; and a ‘Property history’ print out that related to the sale in 2007 of a further property located in that same neighbouring rural town.
[20]This document was treated, by agreement at the oral hearing, as amounting to further written submissions made in support of the proposed grounds of appeal.
The applicant’s proposed grounds of appeal, which make footnote references to police statements and pages of court transcript, are expressed in the following terms:
1.The trial miscarried on account of an improper/ unlawful empanelment process being employed in the selection of the jury in that the application [sic] was not allowed nor afforded a proper or adequate opportunity to make an assessment of any and all potential jurors and thus was not afforded the necessary and reasonable opportunity to exercise his rights to make a peremptory challenge.
2.The Jury:
a.was not empanelled in accordance with the law; and
b.was not constituted according to law.
3.The verdict of the jury was a nullity.
4.During [IJ’s] statement she wrote that [the complainant] was screaming at [a friend] and that she was violent towards the Taxi driver who refused to take her home even [IJ] was concerned about her health because she asked [the complainant] if [the friend] spiked her drink. The DPP witness [IJ] was coerced by the DPP to change her response during [the applicant’s] trial, When [IJ] mentioned [CD’s first name] as the perpetrator the DPP got [IJ] to change her response to [the applicant’s first name] although, her written Affidavit stated clear that it reflected [CD’s first name]. [IJ’s] statement shows that [the complainant] was not coherent and required assistance going to bed. The miscarriage of justice is that we were unable to cross examine [IJ] to further understand the situation that occurred that night.
5.During [the complainant’s] trial, the initial cross examination by [defence counsel at committal] showed that there was question raised by [the magistrate] about evidence that … the informant was to get from the [local] Bowling Club and to retrieve emails and text messages between [AB] and [KL],[21] as there were some emails showing that the two women colluded together and had [the applicant] charged and alternately he was wrongly convicted.
[21]KL is a later partner of CD.
The notice of appeal and amended written case[22] are not professionally drawn. It is apparent that certain of the arguments that the applicant seeks to make in support of the conviction application cannot be sourced to any proposed ground of appeal. Some of the arguments that the applicant makes can only be gleaned from various of the other documents upon which he relies. For this reason, it is convenient to identify the essential topics that the applicant seeks to raise under general headings, with appropriate footnoted cross-reference to the notice of appeal and amended written case.
Empanelment of the jury[23]
[22]In respect of both the conviction and sentence applications.
[23]Grounds 1–3 of the notice of application for leave to appeal against conviction (‘notice of appeal’).
The first submission that the applicant makes is to contend that a fundamental error occurred concerning the empanelment of the jury. The applicant submits that during the process of jury empanelment the applicant was not afforded adequate opportunity to view prospective jurors so that he might appropriately exercise his rights of challenge either peremptorily or for cause. It was submitted, essentially, that the applicant was not given a ‘reasonable opportunity to make [a] peremptory challenge’;[24] nor was he given ‘an adequate opportunity to view the face of [a] potential juror before the potential juror [was] seated or finish[ed] moving in accordance with [a] direction to move’.[25]
[24]Juries Act 2000, s 39(2A) (‘Juries Act’).
[25]Ibid s 39(2B).
In order to assess the merits of this claim, it is necessary to understand the process that was adopted in this case when it came to the empanelment of the jury prior to the applicant’s trial.
The applicant’s trial took place on circuit. The Court, the parties, and, in particular, those representing the applicant, have had the benefit of a video-recording of the empanelment process. This video depicts that, prior to empanelment, the jury panel congregated in a room separate from the court room. It is apparent from the video, however, that those in the panel room and those in the court room were able — at least to some extent — to see each other by means of a television link. It is apparent from the video that it was anticipated that each juror selected from the panel would leave the separate room, enter the court room, and then, once inside the court room, move in a manner so as to give the applicant the opportunity to see the potential juror prior to exercising any right of challenge.
Before the process of empanelment commenced, the trial judge discussed with counsel what was to occur. The judge said that he would permit instructing solicitors to be present in the separate room in which the panel was seated during the process of calling over the panel. It is evident from the video that the members of the panel were required to wear facemasks of the type that have become ubiquitous since the Covid-19 pandemic. The judge said that as each panel member was called, the member would be required to stand and pull down their face mask.
The judge described to counsel the process that would then follow.
HIS HONOUR: We then empanel. When, because of the size of this thing, what we do is the challenge has to be — there’s actual provision to — it’s called the movement provision — I can actually make a direction about this — that when they get to the end of the dock they’ve got to be challenged before then.
PROSECUTOR: Yes.
HIS HONOUR: So they’ll come in, go over to that wall, with their mask down …
PROSECUTOR: So do you mean over this way?
HIS HONOUR: Yes, yes, with their mask down, then back again and the challenge thing, I’ll direct, is to occur prior to their — or [the tipstaff] puts the thing around their neck, so prior his Olympic Games presentation – that’s that, just so — look, for safety sake my associate doesn’t call the next name until we’ve got a bum on a seat. Just — I’m sure that’s probably being paranoid but I just sense someone saying something about that.
PROSECUTOR: Yes.
HIS HONOUR: So that’s all good. I don’t think there’s anything else we need to worry about gents, is there …
It is tolerably clear that the ‘movement provision’ the judge had in mind was s 39A of the Juries Act 2000 (‘Juries Act’), which states as follows:
A trial judge may direct a potential juror to move in a particular direction to distinguish the potential juror from other potential jurors—
(a)to enable the Crown to consider whether to require the potential juror to stand aside in accordance with section 38;[26] and
(b)to enable each person arraigned adequate time and reasonable opportunity to view the face of the potential juror to consider whether to challenge peremptorily the potential juror in accordance with section 39.[27]
[26]Juries Act, s 38 concerns the Crown’s right to stand aside jurors in a criminal trial.
The court video depicts certain aspects of the empanelment process. In the main, the video depicts only the judge, the judge’s associate and the jury panel (positioned in the separate room) each by means of separate cameras. It is apparent, however, that there was an ability for at least one camera to focus on a different part of the court room. For instance, when the applicant was arraigned one of the three cameras altered its default position in order to focus upon the applicant.
The video reveals that, indeed, the jury were called over by name, and — as had been discussed — when this occurred each member of the panel stood and removed their mask. It is apparent from the video — although this can’t be seen clearly — that the instructing solicitors were present with the panel when the panel was called over. The video then reveals the taking of excuses.
The process of empanelment then begins. Just prior to empanelment, the judge’s associate said the following to the applicant:
If you wish to challenge them [the selected jurors], or any of them, you will do so as their names are called before the juror passes the end of the dock.
Prior to the selection of the first juror, for empanelment, it is apparent from the video that the defence instructing solicitor was given permission to sit in the dock with the applicant, so as to assist him in the process of making challenges.
Once a juror’s name was selected, that juror exited the separate panel room. The video does not depict the selected juror entering the court room; nor does the video depict where the juror moved once the juror was inside the court room (that is, prior to the juror taking his or her place in the jury box). Nevertheless, it is apparent from the video that there is a lapse of time between the point at which the selected juror can be seen leaving the panel room and when the next potential juror is selected.
Importantly, it is readily apparent from the video that the applicant exercised two peremptory challenges. It is apparent, also, that the Crown stood one selected juror aside. It can be seen from the video that those three jurors made their way back into the separate panel room.
At the oral hearing of this matter, it became clear that the basis upon which it was contended that the applicant did not have proper opportunity to exercise his rights of challenge was that the court video did not depict the movement of each selected juror once that person had entered the court room. That this was the essence of the applicant’s submission became clear during the following exchange which took place between the applicant’s representative and Priest JA:
APPLICANT’S REPRESENTATIVE: Well, your Honour, when they — when the jury was selected, and I’ve got no objections about the um — the way they balloted it and everything else, but when the jury was brought into the court we couldn’t — the video didn’t show us how they were brought in, but all you know is that they went and sat down. They didn’t stop. [The applicant] didn’t have an opportunity to look at the people that were brought in.
PRIEST JA: How do we know that?
APPLICANT’S REPRESENTATIVE: Well, that’s the point. We can’t see it.
It is true, as was submitted, that the court video does not depict each selected juror’s movement once they entered the court room. The video does not depict the physical positioning of any such juror relative to the applicant from the point of the juror’s entry into the court room until when they took their seat in the jury box. But it can be confidently assumed that the selected jurors did enter the court room and that a jury was struck from those jurors who were not challenged by the applicant, nor stood aside by the Crown.
The video has its limitations in terms of what it depicts; but beyond the assertion that the video does not depict the movement of prospective jurors once in the court room, no evidence — by way of affidavit or otherwise — has been tendered, adduced or referred to on this application which calls into question the fact that the applicant did have a reasonable opportunity to view the selected jurors. That no-one officiating, appearing or representing the parties during the process of empanelment at the trial raised any concern in this respect is a strong indicator that the process adopted did in fact satisfy the relevant conditions of the Juries Act. That the applicant, with the assistance of his instructor, did in fact successfully exercise his right of peremptory challenge on two occasions would appear to put the matter beyond any shadow of a doubt. In short, there is simply no basis to conclude that the applicant did not have adequate opportunity to exercise his rights of challenge, and indeed every reason to conclude to the contrary.
This basis upon which the applicant relies to overturn his convictions cannot be sustained.
The prosecution’s failure to call the applicant’s wife as a witness[28]
[28]‘Ground 2’, as described in the applicant’s amended written case.
Prior to the conclusion of the complainant’s evidence-in-chief, the prosecutor announced in court that he was not going to call the applicant’s wife as a witness as part of the prosecution case. The prosecutor made a similar announcement in respect of EF. A debate then ensued concerning the propriety of the prosecutor’s decision not to call the applicant’s wife.[29]
[29]It is not apparent that any issue was taken with the prosecutor’s decision not to call EF.
The essential complaint made by the applicant in this Court, both in writing and orally, was that a ‘substantial miscarriage of justice’ was caused as a result of the decision taken by the prosecutor not to call the applicant’s wife as a witness. It was submitted by the applicant that his wife could have given relevant evidence concerning whether the applicant had an opportunity to offend against the complainant. It was submitted that the applicant’s wife could have given relevant evidence concerning whether, and, if so, how often, she had gone to bingo at the local bowls club over the relevant period covered by the charges.
To test the merits of the applicant’s submission in this respect it is necessary to examine the debate that took place at trial concerning the prosecutor’s decision not to call the applicant’s wife.
The prosecutor initially told the judge that he had ‘two letters’; one from the applicant’s wife and one from EF. These letters were ‘attached to the brief’ and were signed. But the prosecutor said that there were no police statements taken from either the applicant’s wife or EF. Each had, apparently, ‘declined to make a statement’. The prosecutor characterised any evidence that the applicant’s wife might give as ‘mostly peripheral’. The prosecutor characterised any such evidence as going to ‘opportunity’, in the sense that the applicant’s wife said ‘things like’:
‘I didn’t go to bingo at this time’, when the complainant says it happened at bingo and the times don’t match up; the dates don’t match up.
Crucial to the prosecutor’s decision not to call the applicant’s wife was evidence, of which the prosecutor was aware, of a meeting that had taken place between the applicant’s wife and GH after the police investigation into the applicant had commenced. The prosecutor said that GH described the applicant’s wife as having arrived at some stage at GH’s house armed with a recording of the applicant’s police record of interview. GH said that the applicant’s wife made GH watch this record of interview. GH apparently asked why the applicant had lied in the record of interview. According to GH, the applicant’s wife responded: ‘He didn’t lie. He just got his words mixed up.’
The prosecutor told the court that it was clear that the applicant’s wife had had access to the applicant’s record of interview and had played that interview to GH with the ‘clear motive’ of obtaining ‘some favourable concessions’ from GH. The prosecutor sought to couple this event with what the prosecutor described as ‘the antics outside court room earlier this week’[30] and ‘the [the applicant’s wife’s] antics … at the arrest of [the applicant] … where she calls all the police officers individually liars and creates a ruckus’.
[30]These antics — presumably on the applicant’s wife’s part — were not the subject of any more detailed description.
The prosecutor submitted that he ‘[got] the firm impression that [the applicant’s wife] will not give reliable evidence’ and that ‘[s]he’s entirely partisan and will say whatever it takes that in her mind will assist [the applicant] to beat these charges’.
Importantly, the prosecutor outlined that he had given consideration to calling the applicant’s wife and then making an application to cross-examine her pursuant to s 38 of the Evidence Act 2009 (‘Evidence Act’). But he submitted that if he was ‘compelled to cross-examine’ the applicant’s wife he would be required to do so by reference to the applicant’s record of interview (which, it may be inferred, contained a lie told by the applicant). The prosecutor indicated that, prima facie, he had chosen not to lead the applicant’s record of interview in the Crown case out of fairness to the applicant. Additionally, the prosecutor indicated that were he to cross-examine the applicant’s wife he would have to allege that she had played the applicant’s record of interview to GH in an attempt to change GH’s evidence. The prosecutor submitted to the judge that if he did cross-examine the applicant’s wife in this manner, he feared that the jury ‘may well decide this case not on the evidence that relates to the accused man’.
In summary therefore, the prosecutor’s position was that the applicant’s wife was an unreliable witness but that if he was required to expose such unreliability through cross-examination, doing so would cause substantial unfairness to the applicant. It was for these reasons that the prosecutor had decided not to call the applicant’s wife.
Defence counsel submitted that the applicant’s wife appeared to be a relevant witness given what she was able to say about when she went to bingo, when the babysitting of the complainant commenced and when such babysitting ceased.
Nevertheless, the judge — it seemed — developed a rather firm view of the evidence that the applicant’s wife might give. His Honour expressed the view that the applicant’s wife was going to ‘blow the jury, isn’t she? I mean, we’ve got to be realistic about this’. As the judge put it:
My real fear here would be, that if that went haywire, and that witness was called at your request, I wouldn’t be discharging any juries. And I think that’s there a very real chance from what I’ve read and seen so far, that her performance may well end up getting your client convicted.
Defence counsel submitted:
I accept what my learned friend states about the reason for his view, and I accept that, therefore, it’s within his discretion not to call a witness. I just want — I’ll put it on transcript, that my view is, one, the issue of when they went to bingo, and when they started babysitting, and when they finished babysitting, is pretty central to the complainant’s narrative, and it would appear that, that is a witness who could give evidence on that.
…
I’ve drawn it to my learned friend’s attention, I understand it that the Crown still doesn’t want to call her, and therefore, all I can do is operate the trial on the following basis, that the Crown is not calling [the applicant’s wife] …
Defence counsel thus acknowledged that he would conduct the trial on the basis that the Crown would not be calling the applicant’s wife; that the Crown would not lead any evidence concerning the applicant’s wife’s attempts to alter GH’s evidence (or, as defence counsel put it: the ‘attempt to pervert’), and that the Crown would not lead the applicant’s record of interview beyond the fact of the applicant’s bare denials of having offended against the complainant. The judge responded that defence counsel’s approach amounted to ‘very sound forensic reasoning, in my view’.
The judge then put to defence counsel: ‘You can call the wife if you want to.’ The judge indicated, also, that in the event that the prosecutor cross-examined the applicant’s wife, he would not be limiting such cross-examination ‘in advance’. As the judge put it ‘[the prosecutor’s] got open slather, as long as it’s relevant’.
At this point defence counsel sought a ruling from the judge that if the Crown was going to conduct its case in the manner described, then the prosecutor ought be prevented from cross-examining the applicant’s wife on the ‘supposed lie in a record of interview, when the jury hadn’t heard it’.
But the judge would have none of this. The judge indicated that he was not going to constrain the Crown in terms of cross-examination. Indeed, the judge went even further. The judge went so far as to indicate that if the applicant’s wife was called as a witness by defence and ended up abusing the prosecutor from the witness box, then the judge would ‘not be discharging the jury’ and that that would be ‘[defence counsel’s] forensic decision which [he’s] made on instructions’ and ‘that’s the way it is’.
Defence counsel then inquired of the judge whether the situation had arisen ‘where the court is saying that the Crown should be calling [the applicant’s wife]’. The judge responded: ‘I don’t think they should. I think they shouldn’t’. The judge indicated, yet again, that were the applicant’s wife to be called by the defence it would be difficult to constrain the cross-examination of her by the prosecutor. Defence counsel then indicated that he was ready to proceed.
This summary of events reveals that the judge accepted, and considered correct, the Crown’s decision not to call the applicant’s wife on the basis of her perceived unreliability. Moreover, the discussion reveals that if the defence chose to call the applicant’s wife it is unlikely that the prosecutor would have been constrained in his cross-examination of her. Thus it seems likely that had the prosecutor called the applicant’s wife, and then sought leave to cross-examine her pursuant to s 38 of the Evidence Act, the prosecutor would have been permitted to put to the wife that she had attempted to alter GH’s evidence. This would, in turn, likely have revealed a lie told by the applicant in his record of interview. The evidence of the lie would not otherwise have been before the jury. Yet it seemed to be agreed that any evidence that the applicant’s wife might give, at its highest, went only somewhat indirectly to opportunity and did not it seems provide a firm alibi.
The applicant’s submission focusses attention upon the prosecutor’s decision not to call the applicant’s wife as a witness in the prosecution case.
In R v Apostilides (‘Apostilides’),[31] the High Court stated six propositions that apply in respect of a prosecutor’s duty to call witnesses:
1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[32]
[31](1984) 154 CLR 563; [1984] HCA 38 (‘Apostilides’).
[32]Ibid 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ).
In further explication of the first proposition, the Court in Apostilides referred to the prosecutor’s duty as being a ‘lonely one’ and a ‘heavy one’.[33] In respect of a decision whether or not to call a person whose name appears ‘on the indictment and from whom the defence wish to lead evidence’[34] the Court noted that this decision must be made ‘with due sensitivity to the dictates of fairness towards an accused person’.[35] As the Court in Apostilides held:
A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.[36]
[33]Ibid 575–6.
[34]As it happens, the name of the applicant’s wife was included among the list of witnesses on the indictment. It was, however, marked with an asterisk. Above the list of witnesses included on the indictment the following was recorded: ‘Subject to the exercise of the prosecutor’s discretion at the trial, the Director of Public Prosecutions proposes to call all witnesses except those whose names are marked with an asterisk.’
[35]Apostilides (1984) 154 CLR 563, 576 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38.
[36]Ibid (emphasis added).
In Whitehorn v The Queen,[37] Dawson J observed, as follows, in respect of a decision by a prosecutor not to call a witness who is considered to be unreliable:
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.[38]
[37](1983) 152 CLR 657; [1983] HCA 42.
[38]Ibid 674.
And speaking generally about the circumstances in which a failure by a prosecutor to call a witness will give rise to a miscarriage of justice (the sixth proposition extracted from Apostilides set out above) the High Court in Apostilides stated:
In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. ... So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.[39]
[39]Apostilides (1984) 154 CLR 563, 577–8 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38.
One is able to glean from the exchanges between counsel and the judge, summarised above, that there did not seem to be any dispute that the applicant’s wife — armed with the applicant’s record of interview — had attended upon GH and had attempted to persuade GH to alter her evidence so that it might conform with the applicant’s version of events given in his record of interview. Indeed, it seemed not to be in issue that this conduct on the part of the applicant’s wife was apt to be characterised as an ‘attempt to pervert’.
It is apparent that the prosecutor had given close consideration to whether he was able to fulfil his duty as a Minister of Justice by calling the applicant’s wife but then cross-examining her so as to reveal the wife’s unreliability. But this, so the prosecutor determined, was not possible; to have done so would necessarily have revealed that the applicant lied in his record of interview. In circumstances where the prosecutor was not otherwise disposed to tender the applicant’s record of interview in evidence as part of his case, such cross-examination would likely have caused considerable prejudice to the applicant. But not only that; also, as the trial judge observed, the apparent partiality of the applicant’s wife may in itself have redounded significantly to the applicant’s detriment.
The applicant and his wife visited CD, KL and their two children at their address. The applicant’s wife and KL were in the kitchen. The applicant was playing in the backyard with MN and OP. CD was at the front of the house. The applicant put his hands inside the back of MN’s pants and underwear and touched MN’s anus before removing his finger (charge 1 — plea indictment — sexual assault of a child under 16). The applicant washed his hands using a tap nearby. MN cried and went inside. MN told the applicant’s wife about what had occurred. MN did not, at this stage, tell KL about what had happened.
The applicant and his wife visited CD, KL and their children on another occasion. On this occasion the applicant was playing on the trampoline in the backyard with the two children. The applicant put his hand inside the back of OP’s pants and underwear and touched her anus and made a tickling motion (charge 2 — plea indictment — sexual assault of a child under 16). He then removed his finger from her pants and they continued to play on the trampoline.
During a later recorded interview conducted with OP she recalled, in 2018 or 2019, playing hide and seek on the applicant’s boat that had been parked at the second address. OP hid on the boat with the applicant while MN looked for them. Whilst the two were hiding, the applicant placed a blanket over her and told her to close her eyes. The applicant then touched the outside front area of OP’s vagina through her pants and underwear (charge 3 — plea indictment — sexual assault of a child under 16).
Delivering his plea, defence counsel emphasised the applicant’s age. The applicant was almost 75 at the time of the plea. Counsel listed various problems that concerned the applicant’s health — Type 2 diabetes; cholesterol issues and heart problems. It was conceded, however, that the applicant would be appropriately treated for these complaints while he was in custody.
Counsel submitted that due to the applicant’s age, each year that the applicant had left took on greater significance. As it was put by counsel:
[T]he realistic situation is any sentence Your Honour imposes will represent the vast majority of the remainder of his years.
Counsel encouraged the judge to impose a non-parole period that allowed for ‘hope in respect of having time in the community before he dies’.
The prosecutor told the judge that, as a result of the applicant’s offending, the applicant would spend the rest of his life on the sex offenders’ register. The prosecutor told the judge, also, that it was necessary in respect of charge 2 on the plea indictment that a ‘standard sentence’ of four years’ imprisonment be taken into account.[68]
[68]See Sentencing Act 1991, ss 5A & 5B (‘Sentencing Act’).
The reasons for sentence
In his reasons for sentence,[69] the judge took into account that the applicant pleaded guilty to the second indictment. The judge took into account that the applicant was ‘effectively now 75 years of age’ and that ‘for these purposes’ the applicant had no prior convictions.[70] The judge found that he was precluded from finding that the applicant was remorseful concerning the offending on the trial indictment. The judge considered that ‘in so far as the plea of guilty to the second matter[71] is concerned, it is not exhibitive of remorse in any way, shape or form’.[72] The judge observed that the applicant’s ‘attitude throughout the trial and throughout the plea’ was indicative of a lack of remorse.[73] Indeed, the judge addressed the applicant in the following terms during the delivery of the reasons for sentence:
[T]o the extent yesterday where you were shaking your head while the victims were reading their impact statements [this] indicates a total lack of remorse and insight.[74]
[69]DPP v Frendo (Unreported, County Court of Victoria, Judge Smallwood, 6 April 2022) (‘Reasons’).
[70]Reasons, [2], [4].
[71]The plea indictment.
[72]Reasons, [4].
[73]Reasons, [5].
[74]Reasons, [5].
The judge considered that the applicant’s lack of remorse did not ‘aggravate the situation, it just simply takes away what would have been an extremely important mitigating factor in this sentencing exercise’.[75]
[75]Reasons, [5].
The judge noted that charge 2 on the plea indictment attracted a ‘standard sentence’ of four years’ imprisonment.[76] The judge took into account that from charge 5 on the trial indictment, the applicant was to be sentenced as a ‘serious sex offender’[77] in which case community protection became the principle sentencing purpose and cumulation was presumed unless the judge otherwise ordered. The judge indicated that there needed to be some cumulation.[78]
[76]Reasons, [6].
[77]Sentencing Act, pt 2A, s 6E.
[78]Reasons, [7].
The judge then summarised the applicant’s offending on the trial and plea indictments. The judge observed that the applicant had breached a duty of trust owed to his victims who were ‘very young indeed, very vulnerable, and unable to defend themselves or do anything about it’.[79]
[79]Reasons, [34].
The judge described the breach of trust involved in the applicant’s offending as ‘massive’ and emphasised the need to protect children from offending of the nature committed by the applicant.[80] The judge placed particular weight upon general deterrence. In this respect the judge observed that
people in [the applicant’s] situation who have the arrogance to simply think that they can do this to children over an extended period of time for their own perverted pleasures and think they can get away with it might think twice. The sentences have to be … significant enough … to deter other likeminded men.[81]
[80]Reasons, [47].
[81]Reasons, [50].
The judge considered specific deterrence in the applicant’s ‘particular situation’ to be of ‘no real value’ because of ‘the length of the sentence and because of [the applicant’s] age’. In terms of ‘community protection’, the judge considered that ‘the odds of [the applicant] offending again in this way once [he was] released, if [he was] released, ultimately from prison would be very low indeed’.[82]
[82]Reasons, [49].
The judge considered that denunciation ‘must be shown’ and ‘the punishment must be effective’.[83] The judge remarked that he was
very conscious of [the] ultimate sentence, very conscious of totality, and … conscious of the need where possible, to not impose a crushing sentence.[84]
[83]Reasons, [50].
[84]Reasons, [51].
The judge noted that all the charges carried a maximum penalty of 10 years’ imprisonment.[85]
[85]Reasons, [27].
The judge afforded the applicant some mitigation on account of the utilitarian benefit that flowed from the pleas of guilty entered on the plea indictment. Nevertheless, the judge considered that ‘one must bear in mind’ that in that particular matter ‘the two children … went through special hearings and effectively the trial in so far as they were concerned was complete before you pleaded’.[86] The judge allowed the applicant further mitigation given that he had indicated pleas of guilty on the plea indictment during a time when the court lists were congested due to the Covid-19 pandemic.[87] As to Covid-19, the judge indicated that ‘certainly the initial stages of [the applicant’s] sentence will be undergone in Covid circumstances’.[88]
[86]Reasons, [28].
[87]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[88]Reasons, [28].
The judge observed that he would take the applicant’s age ‘into account’ in accordance with ‘authority on age’. Nevertheless, his Honour again addressed the applicant in the following terms, namely:
If you seek to offend in that way as an old man, you will be jailed as an old man and you will have to simply wear the consequences.[89]
[89]Reasons, [29].
The judge observed that the applicant had been born overseas just after the Second World War and had then emigrated to Australia. The applicant had always worked since the age of 15 and had a ‘very good work record’. The applicant had been married for 55 years and had two children. It was noted that it would cause the applicant difficulty and anxiety being separated from his wife for a ‘very significant period of time, which may prove to be the rest of [the applicant’s] life’. The judge took into account anxiety that the applicant would likely experience as a result of potential loss of property due to civil action taken by the victims.[90]
[90]Reasons, [31]–[33].
The judge placed a degree of emphasis upon the profound effect that the applicant’s offending had upon the complainant the subject of the trial indictment. This complainant had suffered severe depression and anxiety due to the applicant’s offending; this suffering was to the point, it seems, of the complainant feeling suicidal and needing substantial professional assistance. The applicant’s offending had caused this complainant real torment.[91]
[91]Reasons, [36]–[39].
The judge also took into account the effect that the applicant’s offending had upon the complainant’s mother. The mother felt that she had failed in her responsibility to her child by entrusting the complainant to the applicant’s care.[92]
[92]Reasons, [42].
The mother of the victims of the applicant’s offending on the plea indictment said that she felt ‘betrayed’, ‘manipulated’ and ‘deceived’. The effect of the applicant’s offending upon MN was particularly profound given that MN was on ‘level two autism spectrum disorder’ and suffered from ‘ADHD’.[93]
[93]Reasons, [44]–[45].
Submissions
At the hearing of the sentence application it was acknowledged that proposed ground 1 had in effect been argued as part of the conviction application. It was not pressed further. Proposed grounds 2 and 4 were argued as particulars of proposed ground 3.
Under proposed ground 3, it was submitted by the applicant that the sentences imposed upon the applicant were manifestly excessive for a person who was to be treated as a first-time offender, a person who was aged 75, and someone who had pleaded guilty in respect of the plea indictment. It was also contended that the judge had placed undue weight on the victim impact statements that were tendered on the plea.
The respondent submitted that the sentences were not manifestly excessive. The respondent emphasised that the applicant’s offending occurred on numerous different occasions; that the offending involved complainants who were ‘very young’ and ‘very vulnerable’; and that the applicant had committed significant breaches of trust given that he was either actually, or in substance, the complainants’ grandfather. The respondent emphasised, additionally, that the judge had taken into account totality and had ordered significant concurrency between the individual sentences. It was submitted that the judge was required to take into account the effect of the applicant’s offending upon victims[94] as well as a victim’s ‘personal circumstances’[95] and that he had not placed undue weight upon these matters.
[94]See Sentencing Act, s 5(2)(daa).
[95]See ibid s 5(2)(da).
Analysis
A ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[96] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and to the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[97]
[96]See Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2001] VSCA 157.
[97]Ibid.
In a case that involves an offender of advanced age, this Court has stated that while it is a ‘weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody’, nevertheless it may, depending upon the circumstances, ‘be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody’.[98]
[98]R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave and Redlich JJA, Hollingworth AJA); [2009] VSCA 271.
I consider that, in all the circumstances, that the individual sentences imposed upon the applicant in respect of charges 6, 8, and, most particularly, 3 are stern paying particular regard to the applicant’s age at the time of sentence and the applicable maximum penalty of 10 years’ imprisonment. Nevertheless, in light of the pleas of not guilty and the applicant’s complete lack of remorse I do not consider that these sentences are manifestly excessive. I consider, however, that, in all the circumstances, all the other individual sentences imposed upon the applicant are well within range.
I have, however, come to a different conclusion when it comes to certain of the orders for cumulation that were made by the sentencing judge. As the judge made clear in his reasons for sentence, the applicant was to be sentenced as a ‘serious sexual offender’ on all charges save for charges 2 and 3 on the trial indictment.[99] One consequence of this was that the presumption of concurrency as between individual sentences was reversed.[100]
[99]Reasons, [7].
[100]See Sentencing Act, s 6E. See also Gordon v The Queen [2013] VSCA 343, [74] (Redlich JA); McL v R (2000) 203 CLR 452, 476–7 [76] (McHugh, Gummow, and Hayne JJ); [2000] HCA 46.
The order for cumulation of two years on the individual charge 3 sentence of six years in respect of the trial indictment invites a degree of scrutiny. The applicant was not to be sentenced as a ‘serious sexual offender’ on this charge and thus the presumption of concurrency applied. Also, the offending connected with this charge was perhaps not the most serious aspect of the offending which took place during the second incident described by the complainant at trial; and it formed part of a series of offences that were committed over the course of this incident. These matters underscored the need for concurrency when it came to the charge 3 sentence on the trial indictment.
In these circumstances, I consider that the order of cumulation of two years ordered on the charge 3 sentence was manifestly excessive and must be reduced.
Save in one respect, I consider that all the other orders for cumulation made in connection with the trial indictment are unremarkable. That, for example, the judge chose to cumulate one year of the two-year sentence imposed on charge 7 is to be expected where, on charge 7, the applicant was sentenced as a ‘serious sexual offender’ with the consequent reversal of the presumption of concurrency that is entailed. Also, the charge 7 offending stood in isolation as its own separate incident (unlike, say, the charge 3 sentence) and was apt — for this reason — to attract a greater degree of cumulation.
It was open, I consider, for the judge to order two years’ cumulation on the charge 8 sentence. Again, the applicant was a ‘serious sexual offender’ for the purposes of this offence and it was the most serious offence committed as part of the fourth occasion on the trial indictment. But the order of one year’s cumulation made in respect of the two-year sentence imposed for charge 10 was, I consider, manifestly excessive notwithstanding the applicant’s characterisation as a ‘serious sexual offender’ for the purposes of this charge. I consider that this is so in circumstances where the offending connected with this charge formed the least serious aspect of the offending that made up the fourth occasion on the trial indictment.
Having found that the orders for cumulation made concerning charges 3 and 10 are manifestly excessive, I would reduce each of those orders of cumulation to orders of six months in duration.
I consider that, in all the circumstances, the individual sentences and orders for cumulation imposed in respect of the plea indictment are all within range as is the order for cumulation of 18 months on the plea indictment.
The effect of the proposed reduction in the orders for cumulation made in connection with charges 3 and 10 on the trial indictment will reduce the applicant’s total effective sentence across both indictments to a period of 12 years’ imprisonment. There having been a reduction to this total effective sentence, there ought also be a consequent reduction to the non-parole period. I would therefore set aside the non-parole period of 10 years and, in lieu thereof, impose a new global non-parole period of 8 years and 6 months.
Conclusion
The application to extend time in respect of the sentence application is granted; leave to appeal is also granted on the sentence application and the appeal allowed. The applicant will be re-sentenced in accordance with the conclusions that appear above.
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[27]Juries Act, s 39 concerns an accused person’s right to make peremptory challenges.
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