Garay v the Queen (No 3)
[2023] ACTCA 2
•27 January 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Garay v The Queen (No 3) |
Citation: | [2023] ACTCA 2 |
Hearing Date: | 18 August 2022 |
DecisionDate: | 27 January 2023 |
Before: | McCallum CJ, Elkaim and Collier JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Appeal against conviction – Verdict by judge alone – whether verdicts are unreasonable – where evidence adduced at trial supports findings of guilt – whether the trial judge failed to apply the Liberato direction – whether the trial judge failed to apply the Markuleski direction – whether trial judge failed to fulfill minimum requirement to expose reasoning process – where credibility of complainant is contested – whether the proviso is to be applied |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92E(2), 92K(2) Crimes (Appeal and Review) Act 2001 (NSW) s 55(1)(b) Supreme Court Act 1933 (ACT) ss 37O(2), 68C |
Cases Cited: | AB v R [2022] NSWCCA 104 AK v the State of Western Australia [2006] WASCA 245 Vunilagi v The Queen [2021] ACTCA 12 |
Parties: | John Paul Garay ( Appellant) The Queen ( Respondent) |
Representation: | Counsel J White SC ( Appellant) S Jerome ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 43 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Loukas-Karlsson J Date of Decision: 31 August 2022 Case Title: R v Garay Citation: [2021] ACTSC 215 Court File Numbers: SCC 117 of 2020; SCC 118 of 2020 |
McCallum CJ:
John Garay was tried by judge alone on an indictment containing 18 counts of sexual offences alleged to have been committed when the complainant, a boy, was of or above the age of 10 years but under the age of 16 years. The indictment included two counts alleging sexual intercourse contrary to s 92E(2) of the Crimes Act 1900 (ACT) and 16 counts alleging an act of indecency contrary to s 92K(2) of the Act.
The trial judge (Loukas-Karlsson J) returned verdicts of not guilty on counts 1, 3, 4, 5, 6, 7, 8, 9, 10 and 18 and verdicts of guilty on counts 2, 11, 12, 13, 14, 15, 16 and 17. For those offences, a sentence of a term of imprisonment for five years with a non-parole period of three years was imposed.
Mr Garay appeals against his conviction on the counts on which he was found guilty. There is no appeal against sentence.
The appeal is brought pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT). That section provides:
(2) The Court of Appeal on an appeal against conviction must—
(a) allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or
(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
(iii) on any other ground there was a miscarriage of justice; or
(b) dismiss the appeal.
Section 68C of the Supreme Court Act provides that a finding of guilt by the judge in a trial without a jury has, for all purposes, the same effect as a verdict of a jury. Such a finding must accordingly be taken to be amenable to appeal on the same grounds: cfFilippou v The Queen [2015] HCA 29; 256 CLR 47 at [9] (French CJ, Bell and Keane JJ, Nettle and Gageler JJ agreeing at [74]).
The appellant’s notice of appeal specifies five grounds of appeal but those were helpfully distilled to three in his written submissions, by reference to the three limbs of s 37O(2). As reframed, the grounds are as follows and are referred to in that way in this judgment:
(1)the verdicts are unreasonable, or cannot be supported, having regard to the evidence;
(2)the trial judge erred in law in failing to apply either the Liberato direction or the Markuleski direction and in finding there was a case to answer on counts 2, 11 and 12;
(3)the trial judge failed to provide adequate reasons as required pursuant to s 68C(2) of the Supreme Court Act resulting in a miscarriage of justice.
The case on appeal was further refined by the appellant’s concession that the alleged error of law in finding there was a case to answer on counts 2, 11 and 12 was effectively subsumed within the unreasonable verdict ground. Accordingly, it is not necessary to address that point separately.
In the written submissions, the unreasonable verdict ground was put forward as the central complaint. In his separate judgment below, Elkaim J has noted that, conversely, the ground alleging inadequate reasons dominated the appeal hearing. His Honour has formulated his reasons on that basis. In my respectful opinion, the convenient course is to determine the unreasonable verdict ground first since that ground, if successful, would result in the entry of verdicts of acquittal: cfAK v Western Australia [2008] HCA 8; 232 CLR 438 at [18] (Gleeson CJ and Kiefel J). However, as I will explain, it is necessary for that purpose to consider the use that can properly be made of the trial judge’s reasons in light of the appellant’s contention that they were inadequate.
The appellant’s written submissions reversed the order of the remaining grounds, addressing the alleged failure to give reasons second and the alleged failure to apply the two legal directions third. I will adopt the same course.
Ground 1: unreasonable or unsupported verdicts
The submissions in support of the unreasonable verdict ground addressed the convictions in two groups. As to counts 2, 11 and 12 (three acts of indecency alleged to have been committed on separate occasions), the appellant reprised the argument put to the trial judge in support of the “no case” submission that the complainant’s evidence was “formulaic” and that “the counts were accordingly uncertain”. That point, which was referred to in the submissions variously as the “uncertainty” or “ambiguity” or “specificity” point, is referred to in this judgment as the uncertainty argument. The appellant further contended that there was a lack of corroborating evidence in support of those counts and that material witnesses were not called.
The convictions on the remaining counts, referred to by the appellant as the “train set” counts, were challenged on the basis that the complainant’s evidence in support of those counts was “inextricably linked to the appellant working on a train set in his garage”. The appellant contends that the evidence established that the train set was not built until considerably later, “indicating that the complainant was mistaken or lying and in any event unreliable.”
Principles to be applied in determining an unreasonable verdict ground
The approach to be taken to a ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence is well settled. As submitted by the appellant, the law remains as stated by the High Court in M v The Queen [1994] HCA 63; 181 CLR 487 at 493 [7] (Mason CJ, Deane, Dawson and Toohey JJ). The question the appellate court must ask itself (in an appeal after a trial by jury) is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
In Filippou, an appeal from New South Wales, the High Court held that the approach is the same after a trial by judge alone: at [11]–[12] (French CJ, Bell, Keane and Nettle JJ); [81]-[82] (Gageler J). That conclusion was based on the language of the relevant New South Wales provision, s 133(1) of the Criminal Procedure Act 1986 (NSW), particularly the fact that the section equates a judge’s finding of guilt with the verdict of a jury “for all purposes”. As already noted, s 68C(1) of the Supreme Court Act is in substantially the same terms. It may accordingly be taken that the test in M applies equally to a finding of guilt by a judge in the Australian Capital Territory.
The question for the appellate court is one of fact. It is not to be confused with the question of law whether, taken at its highest, the evidence can support the verdict. As explained in M, it is a question of fact “which the court must decide by making its own independent assessment of the evidence”: at 492 [6]. In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], the question was framed as being whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, “which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.” (Emphasis in original.) However, the High Court has since clarified that the question so framed is not to be understood to qualify the enduring principles stated in M: see Pell v The Queen [2020] HCA 12; 268 CLR 123 at [43]–[45]; Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [13]. To say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell at [45].
Finally, it is well settled that, in determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M at 494 [8]. In Filippou, the High Court treated that principle as being of equal application in an appeal from a finding of guilt by a judge: at [12] (French CJ, Bell, Keane and Nettle JJ); [83] (Gageler J). Despite this well-established principle, appellate courts are repeatedly invited to place more faith in their own logic and intellect than to give effect to the acknowledged advantage of being immersed in the atmosphere of the trial. The weight to be given to the trial judge’s advantage in seeing and hearing the evidence in the present case is a matter raised by a submission made by the appellant, to which I now turn.
Significance of the trial judge’s assessment as to credibility
The trial judge recorded her view that the complainant was “highly credible” and that there was “nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence”: R v Garay (No 3) [2021] ACTSC 215 at [796]–[797]. After some brief additional observations, her Honour concluded at [799], “[a]s far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable”.
The appellant submitted, in effect, that this Court should pay no heed to that assessment to resolve any doubt as to the appellant’s guilt because it was not supported by “intermediate reasoning”. The submission was not put in those terms but that is as I understood its effect. The Director of Public Prosecutions submitted that any absence of intermediate reasoning could not preclude consideration of the trial judge’s “explicit assessment” of the complainant’s evidence and that the importance of that assessment is critical, given the judge’s advantage of seeing and hearing the witnesses give evidence over a number of days.
The point is moot because, for the reasons explained below, my assessment of the whole of the record of the trial has not left me in any doubt as to the appellant’s guilt. It follows that I have reached the conclusion that the findings of guilt were open to the trial judge (in the sense explained in M) without needing to resort to her Honour’s assessment of the complainant’s credibility. I am nonetheless fortified in that conclusion by the assessment recorded by the trial judge. For that reason, and in deference to the careful submissions put by the appellant, it is appropriate to engage with the point.
The appellant’s central argument was that, “unlike was the case in Pell or Vunilagi, no assumption can be made that the evidence of the complainant was assessed to be credible and reliable”.
The submission rolls up several propositions that need to be considered separately. It is correct that, in Pell, the High Court proceeded on the assumption that the evidence of the complainant was assessed to be credible and reliable. The Court explained at [39] that, in determining an unreasonable verdict ground “in a case such as the present”, the appellate court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, the task then being to:
"…examine the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”.
However, that was an appeal from the verdict of a jury. It was also an appeal in which the appellant had indicated (in the context of a debate as to whether the Victorian Court of Appeal should watch the audio-visual recording of the complainant’s evidence) that his case on appeal did not depend upon an assessment of the credibility of any witness: at [32]. Rather, his argument was that, assuming a credible account, there were inconsistencies and discrepancies that deprived the Crown case of the cogency required for proof beyond reasonable doubt.
I interpolate to note that the appellant’s central challenge to the findings of guilt on counts 2, 11 and 12 is in the same category. The uncertainty argument is capable of being determined on the assumption that the complainant was assessed to be credible and reliable (hence its assimilation of the no case submission). The submissions invited this Court to conclude, notwithstanding a favourable assessment of credibility, that the trial judge ought nonetheless to have entertained a reasonable doubt as to proof of guilt on those counts.
In any event, returning to Pell, the approach taken by the High Court (of proceeding upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable) was appropriate in a case of that kind. An assumption as to the jury’s assessment of the complainant’s credibility and reliability was made because juries do not give reasons. The content of the assumption followed inexorably from the fact of conviction. In order to convict, the jury must have believed the complainant.
The same can be said in criminal proceedings for sexual assault tried by judge alone; in order to convict, the judge must believe the complainant, at least as to the elements of the offence. However, it will not ordinarily be necessary to make any assumption on that issue because the trial judge will have given reasons that include an assessment of the credibility and reliability of the complainant.
So it was in Vunilagi (the second authority invoked by the appellant in the submission set out above). Following a trial without a jury, the trial judge in that case (Murrell CJ) recorded her assessment that the complainant “presented as an honest witness” and supported that assessment with her observations about the way in which the complainant had given her evidence: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 at [360].
The Court of Appeal in Vunilagi v The Queen [2021] ACTCA 12 nevertheless cited the passage in Pell at [39] (quoted above) in the context of an observation that, to have convicted on the counts she did, the trial judge “must have accepted the complainant’s evidence as credible and reliable in respect to those counts”: at [10] (Mossop, Loukas-Karlsson and Abraham JJ). The reference to the assumption adopted in Pell was, with respect, inapposite in that context. There was no need to deduce the assumed reasoning of the trial judge in Vunilagi because her Honour gave reasons which identified and explained her assessment of complainant’s credibility. Importantly, however, there was no reason not to have regard to that assessment because, although some criticism was evidently made of her Honour’s reasons in the appeal, there was no ground of appeal (as there is here) asserting a failure to provide adequate reasons resulting in a miscarriage of justice: Vunilagi appeal judgment at [17].
The point is that care must be taken in applying principles concerning the approach taken in an appeal from the verdict of a jury to an appeal from a finding of guilt by a judge. As established by the decision of the High Court in Filippou, the question for each kind of ground of appeal is the same, whether the appeal follows a trial by judge or by jury. However, in an appeal following a trial by judge alone, to the extent that a ground of appeal is capable of being informed by the judge’s reasons, the approach might be different. A helpful analysis of the ways in which a different approach might be taken according to the issues raised on appeal is provided in the separate judgment of Gageler J in Filippou at [83] where his Honour acknowledged that a court of appeal might, in a proper case, adopt unchallenged intermediate findings of fact of the trial judge, without need for independent assessment, whereas in other cases the court will have to undertake a full independent assessment of the evidence without regard to the trial judge’s reasons.
I apprehend that is the real point sought to be raised by the appellant’s submission. Although framed (with respect, inappositely) by reference to the “assumption” to be made in accordance with the decision in Pell, the argument was directed to the reliance that can properly be placed on an assessment of credibility recorded in an inadequately reasoned judgment. That is a legitimate concern.
However, there is a difficulty with the way the point was framed. The submissions implicitly equated an assessment of credibility with an intermediate finding of fact. Citing the remarks of Gageler J in Filippou at [83] to which I have referred, the appellant acknowledged that the Court of Appeal can, in an appropriate case, “adopt intermediate findings of fact of the trial judge” but contended that this Court cannot make the “assumption” or adopt the conclusion that the complainant was credible and reliable because there was “no intermediate reasoning” to justify that conclusion.
The argument conflates findings of fact with the process by which they are reached. An assessment of credibility is part of the process of deciding the facts. Such a conclusion should be explained but it is not susceptible of the same kind of intermediate reasoning as a finding of fact. It is not a critical analysis of the statements of another. It is an expression of one’s own experience of seeing and hearing the witnesses give evidence. As a conclusion informed by the advantages of presiding over a trial, it is one ordinarily to be given some deference by an appellate court.
Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
I accept that, in principle, there could be cases in which a trial judge’s assessment as to credibility could properly be put to one side by the appellate court because the particular finding was inadequately explained or was predicated on a mistake of fact or law. It is probably unhelpful to suggest examples, lest they be understood to constrain the consideration of a future case.
As already noted, as in Pell, the appellant’s central case on appeal in respect of counts 2, 11 and 12 does not depend upon an assessment of the credibility of any witness. However, the case in relation to the train set counts squarely challenges the complainant’s credibility. There are also some separate points made about credibility in relation to counts 2, 11 and 12. In each instance, the challenge is one in respect of which the trial judge’s assessment as to credibility would ordinarily properly be taken into account. In circumstances where the judge’s reasons are impugned, the question raised by the appellant is whether that assessment can and should properly be put to one side here, notwithstanding the deference ordinarily due to such an assessment.
In determining that question, it is appropriate to foreshadow my conclusion as to the third ground of appeal concerning the alleged inadequacy of the trial judge’s reasons. Justice Elkaim has outlined in detail the structure of her Honour’s judgment. In short, the bulk of the judgment consists of a lengthy recitation of the evidence and submissions without any analysis along the way. The consideration at the conclusion of the judgment is spare. However, for the reasons explained more fully below in the discussion of that ground, while the approach taken by the trial judge to the writing of her judgment is undesirable and not to be imitated, I am not persuaded in the circumstances of this case that the reasons fall short of the statutory requirement.
It follows that, had it been necessary to consider whether any doubt as to the appellant’s guilt was resolved by the advantage of the trial judge in seeing and hearing the witnesses, in my view it would have been open to this Court at that point to have regard to the trial judge’s assessment that the complainant was a credible and reliable witness. Indeed, in accordance with the authorities discussed above, this Court could not accede to the unreasonable verdict ground without making full allowance for the advantage enjoyed by the trial judge, which necessarily underpinned her conclusion as to credibility.
However, for my part, that has not been necessary. I have determined ground 1 based on my own review of the whole of the evidence without any regard to the reasons for judgment of the trial judge: cfFilippou at [83].
A case involving direct evidence of sexual assault is not a circumstantial case
Separately, the appellant relied on a passage from the decision of the High Court in Coughlan v The Queen [2020] HCA 15; 267 CLR 654 for its reiteration of the task for an appellate court “where, as in the present case, the Crown relies as part of its proof on circumstantial evidence”. The passage cited was [55] of the judgment, where the Court (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) said:
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
A footnote to that passage included reference to the decision of the High Court in Shepherd v The Queen [1990] HCA 56; 170 CLR 573 which remains the seminal authority as to the proper approach to a circumstantial case.
I do not think the principles stated in Coughlan and Shepherd assist in this case. Coughlan was properly characterised as a circumstantial case attracting the principles in Shepherd. Mr Coughlan was charged with arson and attempted insurance fraud after his holiday house was destroyed by fire following an explosion. There was no eyewitness who gave an account of any act of his that caused the explosion. Instead, the prosecution case was based on a combination of circumstances (listed in full at [10] of the judgment) including Mr Coughlan’s presence at the scene of the explosion, the observations of witnesses who saw him run away and scientific evidence linking the cause of the explosion to the clothes he was wearing at the time.
The present case is not a circumstantial case. There was an eyewitness who gave an account of the appellant’s alleged participation in the offences: the complainant. He gave direct evidence that the appellant fondled his penis and anally raped him. To ask whether it ought to have been inferred from that evidence that the appellant fondled the complainant’s penis and anally raped him is to convert the complainant’s evidence to the status of something other than direct, stand-alone, eye-witness evidence.
The principles stated in Coughlan do not assist because they are concerned with cases where proof of guilt rests on an inference to be drawn from a combination of circumstances. The present trial did not require the trial judge to draw an inference as to the appellant’s guilt. His guilt was proved, or not, according to the judge’s assessment of the evidence of the complainant. The process of testing that evidence by reference to other evidence in the case did not make it a circumstantial case in the sense discussed in Shepherd. The trial judge found the appellant guilty because she accepted the evidence of complainant to the criminal standard. That entailed an acceptance that facts were proved, not the drawing of an inference from other proved facts.
Overview of the case
Before turning to the detail of the appellant’s submissions concerning the individual counts, it is helpful to provide a brief overview of the case.
The complainant grew up in Sydney in the state of New South Wales. He has known the appellant, who is fourteen years his senior, his whole life. They met through the complainant’s uncle, who went to school with the appellant. The appellant maintained contact with the uncle and the complainant over many years and came to be considered a family friend.
At the time the appellant was committed for trial for the present matters, he pleaded guilty to an offence of possession of child abuse material found by police on a USB device at the time of his arrest, some 35 years after the alleged offences. He admitted during cross-examination to having an interest in that material. An application by the Crown to rely on that admission as tendency evidence was rejected by the trial judge because it showed no tendency at the relevant time: Garay (No 3) at [399]. However, the evidence was not excluded as it remained relevant in the context of the appellant’s reliance on his claimed good character: at [675], [791].
The complainant’s parents separated when he was two years of age. He gave evidence that he had no relationship with his father during his childhood. He and his mother first moved into a unit but ended up living with his grandmother, where his uncle also lived. The appellant initially lived close by. The complainant said that the appellant would often visit the family and that the complainant would often visit the appellant to play computer games and learn about photography in a darkroom in the backyard. The complainant said that, through these visits, he and the appellant “struck up a friendship”. The appellant gave evidence in the trial the effect of which was to dispute the frequency of such visits but ultimately there was no dispute that a friendship of sorts developed between the complainant and the appellant.
The complainant gave evidence that the appellant began indecently assaulting him from an early age and that the first indecent assault occurred at the appellant’s address near the grandmother’s house. That evidence was admitted only as evidence of the relationship between the complainant and the appellant. The trial judge noted a concession by the Crown in closing submissions that “this incident could not be proven beyond reasonable doubt, due to questions relating to the timing of the event in relation to the accused’s trip to the United States”. It was rejected as tendency evidence for that reason: at [373]–[379].
At some point the appellant moved to an address further away but still within a short drive of the grandmother’s house. The complainant said that he continued to visit the appellant at the new house, but as it was no longer within walking distance, he had to be driven there. He said the appellant indecently assaulted him several times at that address. That evidence was admitted only as relationship evidence and was rejected as tendency evidence at [380]-[385] and [422].
In February 1986, the appellant moved to Canberra for work. The complainant and the appellant remained in contact. The complainant travelled to Canberra several times during school holidays, staying at the appellant’s house for periods of several days or, as he recalled, up to a week. It was the complainant’s evidence that, on all but one of the nights he stayed with the appellant at the Canberra address, he slept in the appellant’s bed and was indecently or sexually assaulted by him. All of the counts on the indictment were based on acts alleged to have been committed at that address.
The complainant said he always wore his summer pyjama shorts in the appellant’s bed because he was always hot when he slept with the appellant. He attributed this in part to the fact that he usually slept alone whereas, when he stayed at the appellant’s house, they shared a bed and the appellant would cuddle him and rub against him, creating additional body heat. The complainant’s pyjamas were made of a light material similar to the fabric used in T-shirts and went down to halfway between his hip and his knee. They had a slit in the groin area.
As already noted, the appellant gave evidence at the trial. In many respects, his account coincided with that of the complainant. He accepted that the complainant had come to stay with him at the Canberra address and that they had engaged in many of the social activities the complainant had described, such as going to movies, going to “Wonderland” and on one occasion going skiing. He agreed that the complainant had stayed at his house in Canberra several times. The trips he remembered or identified were in August 1986 for three to four days, in November 1986 for two nights and in January 1987 for “three, four, maybe five days”.
The appellant even admitted that the complainant had slept with him in his bed. He thought that had happened on three occasions. He said that, in “the August school holiday” (presumably a reference to the August 1986 visit), the complainant “just turned up” in his room about 10 or 20 minutes after he went to bed. At that time, the complainant was 13 and the appellant was 27. Asked what the circumstances were in which that occurred, the appellant said, “[s]omething – something gave him a reason to come in, and I don’t – can’t put my finger on what it was”. However, he denied that there was any sexual contact between them.
All of the offences are alleged to have been committed “on a date unknown between 28 January 1986 and 5 December 1988”, when the complainant was between 12 and 14 years of age. The start date, 28 January 1986, is around the date the appellant moved to Canberra. The end date is the date the complainant turned 15, by which time it was common ground he had stopped visiting the appellant.
The complainant did not approach police in relation to the offences until 2018, when he was 44. He was unable at that time to specify precise dates when particular offences were alleged to have been committed. For that reason, it was made plain on the prosecution case that the counts on the indictment were not necessarily presented in chronological order.
Count 2: cousin’s 21st birthday
Count 2 was an act of indecency alleged to have been committed on the night of the complainant’s cousin’s 21st birthday party. The effect of the complainant’s evidence was that this was one of the last incidents in time, if not the last. He was uncertain as to the precise chronology. In fact, the evidence at the trial established that the party was held on 24 May 1986, which would make it one of the earlier incidents in Canberra.
The appellant denied that the complainant stayed at his house that night. He said: “I’m thinking he would have stayed with the family that weekend”.
The complainant said that he went to Canberra specifically for his cousin’s party, not to stay with the appellant. He did not want to stay at the appellant’s house that night because he had been subjected to sexual offences by the appellant on previous occasions. However, he thought if he made his concerns known, it would raise suspicion and force him to recount his experiences to his relatives. He said his cousin’s house was full and “it would be strange for me not to go to John’s house”, so he stayed there.
The complainant recalled that others also stayed at the appellant’s place that night. He said that he slept in the appellant’s bed with the appellant. He recalled that a family friend, Mr HL, slept in a sleeping bag in the loungeroom. Mr HL gave evidence and could not recall where he or anyone else stayed (he did not even remember that the party was in Canberra) but the appellant remembered that Mr HL had “definitely” stayed at his place. The complainant also thought that Mr MM might have stayed at the appellant’s that night. Mr MM was not called as a witness but, again, the appellant confirmed that he did stay. The suggestion appears to have been that, because others stayed, it was unlikely that the complainant did. However, as evidenced by count 11 (the surprise party incident discussed below), having other people in the house was not inconsistent with the complainant sleeping in the appellant’s bed. Indeed, on the occasion of count 11, it was the appellant’s explanation for the complainant sleeping in his bed.
The complainant’s older sister gave evidence of a conversation in which it was agreed that the complainant would stay at the appellant’s because there was not much room at the cousin’s house. The complainant’s mother also thought the complainant stayed at the appellant’s place that night along with others, possibly including Mr MM.
The complainant was sure he stayed at the appellant’s place that night. His evidence on that issue (set out in the primary judgment at [248]) is discussed below. He said when it was just him and the appellant in the house the bedroom door would be left open but that if there were other people there, “like when the teacher and the student stayed over” and “on that night of the twenty-first birthday”, it would be closed. As explained below, the reference to the night “the teacher and the student stayed over” was a reference to count 11. Although he recalled that the door was shut on the night of the cousin’s party, the complainant did not think the fact of his sleeping in the appellant’s bed had been hidden from the other people in the house.
The cousin’s party was held at the Ukrainian Club. The complainant recalled that he went straight back to the appellant’s house from there. He was not certain whether the appellant returned at the same time or whether he went out and came back later – he said his evidence on that issue “could be a little bit tainted” because he had recently spoken to his cousin asking for photographs and she had told him, “we went out afterwards as well”. Either way, the complainant said that he went to bed in the appellant’s bed and that they either went to bed together or the appellant came in at a later stage.
In describing the alleged indecent assault, the complainant said:
Um, and – and again, um, it was – it was the same as – as all of the other periods in – in that I – um, the same modus operandi. I was lying on my right side or I may have been laying on my back. Um, if I – you know, I don’t know if I was asleep or awake.
Um, but if I was asleep, I was awoken, um, he pulled my penis out of my – the slit in my pyjama pants, he masturbated me and, um, and I ejaculated, and then again pretended like nothing happened and went back to sleep.
In assessing the language of that description, it is important to understand that, although this is the first count to be described in this judgment (being count 2), it was described by the complainant many hours into his evidence-in-chief statement. The interview began shortly after 9:00am. The complainant’s evidence-in-chief interview went for many hours and involved a change of discs. The discs were changed shortly after midday. During the course of morning before he got to this incident, the complainant had already described many occasions on which the same kind of assault had been committed. It is informative in that context to consider his description of the very first incident he recalled, which was in Sydney before the appellant moved to Canberra:
Q76. Yep.
AUm, I can’t remember its exact position, but it was obviously opposite the lounge. Um, and so John was, um, seated on his - on – on the lounge with his back, um, against the – the left arm of the lounge. Um, so the lounge is against the wall, um, and there’s the left arm, he was seated sort of across the lounge ---
Q77. Yep.
A--- um, with his – with his back and left arm or whatever, um, against the left arm and part of the back of the lounge. Um, and I was sitting in between his legs, um, and my back was on his chest and we were watching TV. I can’t remember what we were watching. I don’t know if it was a movie or TV show or what, um, but we were watching television, and um, at some stage I just – I fell asleep. And I don’t know how long I was asleep for, um, but I woke up and one of John GARAY’s hands were down my pants.
Q78. Mm-hmmm.
A And my – I had an erect penis.
The complainant then described further acts of a similar kind that occurred in similar circumstances at the second Sydney address. He then turned to the incidents alleged to have occurred when he made trips to Canberra after the appellant moved there. He said there was “this one modus operandi that happened over and over again” in Canberra, in which they would sleep in the same bed and he would actually be asleep or be pretending or trying to be asleep and the appellant would remove his penis from the slit in his pyjamas, play with it until it became erect and masturbate the complainant until he “ejaculated” (without emitting any ejaculate). His description of count 2 came towards the end of the interview, after he had described that modus operandi.
Appellant’s submissions as to count 2
The appellant sought to impugn the trial judge’s finding of guilt for count 2 on two grounds. First, it was submitted that it could not be concluded beyond reasonable doubt that the complainant even stayed at the appellant’s house that evening. The appellant noted, correctly, that this was an indispensable intermediate finding of fact to a finding of guilt on that count.
The trial judge did make that finding at [833]. Based on my reading of the evidence summarised above, I am satisfied that the finding was well open.
In his evidence at the trial, the accused claimed to be certain that the complainant did not stay at his house that night. However, when police first attended his house and executed a search warrant, he said he could not recall whether the complainant stayed at his house on that occasion. His dogmatic position at the trial was plainly undermined by that earlier answer. No other witness contradicted the complainant’s evidence; in the main, they supported it. It was plainly open to the trial judge to accept the complainant’s evidence on that issue.
The second point, which was common to counts 2, 11 and 12, was that the trial judge should not have found a case to answer on those counts because each was “infected by latent ambiguity”. The contention was that the complainant’s evidence on each count was “not based on a recollection of a specific incident, but on an assumption that ‘the usual modus operandi’ had happened, on or following an event the complainant could remember” (emphasis in original). For the reasons expanded upon below, I do not accept that the complainant’s evidence was not based on recollection. That issue is addressed in relation to all three counts below.
Counts 11 and 12: complainant’s surprise birthday party
Count 11, also an act of indecency, was alleged to have been committed when the complainant was visiting the appellant in Canberra on a date close to the complainant’s birthday. That appears to have been earlier in time than the cousin’s 21st birthday. Unassisted by any records (as I will explain, deliberately so), the complainant placed that trip as having occurred when he was between Year 5 and Year 7 at school. He found photographs of the event which he provided to police.
The appellant accepted that there was such a trip. By reference to contemporaneous documents (his diary and a letter he had received), he thought it was in November 1986, which would place it shortly before the complainant’s 13th birthday (5 December 1986).
The complainant remembers catching the train to Canberra and being collected from the railway station by the appellant in his Volvo. They arrived at the appellant’s house where the complainant dropped his bag in the kitchen and entered the dining room to find a surprise birthday party for him. It was a small gathering. Other people present included a woman, who was a friend of both the appellant and the complainant’s cousin, and two friends of the appellant, whom the complainant described as a man “about John’s age” and a boy who was about 16 or 17. The complainant remembered the boy telling him that he was a student and that the older man was his teacher. He also recalled the older man saying that he was the boy’s teacher.
The complainant said he stayed with the appellant for about a week on that occasion. He thought the two male visitors stayed one or two nights. He said it could have been during that week that the appellant took him to see the Kiss of the Spider Woman, but he was not sure. Count 1 on the indictment was based on an allegation of indecent assault the night they saw that movie. He gave a plausible description of that outing including recalling his feelings of confusion about being taken to see such a movie by the appellant. The defence case was that there was uncertainty as to that count based on a consideration of the dates on which the film was showing in Canberra and the absence of any clear evidence that the complainant stayed overnight with the appellant on any of those dates. The trial judge found the appellant not guilty of count 1.
Returning to count 11, the complainant remembers the woman leaving the appellant’s house after the party while the two men remained. They slept in the spare room while the appellant and the complainant slept in the appellant’s bedroom.
The complainant said he went to bed with the appellant in the appellant’s bed. He described what followed in the following terms:
Um, and the same thing happened that night, um, the same modus operandi. I, um, went to – went to bed and ah, slept on – on the left side, John was on the right side. Um, I was either on my right side or on my – on my back. Um, I was either asleep or falling – in the process of falling asleep. Um, um, he either awoke me or I pretended to remain asleep. He pulled my penis out of the – the slit in my pants, um, he fiddled with it until it was erect. Um, he lubricated it with something wet and masturbated me until I ejaculated, yeah.
As with count 2, in assessing the language of that description, it is important to recall that this incident was being described by the complainant well into a lengthy interview in which he set out to describe as many incidents as he could recall.
Count 12 was based on an allegation of a further act of indecency alleged to have been committed the following night. The complainant remembered certain specific details about that day. For example, he remembered that, at some point during the day, the “student” became upset because the complainant teased him for wearing an all-white outfit, suggesting that he looked like a cricketer. The complainant also recalled the teacher and the student staying overnight at the appellant’s house for a second night.
The complainant said that, on the second night, the appellant performed an act of indecency in the same way as had become usual; he reached into the complainant’s pyjama pants, extracted his penis and masturbated it until ejaculation. The complainant said he then fell back to sleep and that the appellant would have either done the same or left the room for a brief period.
Appellant’s submissions as to counts 11 and 12
The appellant made two substantive points in relation to counts 11 and 12. First, as with count 2, he relies on the uncertainty argument, which is addressed below.
Secondly, he submitted that “an issue” with respect to both counts was “the presence of the two other men in the appellant’s house at the time of the alleged offences”. The issue concerned the complainant’s evidence that he remembered the boy telling him that he was a student and that the older man was his teacher. The complainant remembered the older man also saying that he was the boy’s teacher.
Those two men are depicted in photographs which the appellant accepts were taken on the night of a surprise party he arranged for complainant. In his evidence at the trial, the appellant identified the men by name. He said that the older man was not a teacher and the younger man was not a student.
At the trial, the appellant used this issue to attack the credit of the police officer in charge of the investigation because the officer accepted that he had interviewed the older man but had not asked him if he was ever a teacher.
The appellant also relied on the fact that neither man was called to give evidence. He submitted that the failure to call either man is “troubling”. It was contended that, on the account of both the complainant and the appellant, they were “material witnesses”. As to the older man, who was interviewed by the informant, it was submitted that it could be inferred from the failure to call him that he would not have assisted the Crown case.
The submission mistakes the evidence. The complainant did not, and could not, give evidence as to the actual occupations of those men. He was simply recounting what he recalled being told by them. Proof that neither visitor to the house was a teacher or a student does not disprove the complainant’s evidence as to what he was told. Nor was the complainant’s evidence on that issue inherently implausible. After describing the boy as “[c]aucasian, skinny, blondish-type hair”, he said:
Um, and I can remember the man telling me that – that he was a teacher and that the – the young – the younger person told me that he was a student and that the – that the teacher, um, was his teacher.
The photograph of the surprise party depicting the two men shows that the younger man looked considerably younger than the older man. It is not inherently implausible that they might have offered an account of their relationship, whether intended seriously or in jest, to a nearly-thirteen-year-old boy.
In any event, it is important to be precise as to what was and was not in issue in respect of count 11. The appellant agreed that there was a surprise party and that the two men stayed that night. He gave sworn evidence that the complainant slept in his bed that night. The central issue at the trial concerning count 11 was whether, while the appellant and the complainant were admittedly in the appellant’s bed together, the appellant indecently assaulted the complainant. Whether another man and youth who it is accepted slept together in a different bed in the same house on the same night described themselves to the complainant as teacher and student (words not asserted to have been said in the presence of the appellant) was irrelevant to the proof of the elements of the offence. If it was relevant to the complainant’s credit, it was barely so.
Had either of the men been called as a witness, the highest their evidence could have taken the matter favourably to the appellant is that they might have denied telling the complainant that they were teacher and student and denied staying a second night. Neither point would be sufficient to create a doubt as to the complainant’s evidence concerning the indecent assaults he described.
The complainant had a recollection of the second night. He recalled the teasing of the younger man. He also recalled the detail that, on that occasion, it did not take him long to ejaculate.
There is no reason to doubt that evidence. The complainant’s evidence in relation to counts 11 and 12 provides an example of the care he took to specify when he was relying on his own recollection and when he was not (a matter considered further below). It was common ground that the appellant was a keen photographer. The complainant remembered the appellant taking photographs at the surprise party and he remembered being given photographs by the appellant (presumably at a later point — there was detailed evidence as to the appellant’s practice in relation to having photographs developed in those days).
In his evidence-in-chief interview with the Australian Federal Police, the complainant explained that he had previously told NSW police that he did not know where those photographs were. He thought they were “gone”. However, he had later searched his mother’s house and, to his “utmost surprise”, found the photographs. By the time he gave his evidence-in-chief interview for the present matters to the AFP, the complainant had refreshed his memory by looking at the photographs. He was careful to explain that, before doing so, he could not recall who was at the surprise party but that the photographs had reminded him (or enabled him to work out) that the people at the party who stayed at the appellant’s house at that time were the people he knew as the teacher and the student.
Uncertainty
Alleged uncertainty or ambiguity was the central challenge to the findings of guilt on counts 2, 11 and 12. The appellant submitted that the complainant’s version of events was “formulaic” and that those counts were “accordingly uncertain”. It was submitted for that reason, considered together with the complaints that there was a lack of corroborating evidence and that material witnesses were not called, that it was not open to the trial judge to be satisfied beyond reasonable doubt of those counts.
I have already considered the complaint that material witnesses were not called. As to the lack of corroborating evidence, there were issues on which the complainant’s evidence found support in the evidence of other witnesses, including the appellant.
It may be accepted that there was no evidence to corroborate the complainant’s evidence as to the central issues in the trial, the elements of the offences. It is over 10 years since the requirement for corroboration of the evidence of complainants in sexual assault cases was abolished in the Australian Capital Territory: s 164 of the Evidence Act 2011 (ACT) commenced on 1 March 2012. For almost four years, trial judges have been forbidden from directing juries otherwise: s 80 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) commenced on 5 December 2018. Other jurisdictions have had similar provisions for considerably longer.
The effect of those amendments was to recognise (if a statute were needed for this purpose) that the sworn account of a person who claims personally to have experienced a sexual assault is capable, without more, of proving the assault beyond reasonable doubt. The perception that such an account is not adequately probative (or worse, inherently unreliable) and requires independent corroboration appears nevertheless to remain deeply embedded in the public psyche. To give effect to that perception in criminal proceedings for sexual assault at any level of the court hierarchy is wrong for several reasons. It perpetuates stereotypes and preconceptions in a legal system that claims impartiality as its hallmark. It subverts the legislative amendments to which I have referred. It puts complainants in sexual assault cases in a different class from the alleged victims of other kinds of offences and, in that way, suffers incoherence in the rule of law.
Turning to the central issue, the complaint of uncertainty, the appellant relied on the principles considered in the decision of the High Court in Johnson v Miller [1937] HCA 77; 59 CLR 467, particularly the remarks of Dixon J at 489, and the reiteration of those principles in the context of sexual offences in the decision of the High Court in Sv The Queen [1989] HCA 66; 168 CLR 266.
I do not think the present case falls foul of the principles established in those cases. Johnson v Miller was a liquor licensing prosecution in which the offence charged was that the defendant was the licensee of licensed premises out of which “a certain person” was seen coming during a Sunday. It had been disclosed in advance of the hearing that the evidence would establish that, indeed, many persons were seen coming out of the premises that day. The informant refused to specify a particular person relied upon to prove the charge. It was clear enough that the informant was in a position to specify one or other of the many persons seen leaving the premises that day as the “unknown person” whose presence on the premises was relied upon to support the charge. However, the informant took the view that “the complaint was adequate and that he was entitled to support the charge by any instance of the offence he was able to prove”. In other words, it was sought to prove many offences over which the prosecution case would float, the contention being that it could crystalise on any one or other offence at the conclusion of the evidence.
The charge was dismissed by the magistrate as defective. The High Court held that the Magistrate was right to dismiss the charge because, while the complaint was not defective on its face, the facts relied upon by the informant (that many persons left the premises during the period specified) disclosed a latent ambiguity in the complaint.
The principle that emerged from that decision is that “a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”: at 489.
That principle was applied in the context of sexual offences in Sv The Queen. That was an incest case in which the complainant gave evidence that she had been sexually assaulted by her father many times over several years. She said she could not remember the details because she had “blanked them out”. The accused was arraigned on an indictment containing three counts of incest, one in each of three separate periods. As in Johnson v Miller, the prosecutor refused to provide particulars of the precise conduct to which each count in the indictment related. The complainant’s evidence was in general terms. No particular act committed at a particular time and place was described. Instead, as in Johnson v Miller, the prosecution sought instead to present a floating case involving the proof of many offences, any one of which might crystalise into a finding of guilt at the conclusion of the evidence. The Court held that the prosecution was fundamentally flawed as the requirement for certainty was not met: at 278 (Dawson J), 283 (Toohey J), 287 (Gaudron and McHugh JJ).
The appellant also relied on the decision of the Victorian Court of Appeal in R v SLJ [2010] VSCA 16; 24 VR 372. That was a case in which the complainant gave generic evidence as to what the accused “would” do, without specifying any particular incident. The Court said at [17]:
In our view – and as senior counsel for the Crown conceded – this evidence was not capable of supporting such a conclusion. As is apparent from the complainant’s repeated references to what the accused ‘would’ do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.
The appellant submitted that the evidence in the present case suffered from the same difficulty and also has “some resonance” with Sv The Queen. I do not think the comparison is apt. The difficulty in each case was that offences as described could have been committed on any one of many occasions, leaving the defendant unable, due to that ambiguity or uncertainty, to know the occasion as to which he might raise a defence. The prosecution case against the appellant was decidedly not presented in that way. On the contrary, mindful of that very requirement, the complainant went to some lengths to specify particular incidents of sexual offending. It was not a case where the indictment suffered latent ambiguity. It was not a case in which generic evidence of many offences was relied upon to support a particular charge. Precise particulars of each individual offence were given. Each count was sought to be proved by specific evidence relating to that count as particularised. The appellant knew the case against him and was able to defend specific allegations made by the complainant, such as in the case of the “Kiss of the Spider Woman count” where the Crown could not exclude a reasonable doubt as to whether the showing of that film coincided with a night on which the complainant was staying with the appellant. That is reflected in the several findings of not guilty.
It is relevant in that context to note something about the way in which the complainant approached the task of making his statement. As already noted, he was 44 when he went to police. By then, he had qualified and worked first as a police officer and then as a solicitor. During the recording of his evidence-in-chief, he referred to his prior occupations and said he was aware of “what it takes to prove these sorts of offences”. He said he was being “ultra-conservative” in giving police a description of one incident that happened at the second Sydney address, even though he said there were other offences committed at that address. He repeatedly made remarks to the effect that he was being careful to distinguish between what he actually recalled and what he could only guess or had learned from another source. In the portion of the interview to which I have referred, he concluded, “so I can lock down that one, ah, offence definitely”.
Shortly after that, still in the opening portion of the interview, he said:
So I’m going to describe some events that – that happened while – um, when I visited John in Canberra and – but I just want to – to say from the outset that as with the Sydney offences, um, lots of offences – every night that I was at his Canberra address … I slept in his bed with him and he, um, conducted unlawful sexual, um, sexual assaults against me … with the exception of one occasion. Um, but I’m only going to relay the ones to you that I can actually remember where – that I can link to circumstances, that there are – I can actually say that, um, a hundred percent, um, you know, on this day, um, like, you know, something happened and then this happened.
The appellant made the broad submission that, in the result, the complainant’s evidence of each indecent assault followed “a remarkably similar formula” which was “to recall specific events, such as trips to the movies, trips away, birthdays, visits to restaurants, etc, then to assert he stayed at the appellant’s house on each of the dates of these specific events, and that every night he stayed the same thing would happen, being an act of indecency”. The appellant contended that the evidence was “invariably” what the complainant said the appellant “would have done”. It was submitted on that basis that the complainant was “seeking to convey, based on his assertion that the accused always engaged in ‘the usual modus operandi’ on each occasion, the indecent activities must have happened on each occasion” (emphasis in original) and that he “was not claiming to remember that such an act actually occurred”.
It follows that the appeal must be allowed and the matter returned to the Supreme Court for, at the option of the Director of Public Prosecutions, a re-hearing. I propose orders to this effect.
Collier J:
I have read in draft the judgments of the Chief Justice and Elkaim J, and am very grateful for the opportunity to do so.
For the reasons given by the Chief Justice, the appeal should be dismissed.
| I certify that the preceding two hundred and fifteen [215] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 27 January 2023 |
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