Gary Boyer (a pseudonym)[1] v The Queen
[2015] VSCA 242
•11 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0285
S APCR 2014 0286
| GARY BOYER (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | PRIEST, KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 August 2015 |
| DATE OF JUDGMENT: | 11 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 242 |
| JUDGMENT APPEALED FROM: | DPP v [Boyer] (Unreported, County Court of Victoria, 21 July 2014 and 12 August 2014 (conviction); 28 November 2014 (sentence)) |
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CRIMINAL LAW — Appeals — Conviction — Appellant convicted of sexual offending occurring in the 1980s — Two indictments involving two complainants — Separate trials —On first indictment whether the judge erred in refusing to give unreliable witness warning pursuant to s 165 of the Evidence Act 2008 — Whether the jury’s verdict is unsafe and unsatisfactory — On second indictment whether the judge erred by admitting evidence previous representations pursuant to s 66 of the Evidence Act 2008 — Whether occurrence of asserted fact ‘fresh in the memory’ when previous representations made —Whether the evidence of previous representations should have been excluded under s 137 of the Evidence Act 2008 —Appeals allowed.
CRIMINAL LAW — Appeal — Convictions quashed — Whether re-trial or acquittal appropriate — New trial ordered on one indictment, acquittal on the other.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Victorian Aboriginal Legal Service |
| For the Crown | Mr D A Trapnell QC with Ms S A Flynn | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Throughout 2014, the applicant stood trial in the County Court on two indictments.
The first indictment,[2] alleged incest and indecent assault, involving his biological daughter, ‘DM’, between 1 January 1980 and 31 December 1980.
[2]Indictment D11604418A.
A second indictment,[3] charged the applicant with a single instance of indecent assault on ‘JP’ — who was the son of the applicant’s then partner — in a two year period between 2 July 1983 and 7 July 1985.
[3]Indictment D11604418B.
In circumstances I will later set out, the applicant was found guilty by juries empanelled to try him. Following a plea, on 28 November 2014 the trial judge sentenced the applicant to be imprisoned respectively for six years and 18 months for the offences of incest and indecent assault on the first indictment, and for 30 months for the offence of indecent assault on the second indictment. With an order for partial cumulation, the judge imposed a total effective sentence of seven years’ imprisonment, upon which a non-parole period of five years was fixed.
The applicant has sought leave to appeal against conviction and sentence on both indictments.
In my opinion, leave to appeal should be granted with respect to the convictions on both indictments, the appeals allowed and the convictions quashed. Those conclusions make it unnecessary to consider the applications touching sentence.
Convictions on the first indictment
On the first indictment, which related to DM, ultimately the applicant relied on two grounds as follows:
1. The learned Judge erred when she ruled that she would not give an unreliable witness warning pursuant to section 165 of the Evidence Act 2008 in relation to the complainant.
2. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence; in particular, due to:
(i) the inconsistencies between the version given by the complainant, and the version given by the witness McQueenie, as to all aspects of the complainant’s access visit; and
(ii) the internal inconsistencies in the evidence of the complainant as to all of the circumstances of the alleged sexual assault, and the aftermath.
There were two trials held in relation to the charges of incest and indecent assault involving DM. In the first of those trials, the jury were unable to reach a verdict. For the purposes of the second trial, the judge ordered that the evidence of DM, and other prosecution witnesses, be led by playing their evidence recorded during the first trial.
Since the second ground of appeal asserts in effect that the verdicts are unsafe and unsatisfactory, it is necessary to set out the evidence in moderate detail.
The evidence at trial
DM is the applicant’s daughter. She was born on 29 June 1968. In 1976 she was taken into state care and lived at Marillac House. The prosecution case was that between 1 January 1980 and 31 December 1980 — when DM was aged about 12 years — the applicant offended sexually against her when, as part of an access visit, she stayed at the house which he shared with his then partner, Lynette McQueenie, and her three sons. It should be observed, however, that, despite the prosecution alleging that these activities took place when DM was aged 12 years, during a VARE[4] statement to police on 25 January 2011, DM said that she ‘would’ve been six’. She had, she said, ‘looked it up’ on her ‘files’. Later, she gave answers to police which indicated that the offending occurred in 1975 or 1976, when she was aged about eight years.[5]
[4]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367.
[5]At the relevant time, it was an element of the offence of incest that the victim be of or above the age of ten years. Section 52(1) of the Crimes Act 1958 provided that whosoever ‘unlawfully and carnally knows a woman or girl of or above the age of ten years such woman or girl being to his knowledge his daughter or other lineal descendant or his step-daughter’, was guilty of an offence. Charge 1 on the indictment was that the applicant ‘between the 1st day of January 1980 and the 31st day of December 1980 did unlawfully and carnally know [DM] a girl of or above the age of 10 years being to his knowledge his daughter’.
In her VARE statement — which became part of DM’s evidence at trial — DM said that the applicant picked her up from Marillac House in Brighton at about 12:00 pm on a Friday, and took her back to his house in North Fitzroy. He there took her to the bedroom she would be staying in and they had lunch. The applicant then started drinking beer non-stop, drinking ‘can after can’. They went to a ‘pub’ in North Fitzroy and came back with two slabs of beer. It got quite late so DM put herself to bed.
On Saturday, DM got up and had breakfast. When it got close to lunchtime, Ms McQueenie was doing housework. After lunch, the applicant — who had been drinking heavily — digitally penetrated her vagina (charge 2 — indecent assault) and then inserted his penis into her vagina (charge 1 — incest) whilst they were in the lounge room. DM said that the applicant was standing and had a can in his hand. He put it down, and undid his belt and jeans. The applicant then pulled down her underpants and had sex with her. Later, DM explained that the applicant undid his jeans and pulled them down. He pulled out his penis and pulled down DM’s pants and ‘put it up inside’ her. The applicant used his hand and then somehow got it up. DM was standing and wearing a dress. The applicant had got her on the floor and put his penis inside her vagina. He used his hand ‘to find the hole’. The applicant grabbed DM’s arm when she was standing and put her on the floor. He had put his penis and his fingers in her vagina while she was lying on the ground. It was hurting and she was in ‘a bit of pain’. She ‘grabbed it out’, pulled her pants up and ran out the door. DM was bleeding afterwards.
DM did not know how long the assault took. Ms McQueenie was in the laundry when it happened. It was a warm day. On Friday, the applicant was wearing jeans and a short sleeved shirt, but on Saturday he had changed into his blue tracksuit which he wore with a white top. DM said that she wanted to run away, and get as far away from the applicant as possible. She ‘ran and ran’. DM did not know where she ran to, but she was gone for some time. Although she did not want to, DM ended up returning to the applicant’s house. She told him and Ms McQueenie that she wanted to go back to Marillac House. By that time it was too late, however, so she waited until Sunday. Only she, the applicant and Ms McQueenie were present when she returned to Marillac House.
In cross-examination, DM gave evidence that she could not say for sure whether it was a Friday when she left Marillac House. She said that Ms McQueenie was with the applicant when he picked her up; and, in fact, it was Ms McQueenie who was driving, not the applicant. DM arrived at the house after lunch, but she cannot remember what happened after that. On the day she arrived at the applicant’s house, she watched TV and then had dinner with the applicant, Ms McQueenie and two boys. She could not remember who the boys were, but they were at the house the whole time she was there.
DM said that the next day she played at the front of the house with the two boys. It was this day, after lunch in the afternoon, that the applicant hurt her in the lounge room. Ms McQueenie was in the kitchen when it happened, not the laundry. DM had been in the lounge room for a long time, watching TV. The applicant had been in the lounge room for ‘an hour or two, and he had a can of beer in his hand’. Nobody else came into the lounge room during that time. It was after lunch when it happened, at about 2:00pm. DM said that the applicant ‘got hold of [her] arm and pulled [her] down’, and then ‘put his penis inside’ her. That was all he did. The applicant had ‘tried to do it standing up but then got [her] down on the floor’. He did not put his penis in her while she was standing up. The applicant’s penis was inside DM for ‘about ten minutes’. DM used her hand to pull the applicant’s penis out. At the time she was on the floor and the applicant ‘was on his knees on the floor’. The applicant had pulled his jeans and underpants down to his knees and was sitting on his knees. Both his hands were on her stomach. Her hands were free so she was able to remove his penis. DM had her hands ‘on his arms trying to get him off’. She pulled his penis out and used her hands to push his stomach and he fell onto the floor. DM said that she pulled her pants back up and ‘ran out the [front] door’. Eventually she returned to the house and went straight into her bedroom. It was still daylight, and Ms McQueenie and the applicant were there.
DM gave evidence that when she returned to the applicant’s house she was bleeding, but ‘only a little bit of blood’. When she got back to Marillac House ‘the blood wouldn’t stop’, and she had to use tissues ‘to make the blood stop’. She had been bleeding in the car on the way, and she ‘had put a towel on the seat’. When DM got out of the car there were ‘about two cupfuls’ of blood on the towel.
In re-examination DM said that she had not previously had a period. She ‘didn’t know where the blood was coming from’. The ‘bleeding stopped a few days after’.
Lynette McQueenie met the applicant in 1979 or 1980, and they began living together in 1980. In April of that year they moved to 44 Annand Street, North Fitzroy.
Ms McQueenie was not sure how many times she brought DM back to the house, but it was more than three times. The last time DM came to stay with them she was about ten years old. Ms McQueenie said that she presumed she had collected DM on the Saturday. They probably got home at 3:00pm. Ms McQueenie went across the road to her neighbour’s house for about three quarters of an hour or so. When she left, DM was watching TV. DM remained at the house with the applicant whilst she visited her neighbour. When Ms McQueenie got back, the applicant was drunk. He had been drinking in the lounge room and kitchen. At that stage, DM was in her bedroom and would not come out. DM was upset and crying at teatime, saying, ‘I want to go back’. The next morning, Sunday, DM made it clear that she did not want to come back. That was the last time that DM visited.
Importantly, Ms McQueenie did not recall ever taking DM back to Marillac House when she was bleeding, and did not recall DM ever bleeding at her premises. Ms McQueenie had never put a towel down in the car, and the last time she took DM back to Marillac House she did not observe any blood in the car.
In her evidence, Ms McQueenie described the house she shared with the applicant. If she were in the kitchen she would not be able to see the applicant and DM in the lounge room.
Ms McQueenie said that the applicant would drink ouzo. He would bring home a slab of beer which he used to buy from a hotel in Fitzroy. The applicant was never without beer, and drank all the time. He would have been drinking on the weekend DM visited.
In cross-examination, Ms McQueenie agreed that in her statement to police she had said that DM only came to visit two or three times, and that she had never seen her upset. Her evidence at the committal hearing included that she had seen DM upset but had thought it was just because she wanted to go back to the convent.
Julie O’Connor is DM’s half-sister. They have the same mother. Ms O’Connor was taken into state care when aged eight years, and remained in care until aged 15. Thereafter she lived with her mother in Richmond. In 1982 they moved to Broadmeadows. DM, who was then about 12 years old, would frequently come home on weekends. On one such occasion DM said that the applicant had interfered with her, but did not indicate exactly what had happened. Ms O’Connor told their mother that DM had been interfered with. Their mother went to Marillac House and spoke to one of the nuns. It was a couple of weeks until they next saw DM. Following that, DM did not return home for several years.
Julie Roberts gave evidence that between 1980 and 1982 she was employed as a welfare officer at the Department of Human Services. She oversaw the welfare of DM who was then 11 or 12 years of age. DM was a fairly ‘low functioning’ child. She was not doing well at school and was not well socialised. DM was consistent in saying that she did not want to have contact with her father, whereas she was very enthusiastic about spending time with her mother and her sisters. Ms Roberts ceased involvement with DM when DM’s mother moved into a new region and a new case worker took over.
June Pledger lived in Annand Street, North Fitzroy, when, in early 1980, Ms McQueenie and the applicant moved next door to her. Between 1980 and 1983, she met the applicant’s daughter, DM, about three times. DM was only there on weekends. She would be playing with the other children or drawing pictures, and always looked happy. Ms Pledger went next door many times because she and Ms McQueenie had afternoon tea nearly every day. She did not see the applicant consume alcohol. Ms Pledger described the layout of the house, and said that from the front door one could see straight down into the lounge room. She gave evidence that Ms McQueenie and the applicant had a small beige car which Ms McQueenie used to drive. She did not see the applicant drive it.
Duane Luke Hagger, a Detective Senior Constable of police, had the conduct of the investigation in relation to DM’s allegations. He travelled to Queensland, where the applicant was residing, and conducted an interview with him. DM had told him that the incident occurred in 1976. During the investigation he had access to documents which formed part of the Department of Human Services records. A ‘transfer summary’, dated 3 October 1980, recorded that DM became a ward of the state on 13 March 1976. It also recorded that, ‘[DM] has consistently expressed that she wants no further contact with her father since her last weekend visit there in early July’.
Police conducted a record of interview in Queensland on 10 March 2011. The applicant stated that when DM was in primary school she had been in state care. When he lived in Fitzroy, and while DM was in state care, she had visited him. DM did not visit regularly, it was only ‘once in a blue moon’ that they went to pick her up. Ms McQueenie drove. They took DM back to the house, where she probably only stayed weekends. The applicant told police that DM ‘would’ve slept out in the lounge room’ on a couch. They would return DM on Sunday. The applicant said that he was never alone with DM. He drank scotch and coke or ouzo and coke. Occasionally he drank ‘VB’ beer. He would not drink when DM was there because he was ‘trying to straighten [his] life out’. The applicant said that he used to go to the pub, but not ‘during these weekend visits’ with DM, because Ms McQueenie ‘would’ve kicked [him] out’. He was never drunk around DM. When they were put to him, the applicant rejected DM’s allegations.
No evidence was called for the defence at trial, the applicant relying substantially on his denials in the record of interview.
Failure to give an unreliable witness warning
At the time that the trial was conducted, s 165 of the Evidence Act 2008 (‘the Act’) governed jury warnings with respect to unreliable evidence.[6] So far as is relevant, s 165 provided:[7]
[6]See now, Jury Directions Act 2015, ss 31(b) and 32.
[7]Emphasis added.
165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—
…
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
…
(2) If there is a jury and a party so requests, the judge is to—
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).
As I have mentioned, the jury at the first trial involving DM was unable to agree on a verdict. Importantly, in her charge given in that trial, the judge had, consistently with s 165, given an unreliable witness warning with respect to DM. Regrettably, however, the judge declined to give such a warning at the subsequent trial, which led to the applicant’s conviction.
At the close of evidence in the first trial, counsel for the applicant had sought a warning under s 165 of the Act. The prosecutor accepted that DM was ‘cognitively impaired’ or ‘intellectually disabled’, and that it was appropriate that an unreliable witness warning be given. The trial judge resolved to give the warning. In an informal ruling, her Honour said:
The law is very clear in that I cannot give a direction because of the age of the complainant at the time, but [s 165] is very flexible to take into account each case, and what I intended was a direction … [It] is really a combination of factors that were mentioned, which is the cognitive disability now and at the time; the age of the complainant at the time, and I think importantly a part of that combination is the time, the fact that it’s 30 or so years ago.
So that seems to me to be the combination that is relevant to [s 165(1)(c)], ‘Evidence, the reliability of which may ... (reads) ... or mental, injury or the like.’ It’s her cognitive disability in the context — and I'll perhaps put them altogether — of the perception of a child, and she’s now going back 34 years with her cognitive disability. So it’s a combination of the three that I consider renders such a direction necessary.
It wasn’t in issue at the Bar table, but I thought it was appropriate that I indicate the basis of why I’m doing that. …
It will be seen that three factors in combination moved the judge to give a direction under s 165: first, the complainant’s ‘cognitive disability’ (the existence of which was not disputed); secondly, DM’s age at the time of the critical events; and, thirdly, the fact that the complainant, against the backdrop of her cognitive disability, was being asked to recount events that occurred over 30 years ago.
Nothing in the evidence had changed by the time of the second trial of the charges relating to DM. Indeed, the evidence at the later trial was, as I have said, led by playing the recorded evidence from the earlier trial. The only material change in the circumstances that obtained at the first trial was that a new prosecutor had been briefed.
Shortly before the judge’s charge was to be delivered in the second trial, the prosecutor sought to persuade the trial judge that — despite the fact one had been given in the previous trial — an unreliable witness warning should not be given. A fair reading of the transcript reveals that the judge was initially attracted to the notion that such a warning should be given, but ultimately was persuaded by the prosecutor not to do so. In my view, the warning indeed should have been given, and a substantial miscarriage of justice has flown from the judge’s failure to do so.
I need not rehearse her Honour’s ruling in detail. She observed that there is ‘no dispute’ that DM ‘was cognitively impaired at the time of the alleged incident, and that has continued until the present’. Her Honour noted that the defence position was that the need for a direction arose because of DM’s ‘age at the time, importantly in the context of the long passage of time, and her cognitive disability’. Having had regard to Allen,[8] the judge thought that ‘it is not for the judge to determine whether the evidence is in fact unreliable’, since to do so ‘would be to usurp the role of the jury’. Ultimately, her Honour thought it ‘unnecessary’ to give a warning, and that there was ‘good reason’ not to do so.
[8]Allen (a pseudonym) v The Queen (2013) 39 VR 629 (Redlich and Coghlan JJA, and T Forrest AJA) (‘Allen’).
As was noted in Allen, there is an unresolved division of judicial opinion concerning the application of s 165. Thus in Clark,[9] the Court was of the view that the issue is not limited to whether the witness falls within one of the categories specified in sub-s (1)(a) to (g), but whether the evidence which the witness gave was of a kind that may be unreliable. In other words, the opening words of s 165(1) should be viewed as qualifying each of the categories spelt out in sub-s (1).[10] In a similar vein, in Lane[11] it was observed that the reference in s 165 is to a kind — or class — of evidence, which requires a ‘generalised assessment and not one based on a particular witness’s account in the proceedings’.[12]
[9]R v Clark (2001) 123 A Crim R 506.
[10]Ibid 548 [70] (Heydon JA, Dowd and Bell JJ concurring).
[11]Lane v The Queen (1996) 66 FCR 144.
[12]Ibid 146 (Gallop, Davies and Kiefel JJ).
An alternative view is that the words evidence of a kind that may be unreliable require more than that a witness falls within one of the enumerated categories in s 165(1). A trial judge must come to a view that the actual evidence given is, or may potentially be, unreliable. This requires a less literal and more restrictive approach to the language of s 165, and imposes a requirement that the judge analyse the actual evidence.[13]
[13]See R v Flood [1999] NSWCCA 198, [16]–[19] (Spigelman CJ), [52] (Smart AJ); R v Fowler (2003) 151 A Crim R 166, 204 [186] (Tobias JA, James and Howie JJ); R v Harbulot [2003] NSWCCA 141, [116] (Smart AJ).
I incline to the view expressed in Lane, that in order for a warning under s 165 to be attracted, it is enough — subject to s 165(3) — that the evidence may be of a kind or class of evidence that may be unreliable, without there being a necessity to make any assessment of the account of the particular witness.
In the circumstances of this case, however, I need not express a final preference for one view over another,[14] since there was ample material which dictated that an unreliable witness warning should have been given.
[14]See also Allen, 639 [37].
It had been accepted in the first trial that DM’s evidence was ‘evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like’. The prosecution had agreed that DM laboured under a cognitive impairment (or intellectual disability). Moreover, the judge had determined that, having regard to DM’s cognitive ‘disability’; DM’s age at the time of the alleged offending (whether she be six, eight or 12 years of age); and the difficulty, in light of her impairment, of DM recounting events which occurred 30 years or more previously; she needed to give a warning under s 165. As I have said, nothing had changed.
In my view, the concatenation of the three factors earlier identified by the judge was still operative, so that DM’s evidence should have been considered to be ‘of a kind that may be unreliable’ since its ‘reliability’ may have been affected by the three identified factors in combination. A warning was required, and should have been given. By virtue of s 165(3), the judge should have:
· warned the jury that DM’s evidence may be unreliable;
· informed the jury of the three identified factors which in combination may cause it to be unreliable; and
· warned the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
It is impossible to say that, absent the warning, conviction was inevitable.[15]
[15]Baini v The Queen (2012) 246 CLR 469 (French CJ, Hayne, Crennan Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659 (Maxwell P, Weinberg and Priest JJA).
There has been a substantial miscarriage of justice. The convictions for incest and indecent assault on the first indictment must be set aside.
The verdict is not unsafe and unsatisfactory
Ground 2 asserts that, as a result of certain inconsistencies between DM’s and other evidence, the verdicts of the jury are ‘unreasonable or cannot be supported having regard to the evidence’.
In my view, ground 2 must fail.
When a ground of appeal claims that a verdict is unsafe and unsatisfactory, in accordance with M[16] the appellate court must ask itself: was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?[17] In determining whether it was open to the jury to be satisfied of guilt, the court must carry out its own independent assessment of the evidence. And in determining whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the crucial inquiry is whether the jury must, as distinct from might, have entertained a doubt about the accused’s guilt.[18] It is insufficient merely to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[19]
[16]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).
[17]Ibid 493.
[18]Ibid 492-3; Libke v The Queen (2007) 230 CLR 559, 556–7 [113] (Hayne J).
[19]See also Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 276–7 [82]–[83] (Redlich, Osborn and Priest JJA).
I am of the view that, although the jury might have acquitted the applicant on the evidence in the case, there was no evidence which compelled that result.
As I understood the way in which counsel for the applicant put her submissions, she relied principally on seven factors to establish that the verdicts were unsafe and unsatisfactory:
· first, there were said to be internal inconsistencies in the various accounts that DM had given;
· secondly, DM’s evidence concerning the manner and circumstances of the sexual activity was implausible;
· thirdly, for the reasons already identified, DM’s evidence was unreliable;
· fourthly, there had been considerable delay, and resulting forensic disadvantage;
· fifthly, there were important inconsistencies between DM’s evidence and that of Ms McQueenie;
· sixthly, Ms McQueenie herself was neither a credible nor reliable witness; and
· seventhly, there were inconsistencies between DM’s and other evidence.
In my view, each of the matters relied upon were things that a jury — properly instructed — were capable of evaluating.
I have carried out my own independent assessment of the evidence. Essentially, the case revolves around the credibility and reliability of DM. In my view, an adequately instructed jury, applying themselves properly to their task, could act on the evidence of DM, despite the alleged inconsistencies and other frailties attending it.
That is not to say that a jury would be bound to convict. Full penetrative sex perpetrated by an adult on a 12 year old (or a six or an eight year old) girl, in a house with the internal features described by the witnesses, whilst another adult was in the kitchen (or laundry) doing housework, carries with it some difficulties in unequivocal acceptance. The absence of observed injuries — including bleeding — by any person in authority, adds to the difficulties in acceptance. Furthermore, the factors which render DM’s evidence potentially unreliable, and the various inconsistencies relied upon, also may also impinge upon credibility.
In the end, however, these are matters for a jury. Were I the tribunal of fact, I might not be satisfied beyond reasonable doubt. That, however, is not to the point. Although, perhaps, close to the line, the essential aspects of DM’s evidence are, in my view, capable of being accepted by a jury, rendering it open to the jury to convict.
I would not uphold ground 2.
Conviction — the second indictment
With respect to the second indictment, the applicant relied on the following grounds:
1. The learned Judge erred when she ruled that evidence of statements made by the complainant to Loretta Hancock, unnamed camp counsellors, L. McQueenie, Constable Fehland, K Roussakis, and Dr Ian Sale, were admissible as previous representations pursuant to section 66 of the Evidence Act 2008.
2. The learned Judge erred when she ruled that the evidence of those previous representations should not be excluded pursuant to section 137 of the Evidence Act 2008.
There were two uncompleted trials of the applicant with respect to the indecent assault of JP, before the applicant was found guilty at a third trial. The jury in the first of those trials was discharged after a witness, on the last day of evidence, gave a prejudicial answer to a question in cross-examination. Almost immediately after the second trial commenced, the jury was discharged because a juror recognised the applicant. During the third trial — at which the prosecution evidence was presented by playing the recorded evidence from the first trial — the applicant was found guilty.[20]
[20]The two trials of the charges involving DM preceded these three trials, which were chronologically the third, fourth and fifth of the trials that the applicant faced.
To understand the manner in which grounds 1 and 2 are put, it is necessary to describe the evidence in some detail.
JP gave evidence that when he was in primary school he lived with his mother, his two younger half-brothers and the applicant, in Sunbury. The applicant would get under the bed covers with JP and cuddle him, telling him that he loved him, that he was special, and that it was their secret. JP claimed that the applicant would rub his genitals against him, going faster until he ejaculated. Sometimes the applicant would also masturbate him.
The incident the subject of the charge occurred on an occasion in the late afternoon, just after JP had started grade 6. He and the applicant went to the applicant’s and his mother’s bedroom. They were on the bed and the applicant had his arms around him. JP was wearing undergarments, but the applicant was wearing nothing. The applicant thrust and rubbed his penis against JP until it was erect. He told JP that he was special, that he loved him and that it was their secret. For five or ten minutes, the applicant thrust against JP until ejaculating onto JP’s belly. JP said that was the last sexual incident he could recall happening in Sunbury. It was not long before they moved to Tasmania.
Years afterwards, on 9 April 1997, the family having moved to Tasmania, JP spent the afternoon drinking with his friends before returning home. When he walked into the kitchen he saw a note from the applicant telling him how to heat up his dinner. JP became angry because he felt that the applicant was trying to play ‘happy families’, like nothing had happened. He went into his mother’s and the applicant’s bedroom. JP yelled at the applicant, ‘Tell the truth; I’m not a liar; I know what you did’, because he wanted the applicant to tell his mother about the sexual abuse. The applicant woke up and attacked JP (although it was JP who was later charged with offences of violence). JP said that he could not recall the police arriving, but he recalled crying during his later police interview because he felt relieved that it was all out in the open. Police charged JP following the incident. JP pleaded guilty to offences relating to his assault of the applicant. He received a sentence of imprisonment.
During his interview by Tasmanian police concerning his assault on the applicant, JP said that he was trying to kill him. He told police that he had been drinking since 4:00pm that afternoon, and had also taken pills and marijuana. JP told police that he was drug and alcohol affected when he returned home. When he saw the note, ‘Put your tea in the microwave’, it caused him to enter into an uncontrollable rage and attack the applicant. JP gave evidence that this was the first time that he had said anything directly to the applicant about the sexual abuse.
In his evidence, JP said that the first person he told about the applicant’s sexual abuse was his girlfriend Loretta, in 1992. He also said that in 1993 he told a counsellor at a youth camp what the applicant had done to him. The counsellor was the first ‘official’ person that he told. He said that he told the counsellor about the sexual abuse and how the applicant would sneak into his bedroom, comfort him, tell him that he was special and that it was their secret.
It seems that the next person to whom JP allegedly said anything about the applicant’s abuse was Katina Roussakis, whom he met in 1996 or 1997. Whilst in gaol for his assault of the applicant, JP wrote letters to Ms Roussakis. Upon his release he continued to see her, and they had a son together in 1999. About ten years prior to the trial, JP told Ms Roussakis that the applicant had abused him, and to be careful if their son was ever around him. JP could not recall when he first raised the topic of sexual abuse with her other than in his letters.
Whilst imprisoned, JP was interviewed by Dr Sale, but could not recall what he said to him.
Over objection, the judge ruled that a number of previous representations made by JP to various people were admissible.
Thus, the judge ruled that certain previous representations made to a police officer, Constable Fehland, in the record of interview in April 1997; to his former girlfriend, Ms Hancock; to a camp counsellor; to Ms McQueenie; and to Ms Roussakis; could be admitted ‘on the basis of credit’. Her Honour also permitted previous representations made to Dr Ian Sale to ‘be led as to truth and credit’.
Unfortunately, the judge’s ruling was fundamentally flawed. She did not determine — as was necessary — that the occurrence of the relevant asserted fact in each case was ‘fresh in the memory’ of JP at the time that he made the several previous representations upon which the prosecution sought to rely.
The admissibility of a previous representation is governed principally by s 66 of the Act, which makes plain that the touchstone for the admissibility of any previous representation is that the occurrence of an asserted fact was fresh in the memory at the time that the representation was made. Section 66 of the Act provides (so far as relevant):[21]
[21]Emphasis added.
66 Exception—criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made —
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
…
Curiously, although the judge rehearsed the provisions of s 66 in her ruling, nowhere did she turn her mind — except in an oblique way — to whether the occurrence of the asserted fact was fresh in JP’s memory at the time that he made the various representations. In the course of her ruling, the judge, as I have mentioned, referred to s 66. Her Honour also made reference to other sections of the Act, including s 55, s 136 and s 137. Having done so, the judge excluded parts of some representations, and limited the scope of some of the others to credit, but wholly failed to turn her mind to the pivotal issue of whether the occurrence of the asserted fact was fresh in the memory of JP at the time that the particular representation in issue was made.
The burden of demonstrating that the occurrence of the asserted fact which was the subject of each representation was fresh in JP’s memory rested with the prosecution. Subsections 66(2) and 66(2A) focus attention on the ‘asserted fact’,[22] since it is the ‘occurrence of the asserted fact’ that must be ‘fresh in the memory of the person who made the representation’ at the time when the representation was made. In determining whether the asserted fact alleged is fresh in the memory of the person making the representation all matters that the court considers relevant to the question must be taken into account, including the nature of the event concerned; the age and health of the person making the representation; and the period of time between the occurrence of the asserted fact and the making of the representation.[23]
[22]As ‘asserted fact’ is one ‘that it can reasonably be supposed that the person intended to assert by the representation’: Evidence Act 2008, ss 59(1) and (2)
[23]Pate (a pseudonym) v The Queen [2015] VSCA 110, [141] (Priest JA) (‘Pate’). See also Clay (a pseudonym) v The Queen [2014] VSCA 269.
Neither counsel at trial gave the trial judge much assistance in assessing whether there was material justifying a conclusion that the asserted fact was fresh in the memory of JP when any particular representation was made. Perhaps the closest either counsel came was the prosecutor’s assertions that, ‘Scattered throughout the committal there is … a very clear assertion by the complainant that his memories of the offending were very clear’; and that, ‘He says that his memory’s getting better but he also says that “There's some things I think you never forget” and the offending is what he never forgets’. Self-evidently, such assertions were an insufficient foundation to establish the admissibility of the various representations.
Counsel for the respondent in this Court sought to uphold the admissibility of the representations — particularly those made to police in the record of interview, and to Dr Sale, following the April 1997 assault — in reliance upon LMD.[24] It was submitted that the facts of this case are ‘not dissimilar’ to those in LMD, ‘in the sense that the complainant’s memory of the alleged sexual abuse by the applicant caused the complainant to act in a particular manner, and the explanation for the complainant’s actions gave rise to the representations the Crown sought to lead’. It was submitted that it was open to the trial judge, and this Court should conclude, that the facts of the alleged sexual abuse were fresh in the complainant’s memory at the times of the respective representations, and thus the ‘precondition’ in s 66 was ‘met’.
[24]LMD v The Queen [2012] VSCA 164 (Bongiorno, Harper JJA and Davies AJA) (‘LMD’).
The facts of LMD were quite unusual. In LMD, evidence of representations were held to have been properly admitted since, notwithstanding the lapse of ten years between the occurrence of the asserted fact and the representations, there had been — so it was held — a continuous revival of the events in question, since the complainant in that case continually experienced difficulty having sex with her boyfriend as a result of constant flashbacks as to the relevant offending. I have previously resisted an invitation to consider whether LMD and XY[25] were wrongly decided, observing, however, that I would not hasten to embrace the reasoning in either case.[26] It is enough for present purposes to observe that there was no evidence in this case that JP’s memories were revived in the manner that the complainant’s memories were said to have been revived in LMD.
[25]R v XY (2010) 79 NSWLR 629 (Campbell JA, Simpson and Whealy JJ).
[26]Pate, [141].
There was no evidence before the trial judge upon which she could have concluded that the occurrence of the asserted facts were fresh in JP’s memory at the time that any of the representations were made. Thus, the important criterion for admissibility had not been satisfied. The evidence should not have been admitted. A substantial miscarriage of justice resulted.
The application for leave to appeal with respect to the second indictment must be granted, the appeal allowed and the conviction quashed.
Acquittal or retrial?
In a case such as the present, when this Court allows an appeal against conviction, it must set aside the conviction and either order a new trial or a judgment of acquittal.[27]
[27]Criminal Procedure Act 2009, s 277(1).
Counsel for the applicant submitted that, should the appeal against conviction succeed on grounds other than that which asserts that the convictions with respect to DM are unsafe and unsatisfactory, the Court should nonetheless enter judgment of acquittal on all charges. Several factors were urged by counsel as dictating that course: first, the applicant’s age, 79 years; secondly, the applicant’s manifold health problems; thirdly, the delay in finally resolving the matters; fourthly, the fact that the applicant had thus far been subjected to five trials; and, fifthly, the fact that he had, up to the hearing in this Court, spent 462 days in custody.
In a perspicuously fair submission, senior counsel for the respondent submitted that, should the appeal against conviction succeed, then it would be proper to enter a judgment of acquittal on the charge involving JP, but that a retrial should be ordered on the charges relating to DM.
When exercising the discretion whether or not to direct a new trial, the interests of the community as well as the interests of the accused need to be brought into balance.[28] The circumstances in which the discretion will be exercised so as not to order a new trial will widely vary, so that there are no fixed criteria. Among relevant considerations, however, are the advanced age and ill-health of a successful applicant, and the fact that much of the sentence may have been served.[29]
[28]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; R v Anderson (1991) 53 A Crim R 421, 453.
[29]R v Bartlett [1996] 2 VR 687, 698. See also R v Clune (No 2) [1996] 1 VR 1, 6; Rabey v The Queen [1980] WAR 84, 95–96; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; R v Thomas (No 3) (2006) 14 VR 512, 521 [37]; Dyers v The Queen (2002) 210 CLR 285, 314–5 [82]–[83] (Kirby J). See also C Corns, The Discretion of the Court of Appeal to Order a New Trial or Verdict of Acquittal, (2006) 30 Crim LJ 343, where a useful summary of the principles may be found.
I am of the view that the concession made by the respondent with respect to the charge involving JP should be acted upon. Upon the quashing of the conviction, a judgment of acquittal should be entered on that charge.
With respect to the charges involving DM, however, I am of a different view. Although the matter is not free from difficulty, I would order a retrial on those charges. Despite the antiquity of the offending, the charges are very serious. Although an order for a retrial will require the applicant to face a further trial, it is but the third trial of these particular charges. Moreover, I expect that any retrial is capable of being conducted in large part — subject to the consideration of any contrary submission that the parties may wish to make to the trial judge — by the playing the tape-recorded evidence of witnesses from the first trial. The applicant’s
age and ill-health do not sufficiently compromise the anticipated fairness of any new trial so as to militate against an order that there be such.
Conclusion
Both applications for leave to appeal against conviction should be granted, the appeals allowed and the convictions quashed. There should be an order for a retrial with respect to the charges involving DM. A judgment of acquittal should be ordered on the charge concerning JP.
KYROU JA:
I agree with the orders proposed by Priest JA for the reasons his Honour has given. I also agree with the additional observations of Kaye JA.
KAYE JA:
For the reasons given by Priest JA, I agree with the disposition proposed by his Honour in respect of the appeal against conviction on the second indictment (involving charges relating to JP). Subject to what follows, for the reasons stated by Priest JA, I also agree with the disposition proposed by his Honour in respect of the appeal against conviction on the first indictment (involving charges relating to DM).
The question whether, in the trial of the first indictment, the judge should have given an unreliability direction under s 165, is not entirely straightforward. However, for the reasons that follow, I am persuaded that such a direction should have been given, and that the judge erred in not doing so, in the second trial.
In general, the rationale for providing such a direction, both at common law, and under s 165 of the Evidence Act, is that a jury may not be sufficiently alert to the potential unreliability of the particular evidence in question, nor as to the factors
which give rise to that unreliability.[30] The specific categories of evidence, specified in s 165(1)(a), (b) and (d) to (g), are all instances of evidence which have that characteristic. In such a case, the law has considered it necessary that juries be properly alerted to the potential unreliability of that type of evidence, which may not be entirely apparent to a lay tribunal not possessed of legal experience. In addition, in such a case, it is important that the need for the jury to exercise caution about that evidence be subject to a direction of law by the judge, carrying with it the authority and weight of the judge’s office.
[30]See for example R v Stewart (2001) 52 NSWLR 301, 317 [83] (Howie J); Bromley v The Queen (1986) 161 CLR 315, 324–5 (Brennan J).
At common law, there were certain recognised categories of evidence, such as the evidence of accomplices and prison informants, in respect of which the law mandated that such a warning be given. In addition, it was recognised that there may be other evidence, or witnesses, which did not fit into such categories, but in respect of which it was nevertheless necessary, in the interests of justice, that such a direction be given.[31] In Bromley v The Queen,[32] the Court was concerned with the evidence of a witness who was schizophrenic, who had suffered delusions on the night of the crime, and whose evidence contained some clear inaccuracies. In respect of such a witness, Brennan J stated:
The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses. The experience of the courts has shown also that the reasons which may lead one suspect witness to give untruthful evidence are not necessarily the same as the reasons why another suspect witness may do so … The reasons why a person suffering from a mental disorder might be led to give untruthful evidence depend, I suppose, on the nature and severity of the mental disorder.
…
The rules of practice requiring the giving of a warning owe their existence …’partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’ … If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully aware to it without a warning, no warning need be given …[33]
[31]See for example DPP v Faure [1993] 2 VR 497, 504 (Hampel J); Sumner v R (2010) 29 VR 398, 403 [20]; R v Kotzmann [1999] 2 VR 123.
[32](1986) 161 CLR 315
[33]Ibid 324 (citations omitted).
In the present case, I do not consider that the factors of the age of the complainant at the time of the offending, or the delay between the offending and trial, are sufficient, without more, to require the judge to have given an unreliability direction. The critical question, then, is whether those factors, in combination with the complainant’s intellectual deficit, rendered it necessary that such a direction be given to the jury.
In the second trial, the jury was told, in the prosecutor’s opening, that DM had been assessed with an IQ of 57 in 2010. Before the recording of that witness’s evidence was played to the jury, the judge told the jury that the evidence had been pre-recorded with a police officer present, because of the witness’s intellectual disability. The witness Roberts, to whom Priest JA has referred, described the complainant’s low level of intellectual functioning at the time of the offending. In her charge, the judge reminded the jury of the evidence of the complainant’s ‘cognitive disability’.
In those circumstances, the evidence before the jury was that the complainant had a quite marked cognitive disability, which manifested itself by her evident low level of functioning at the time. In my view, there was a particular danger inherent in the evidence of such a person, recollecting, after a period of 30 years, events which occurred when she was of a particularly young age. It is the joint combination of those three factors, each affecting the other, which invested the evidence of that witness with a particular degree of unreliability. While, quite possibly, the members of the jury might have been able to appreciate the nature and extent of that unreliability, and the reasons for it, there was, I consider a residual risk that, in the absence of appropriate warning by the judge, the jury might not have been fully alerted to, or understood the impact of, those factors, and their effect on the potential unreliability of DM’s evidence. In those circumstances, in my view, the judge ought to have given a direction to the jury, carrying with it the weight of her office, in accordance with s 165 of the Evidence Act, that DM’s evidence might be unreliable, and that the jury should exercise particular caution in determining whether to accept the evidence and the weight given to it.
I am fortified in that conclusion by the ruling given by the judge in the first trial, in which her Honour accepted that there was a need for such a direction to be given. The reasons given by the judge, for that conclusion, in the first trial, were sound, and, indeed, compelling. It is a pity that she was dissuaded from adhering to that course in the second trial. As Priest JA has pointed out, nothing had changed between the first trial and the second trial, other than the identity of the prosecutor.
For those reasons, and the reasons given by Priest JA, I agree that the judge erred, in the second trial, by failing to give such a direction, and that as a result, there has been a substantial miscarriage of justice.
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