Geddes v The Queen
[2011] VSCA 354
•30 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0055
| RUSSELL ARCHIBALD GEDDES | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MANDIE and BONGIORNO JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 August 2011 |
| DATE OF JUDGMENT | 30 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 354 |
| JUDGMENT APPEALED FROM | DPP v Geddes (Unreported, County Court of Victoria, Judge McInerney, 25 January 2011 (date of verdict), 3 March 2011 (date of sentence)) |
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CRIMINAL LAW – Appeal against conviction – Appellant former teacher at Melbourne high school – Charged with sexually abusing student – Sexual abuse allegedly occurred on four separate occasions – Appellant convicted on six charges and acquitted on four charges – Evidence at trial suggested that complainant may have lied with respect to particular matter – Trial judge directed that jury could only use lie in assessing complainant’s credibility if they were satisfied beyond reasonable doubt that he had lied – Physical evidence cast doubt on complainant’s evidence regarding timing of alleged episodes of sexual abuse – Whether verdicts of guilty were unsafe and unsatisfactory either because they were inconsistent with verdicts of acquittal or because they were unsupported by evidence – Whether trial judge’s direction with respect to use jury could make of possible lie told by complainant was erroneous – Appeal allowed – Convictions sustained by appellant in Court below set aside and judgment and verdict of acquittal entered in respect of charges of which he was convicted.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr M Croucher | Mr A De Kretser |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MANDIE JA:
Bongiorno JA will deliver the first judgment.
BONGIORNO JA:
In the early 1980s, the appellant, Russell Archibald Geddes, was a teacher at a Melbourne suburban high school. In January 2011, he was tried before Judge McInerney and a jury in the County Court on an indictment alleging ten charges of sexual abuse of the complainant, ZL, in 1981 and 1982 whilst ZL was a pupil at the school. Eight charges were of indecent assault and two were of gross indecency. The appellant was found guilty by the jury on one charge of gross indecency and five charges of indecent assault. The trial judge sentenced the appellant to a total effective sentence of two years and nine months’ imprisonment with a non‑parole period of one year.
The Crown case against the appellant was that his sexual abuse of ZL occurred on four discrete occasions. On two of those occasions, he and ZL were both participants in a school-sponsored outdoor activities camp, the first at Mount Feathertop in the Victorian alps and the other at Melville caves near Inglewood, northwest of Bendigo.[1] On two subsequent occasions on which the Crown alleged offences were committed, ZL and Geddes were together at a house in Daylesford owned by Geddes’ parents.
[1]ZL said incorrectly, in evidence, that the Melville caves were near Glenrowan.
ZL described being a member of a club at the school called the ‘Adventure Club’. The appellant was the club’s co‑ordinator and, with a number of other teachers, organised trips to various locations where a group of students and teachers would engage in outdoor activities, such as bush walking, camping and the like. The trips were generally within Victoria but occasionally included interstate and on one occasion an overseas destination.
ZL described the first act of abuse by the appellant as having occurred on an adventure camp at Mount Feathertop in the Victorian alps. He said he was ‘paired’ with the appellant and shared his two‑man tent. On the night the abuse occurred, the weather was stormy and raining. It was dark. ZL and the appellant both slept in sleeping bags very close to each other in a small tent. ZL said he felt the appellant right behind him and ‘almost cuddling’ him. He felt the appellant’s erect penis against his buttocks and felt the appellant ‘sort of reaching and sort of pushing’ ZL into him. He said nothing to the appellant about this although he said he was ‘quite freaked out’ by it. The following morning, the appellant engaged in wrestling with ZL in the course of which he straddled him in the groin area such that ZL could feel him becoming aroused. This activity by the appellant formed the basis of charge 1 on the indictment, a charge of indecent assault of which he was convicted.
The second episode of abuse occurred, according to ZL, at Melville caves. Again, ZL and Geddes were on an adventure camp and again, they shared a two‑man tent. On this occasion, ZL said that someone on the camp brought port to drink. The appellant turned a blind eye to this although it was contrary to the school’s policy.
ZL described the appellant sleeping with his sleeping bag open whilst he, ZL, had his zipped up. The appellant put his hands around ZL while they were both lying down and began gyrating behind him. His hand was over ZL’s sleeping bag, not inside it, and he was ‘playing’ with ZL’s penis. He did this for probably an hour or two hours. ZL then heard Geddes masturbating. Subsequently, he felt wetness on his forearm which might have been sweat or might have been semen.
The appellant’s alleged activities at Melville caves provided the basis of charges 2 and 3 on the indictment, each of indecent assault. The appellant was acquitted of each of these charges.
The complainant next described going to Daylesford with Geddes. He said he went there at least twice, the first time being probably in 1982. He described the Adventure Club as being a group of boys and teachers who were extremely close. He became a leader in the Adventure Club and, at Geddes’ invitation, went on the trip to Daylesford with three or four or even five other leaders. He said he thought the house in Daylesford belonged to the appellant’s parents. The trip was over a weekend.
ZL described engaging in outdoor activities at Daylesford before going to bed. The group had been bushwalking and ‘night spotting’ for animals. He described the appellant as generally sleeping wearing a ‘sarong’, which some of the others also wore. There was alcohol on this occasion and he, the complainant, had a little and became a ‘little bit tipsy’. He said he fell asleep on a couch. The appellant picked him up and put him to bed on a bottom bunk in a room which had two bunk beds. He was still asleep when the appellant came back later to the room and got ‘into bed behind me again’. ZL described Geddes as then performing acts similar to those already described. Geddes was cuddling him from behind as before except on this occasion, ZL was not in a sleeping bag. He was using his sleeping bag like a ‘doona’. The appellant was wearing his sarong with nothing under it. Again, ZL felt Geddes’ erect penis on his buttocks. Geddes also began rubbing ZL’s penis, which became erect. He alternated between doing this and masturbating himself until he ejaculated. ZL felt this on his skin. ZL described becoming angry at these events but did not say anything to Geddes.
The events on the first Daylesford trip formed the basis of charges 4 and 5 on the indictment, one of indecent assault and one of gross indecency. The appellant was acquitted of both of these charges.
Subsequently, ZL went again with Geddes to Daylesford. He said this trip occurred eight months or a year after the first trip. The appellant invited ZL to go to Daylesford to help him to finish some renovations at the house. The trip occurred on a weekend when the weather was ‘freezing cold’. There were signs of renovations having been undertaken at the house. ZL said that they might have drunk a bit of port but that he couldn’t remember being ‘as tipsy as the time before’. He said that only he and the appellant were at the house on this occasion. The appellant and ZL wore sarongs and slept in a king-size bed together. ZL described a series of acts which he said the appellant performed while they were in the king-size bed. The acts which formed the basis of charges 6, 7, 8 and 9 consisted of the appellant masturbating ZL, masturbating himself, trying to have ZL masturbate him and penetrating ZL’s anus with his finger. At some point, ZL told the appellant to ‘fuck off’ and moved to a bed in a different room. The appellant subsequently followed ZL into this room and began to masturbate him again. This act formed the basis of charge 10.
The Crown tendered photographs of the Daylesford house taken in August 2009 which ZL identified. He said that the colour scheme was as he remembered it and that he recognised the deck area where he and the appellant had had breakfast on the last occasion he was there. He said, however, that he thought the house was now bigger than it had been then and suggested that it might have been extended. He said that he now recalled that the name of the house was ‘Serendipity’.
In cross‑examination, ZL said he had never been back to the Daylesford house since the second occasion on which Geddes had assaulted him. It was suggested to him that there had been no balcony at the back of the house in 1981 or 1982. He responded by saying:
The balcony as I recall was to the side of the house. As I said, it was off the lounge room to the right and it was out there and — it looks like it’s been renovated by — home renovation.
He did not agree with the suggestion that there was no verandah on the house when he was there.
ZL said the house was ‘a bluey green colour’ in 1982. When it was suggested to him, however, that, in fact, it was completely brown at that time, he said he could not recall. He subsequently said however that the front of the house was not brown then, ‘that’s for sure’.
He conceded that in his statement to the police he had described the house as being ‘a bluish colour’ when he was there in 1982 and as having verandahs both at the front and at the rear. He denied a suggestion that he had visited the house more recently and that that was why he had told the police it was a bluish colour.
It was put to ZL that his account of the appellant’s sexual activity with him was false. He denied that this was so. He confirmed that as the abuse continued, he had become confused and angry and that on the second occasion he went to Daylesford, he was ‘nervous’ about going. He said he ‘still loved’ the appellant but also agreed with the suggestion that he hated him. He was unsure as to whether he went on any further trips with Geddes in small groups but said he thought he still went on a few school‑based camps even after he left that school and began attending another. He said he might have gone away for weekends and remembered Geddes ostracised him ‘a little bit’.
ZL was cross‑examined about a visitors’ book kept at the Daylesford house and he acknowledged his handwriting on two entries in that book, one dated ‘19 May 1982’ and the other ‘4th-6th June’. The entry of 19 May 1982 was also signed by another boy and that dated ‘4th-6th June’ included the words, ‘Arnold and Russ made the roof support …’.
ZL agreed that although he had a good relationship with his parents, he never made any complaint to them of Geddes’ activities, nor did he complain to his sister or his brother. He never raised the matter with anyone else until 28 years after the events occurred when he went to the police in July 2009.
ZL said that after the second Daylesford trip, he stopped going to a lot of camps because he was disillusioned about what the appellant had done. He conceded however that he had told the police that subsequent to the Daylesford trips, he and the appellant had been on a camp together where they had shared a tent. He agreed that he had probably also told the police, ‘[t]his was the last camp I went on, as best as I can remember’. He said he could not recall when that camp was.
ZL was then cross‑examined about a number of other camps he had attended after the second Daylesford incident including one at a place called Eagles Nest held between 11 and 14 June 1982, only five days after the weekend on which that incident must have occurred. A list of attendees at that camp, proved later by a subsequent witness, showed that both ZL and the appellant had attended that camp. Other documents, proved by the same witness and tendered without objection, showed that between the second Daylesford incident and the end of 1986, ZL attended more than ten camps at which the appellant was listed as a staff member and three other camps at which he could not be excluded as an attendee as no staff were listed on the documents.
ZL was questioned as to whether the appellant ever gave him port on any of the camps which they both attended. He responded, ‘[t]here used to be small amounts of port when I was in Year 9’.
Although in evidence‑in‑chief ZL said that he left the high school ‘probably another half a year’ after the second Daylesford incident, it is clear from the documents referred to, and ZL’s subsequent answers in cross‑examination, that he did not leave that school until the end of 1983 ― that is to say, at the end of Year 9, 18 months after the second Daylesford incident.
At the end of ZL’s evidence, the Crown sought and was granted leave to amend the dates referred to in charge 1 of the indictment from ‘between the 1st day of March 1981 and the 31st day of December 1981’ to ‘between the 1st day of March 1981 and the 31st day of December 1982’. This was necessitated by a concession made by ZL in cross‑examination. Although the transcript records the prosecutor as suggesting that ZL had conceded that the Mount Feathertop incident ‘could have been in March of 82’, the concession was in fact that the Mount Feathertop incident might have occurred in 1982.
The Crown’s only other witness, apart from the police informant, was another former student at the same high school. His evidence was largely inconsequential. He said he had never seen the appellant give alcohol to any student although he did give port to ex-students who acted as camp leaders. He said that smoking and drinking were out of bounds. The appellant would check students to make sure they did not have any alcohol or cigarettes. He never saw ZL in a tent with the appellant. He said that at the camps, leaders would sleep in tents with leaders, teachers with teachers and students with students. He never heard any talk of ZL having been in the appellant’s tent. He said that Year 7 students were not permitted to go to Mount Feathertop as it was too difficult a camp for them. He said that ZL was very keen to be at the camps.
The police informant gave evidence that the high school had closed some time ago and that he was unable to find any of its records. He confirmed that the appellant had no prior convictions.
Defence counsel called three witnesses, two of whom were former students of the same high school and one of whom was a former teacher at the high school. The first of those witnesses, TF, said that on these camps, students agreed amongst themselves as to where they would sleep in the two- or three-man tents provided. He said that the only time he had ever known anyone to sleep with a teacher was if the student had no one to be with or could not be accommodated with other students. He never saw ZL ‘team up’ with the appellant. He never saw the appellant give alcohol to students. Ex-students, leaders or teachers, as adults, would sometimes bring alcohol and ‘have a sip’ when ‘the kids went to bed’.
TF had been to Daylesford with the appellant. He said he could recall one occasion when ZL was at Daylesford with him and the appellant. He has no recollection of the appellant ever having worn a sarong or of his asking students to wear them. He saw no such garments produced. He continued going on camps until 1986 or later. He was friendly with ZL but never heard any complaint from him of bad behaviour by the appellant. There was never any talk of any untoward behaviour by any teacher among the group. The camps were very popular and those who went on them were ‘pretty close’. He said he had shared a tent with the appellant on one occasion. He thought it was on a rock-climbing trip. The appellant never acted inappropriately towards him.
The second defence witness, GV, was a student at the high school between 1972 and 1977. He was involved in the Adventure Club. His involvement included a period after he left school. He described the tents used on camps and the arrangements for pairing students. He said he did not recall a teacher and a student ever being paired and spoke of the strict rules regarding alcohol which applied at the camps. The teachers never provided alcohol to students, he said. In particular, he said, the appellant’s attitude to this was strict.
GV said he went to the appellant’s house at Daylesford as an ex-student and ultimately he became a co‑owner of the property with the appellant. That was in February 2005. He spoke of renovations to the property, the major one being the addition of a balcony in the 1990s. He identified a plan of the house drawn in July 1988. It showed a balcony to be placed on the south and the west of the house. He said there was no balcony prior to 1988.
GV identified a photograph of the back of the house as it was when he was a student and visited. It showed no balcony. He also identified photographs he took in the year 2000 showing the rear of the house after the rear door had been moved to the side of the house.
GV said it was around the period that he became a co‑owner of the property that the colour of the house was changed. Originally, it was ‘a natural colour, natural timber’. It was the colour shown in defence photograph number 1. Subsequently, it was changed to a blue-green colour. It was not this colour prior to 2005. GV identified the blue-green colour in defence photograph number 4.
GV also gave evidence of there having been a sign saying ‘Serendip Cottage’ on a fence at the house which was not there prior to 2005. A sign to the right of the door on the house was there before GV purchased his half of the property but it was definitely not there when he was a student. It was put up in the late 1990s or early 2000s.
In cross‑examination, GV conceded that it is possible a teacher might have shared a tent with a student from time to time. He said: ‘on the occasion there was an odd person out, it may occur. Possibly.’
The final defence witness was LW, who was a teacher at the high school between 1981 and 1994. She was the Year 8 co-ordinator. She attended many activity camps and she knew the appellant well.
LW identified a bundle of documents, all of which related to the activity camps. They consisted of camp programs, lists of attendees and a pro forma permission form to be signed by the parents of an attendee. The bundle was tendered without objection as Exhibit 6.
LW said there was no consumption of alcohol by students at camps. She never saw any teacher give alcohol to students and certainly never saw the appellant give alcohol to students. She said she was familiar with ZL and went on at least one camp at which both he and the appellant were present. LW said it was very rare for a student to share a tent with a teacher. She gave an example of a particular camp where there was only one female student. The student shared a tent with a female teacher. LW had no recollection of ever seeing ZL share a tent with the appellant. She never heard any suggestion by staff or students that the appellant had acted improperly with any student.
In cross‑examination, LW conceded that there were more camps over the period to which the documents related than those actually listed in the documents. She said she did not think that some of the locations were visited more than once but then conceded that the camps tended to rotate every ‘odd year’. She said that she had been to the house in Daylesford on one occasion but that that was a staff function and was probably in the late 1980s.
This appeal
On 8 July 2011, Geddes was granted leave to appeal by Buchanan JA. His appeal was on the following grounds:
Ground 1:The guilty verdicts of the jury on Charges 1 and 6-10 are unreasonable or cannot be supported having regard to the evidence in that:
(a) they are inconsistent with the acquittals on Charges 2-5; and
(b) it was not open on all the evidence to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty.
On the hearing of this appeal, counsel for the appellant was granted leave to add a further ground concerned with an alleged misdirection by the trial judge to the jury. This ground was in the following terms:
Ground 2: The trial judge erred in directing in a manner:
(a) which tended to reverse the onus of proof with respect to lies told by the complainant; and
(b) that required the jury to be satisfied beyond reasonable doubt as to a lie told by the complainant to be able to use it in respect of his credibility.
It is convenient to deal with Ground 2 first.
Lies told by the complainant
This case depended wholly upon the complainant’s uncorroborated evidence being accepted by the jury. Thus, a central issue was his honesty and reliability as a witness concerning events which occurred almost 30 years before he gave evidence of them.
The events to which charges 6 to 10 on the indictment related were all alleged to have occurred at the Daylesford house. The complainant described that house as already referred to. Evidence led by defence counsel demonstrated conclusively that on a number of significant matters, ZL’s description of the house as it was in 1982 was erroneous. His description of its colour and its structure was of the house as it was when the photographs tendered by the Crown were taken in August 2009. ZL denied having visited the house to refresh his memory of it.
Defence counsel argued that the jury should be sceptical of this evidence and should, as a result, treat with similar scepticism his evidence of abuse. In his charge to the jury, the trial judge referred to this argument and directed the jury as to ZL’s evidence in this regard as follows:
If you found that you concluded that he was lying about this matter, that is, that the only way he could have given evidence about the sign (indistinct), the fact that there was an outside breakfast area, and the colour of the place, the only way he could have given that is that he must have gone back, therefore he has lied to you when he is adamant that he did not go back before the police, then you take this, if you found there was a lie, then you take that lie into account in assessing his credibility, like you do when you are assessing anyone's credibility. If you concluded beyond reasonable doubt that that was a lie when he was adamant that he did not go back to the house before he spoke to the police, then that would be something that you would take into account in assessing the credibility in this instance of [ZL].
This direction was unfortunately erroneous as a matter of law. It was not necessary for the jury to be satisfied beyond reasonable doubt that ZL had lied before they could use the lie in assessing his credibility. Whether ZL had lied on this point was a matter which could, if the jury thought that he had lied, be used as a touchstone of his credit generally. The question of the standard of proof does not arise. In other words, if the jury did think he had lied, it could and should have taken that fact into account in reaching a conclusion as to the reliability of ZL’s evidence. The point in its context was not unimportant.
On this appeal, counsel for the Crown did not seek to defend the trial judge’s charge with respect to this direction. Rather, he relied upon there having been no exception taken to the charge in respect of it either by the Crown or the defence. He suggested that the judge’s slip went unnoticed by anyone so that no remedy was required or should be granted by this Court.
Even though no exception was taken to the trial judge’s charge, having regard to the centrality of ZL’s credit to this case, this error was potentially serious. The jury might have found it difficult to reach a conclusion as to whether ZL lied beyond reasonable doubt and so might have disregarded this matter in assessing ZL’s credit to the detriment of the appellant. I would uphold this ground. This would normally entitle the appellant to a new trial on all those charges of which he was convicted. However, a retrial would pose certain difficulties in this case, given the verdicts of acquittal on charges 2 to 5. The question of whether to proceed with a retrial would be one for the Director of Public Prosecutions who might well consider that in all the circumstances it would not be appropriate.
Inconsistent verdicts / unsafe and unsatisfactory
Although the two limbs of the first ground of appeal were relied upon as if they were separate and distinct, they are really both directed to the same question concerning whether the verdicts on charges 1 and 6 to 10 are unsafe and unsatisfactory. If a verdict is to be set aside because it is impermissibly inconsistent with another verdict or other verdicts, it is set aside because it is unsafe and unsatisfactory: MacKenzie v The Queen.[2] Indeed, as the argument progressed in this case, it became clear that once the evidence was examined closely, the distinction between the impugned verdicts being unsafe and unsatisfactory because they were inconsistent with the verdicts of acquittal on other charges and their being unsafe and unsatisfactory because they were unable to be supported by the evidence was somewhat blurred.
[2](1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ).
ZL alleged that he had been subjected to four separate episodes of sexual abuse by the appellant: the first at Mount Feathertop, the second at Melville caves and the third and fourth at Daylesford. The appellant was convicted of the only charge relating to the first episode and of the five charges relating to the last episode. He was not convicted on any charge relating to the other two episodes. His argument as to inconsistency was that there was nothing in the evidence or in the conduct of the case which relevantly distinguished ZL’s credit or his evidence in respect of each of the four separate episodes so as to justify a failure to accept his evidence in respect of two of them. His counsel submitted that the different verdicts were:
an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty … [or] confusion in the minds of the jury or a misunderstanding of their function, … or lack of clarity in the judicial instruction on the applicable law.[3]
[3]Ibid 368 (Gaudron, Gummow and Kirby JJ).
The Crown’s response to this submission relied upon differences in the evidence given by ZL concerning each of the four episodes and in particular upon differences which were said to be able to explain why the jury were satisfied of the appellant’s guilt on some charges but not on others. The Crown noted that the jury were given appropriate directions by the trial judge as to separate consideration of each charge and as to the way in which they would have to infer the appellant’s guilty intent if they were to convict. In his oral argument, counsel for the Crown suggested that the Mount Feathertop and second Daylesford episodes occurred when there were fewer people present or in the vicinity than was the case in respect of the Melville caves and first Daylesford episodes. This in itself may explain any apparent inconsistency. Alternatively, the jury may have merely extended to the appellant what King CJ described in R v Kirkman as ‘their innate sense of fairness and justice in place of the strict principles of law’[4] by acquitting him on charges 2, 3, 4 and 5.
[4](1987) 44 SASR 591, 593.
The Crown case on this ground must be accepted. When inconsistency of the type alleged by the appellant is being considered, the role and function of the jury as the tribunal of fact must be respected. It is not unlikely that the jury perceived subtle differences in the appellant’s conduct or were unsure as to whether he had the requisite intent in respect of those charges upon which he was acquitted. I would not be prepared to hold that the jury’s verdicts on the charges on which the appellant was found guilty in this case were unsatisfactory only because of inconsistency with those verdicts by which he was acquitted.
Deficiencies in the evidence
ZL’s description of the four episodes of abuse to which he said he was subjected by the appellant suggested that those episodes were of increasing severity or seriousness ― from the frottage at Mount Feathertop to possible penetration during the second Daylesford visit. ZL clearly nominated the Mount Feathertop camp as the first occasion upon which the appellant assaulted him. Equally clearly, he asserted that the second Daylesford visit was the last time upon which the appellant assaulted him. On that occasion, he told the appellant to ‘fuck off’. He was angry with the appellant and he did not go back to Daylesford again. He said he stayed at school ‘for another half year. I’m not sure, I can’t remember’. In his evidence, he appeared to be trying to create the impression that his contact with the appellant after the second Daylesford visit was minimal although, as stated above, he continued to attend many subsequent camps that were also attended by the appellant.
In cross‑examination, ZL acknowledged his handwriting on the two entries in the visitors’ book kept by the appellant’s family. The dates on those entries effectively dated the two Daylesford episodes as having occurred on 19 May 1982 and from 4 to 6 June 1982. Neither of the entries provided any corroboration of ZL’s account of either of those episodes. They merely detailed some of the activities undertaken by ZL, the appellant and on the first occasion another student and on the second occasion someone referred to as ‘Arnold’. Just as the entries in the visitors’ book enabled ZL’s visits to Daylesford to be dated, so another document containing a list of attendees at the Mount Feathertop camp tendered without objection by defence counsel through the witness LW enabled that camp to be dated as having taken place from 2 to 6 December 1982. In this Court, each of these dates was accepted by the Crown as being applicable to the event to which it related.
The Crown case at trial was that the charges upon which the appellant was indicted occurred in a particular order. The Crown narrative and ZL’s evidence fitted that order. It is clear now that if they occurred, they did not do so in the order originally contended for by the Crown. In particular, the Mount Feathertop incident must have occurred after what ZL described as the last incident, the second Daylesford incident, and at a time when he said he would have been ‘extremely concerned’ to have been left in another tent with the appellant. In summarising the evidence to the jury, the trial judge did not refer to the evidence suggesting that the Mount Feathertop camp occurred after the two Daylesford trips, nor did he give the jury any instruction as to the effect this evidence might have on ZL’s credit. Having regard to this evidence, and also to ZL’s evidence that he effectively told the appellant immediately after the second Daylesford incident that he wanted nothing further to do with him, the Mount Feathertop incident becomes extremely problematic from a credibility standpoint. It is not simply a matter of moving this incident from first to last.
After the jury retired to consider their verdict, they asked a question: ‘How critical is the sequence of events as have been documented in the charges?’ His Honour answered that question as follows:
Well as I said to you yesterday, it is not essential to get the timing right and to answer your question, it’s not critical to get the sequence right because if you remember the first count, in cross-examination [ZL] accepted that whereas he’d initially said 1981 and it was pleaded for 1981, accept that it could have happened in 1982. So it is not so much ― when I said to you, take them in order, that really means look at the evidence in order, it does not really ― it is not essential to take the view that one happened then and the next one happened then because it’s set in the same ― they are now all in the same time period, so it is really the event that you’ve got to be satisfied with, so it is not critical to get the sequence right.
It seems wholly likely that the jury, who had possession of the exhibits, including Exhibit 6, the inventory of camps containing a list of attendees at the Mount Feathertop camp and the date of that camp, had realised that the events could not have occurred in the order contended for by the Crown. The trial judge’s answer to the jury’s question did not address the difficulties in the evidence which that document revealed, particularly the difficulties with respect to ZL’s credit.
The appellant’s argument on the unsafe and unsatisfactory ground pointed to a number of other pieces of evidence which his counsel argued were so inconsistent with the events alleged by ZL that together they made the guilty verdicts unsafe. He referred to evidence from defence witnesses that on the adventure camps teachers did not share tents with students, that teachers did not provide alcohol to students, that the appellant was strict in checking that students did not have alcohol and that there were never any rumours concerning the appellant and his behaviour with students.
Counsel for the appellant particularly relied upon what he submitted was a lie by ZL concerning his not having revisited the Daylesford house before giving a description of it to the police. This, he argued, together with other matters such as the evidence of ZL which appeared to try to minimise his contact with the appellant after the second Daylesford incident, meant that his credit was severely compromised.
The Crown answer to the appellant’s submissions was that although ZL was mistaken as to the time of the Mount Feathertop incident, the other matters relied upon were contentious and appropriate for the jury to determine. Counsel for the Crown also referred to the appellant’s failure to give evidence at his trial and to Weissensteiner v The Queen.[5] In the alternative, counsel for the Crown submitted that this Court should apply the proviso because no miscarriage of justice had been demonstrated.
[5](1993) 178 CLR 217 (‘Weissensteiner’).
These arguments must be rejected. Even if the fact that the appellant did not give evidence is taken into account as Weissensteiner prescribes, the inconsistencies in ZL’s evidence created by some of the objective facts which were in evidence at the trial cast doubt on that evidence. For the jury to have properly convicted the appellant on the charges on which they did, they would have had to accept beyond
reasonable doubt ZL’s evidence that the events constituting charges 1, 6, 7, 8, 9 and 10 occurred even though many of the surrounding circumstances cast doubt on his reliability as a witness and may have demonstrated that he had lied. It would have been particularly difficult for the jury to have accepted the second Daylesford episode as having occurred if it accepted that the Mount Feathertop incident occurred after it, as the Crown now concedes. It must have, if it occurred at all. The likelihood of the second Daylesford event having occurred as ZL said is also diminished by the inaccuracies in his evidence concerning when he left the high school and his attendance at camps after mid-1982. In effect, the jury would have had to rewrite much of the narrative for these events and the circumstances surrounding them in order to be satisfied beyond reasonable doubt that they took place.
Applying the approach required of an appellate court in considering an unsafe and unsatisfactory ground such as this,[6] it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty as found by the jury. The jury should have had a reasonable doubt as to whether the offences charged in charges 1, 6, 7, 8, 9 and 10 on the indictment occurred. The verdicts on those charges are, in the circumstances, unsafe and unsatisfactory.
[6]As to which, see R v Klamo (2008) 18 VR 644; M v The Queen (1994) 181 CLR 487.
The appellant’s convictions and sentences on each of charges 1, 6, 7, 8, 9 and 10 on the indictment upon which he was tried should be set aside and in lieu thereof verdicts of acquittal entered. Thus, the question of a retrial because of the error in the judge’s charge as to possible lies by ZL becomes irrelevant.
MANDIE JA:
I agree with Bongiorno JA.
SIFRIS AJA:
I also agree with Bongiorno JA.
MANDIE JA:
The Court will order as follows:
1. The appeal is allowed.
2. The convictions sustained by the appellant in the Court below on charges 1, 6, 7, 8, 9 and 10 on the indictment upon which he was tried and the sentences passed thereon are set aside.
3. The Court directs a judgment and verdict of acquittal to be entered in respect of each of those charges.
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