Gee v Tasmania
[2022] TASCCA 1
•2 February 2022
[2022] TASCCA 1
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Gee v Tasmania [2022] TASCCA 1 |
| PARTIES: | GEE, Bradley Lawrence Mykael |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2902/2020 |
| DELIVERED ON: | 2 February 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 27 August 2021 |
| JUDGMENT OF: | Wood J, Estcourt J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Procedure – Witnesses – Power of judge – How evidence to be given – Special hearing under
the Evidence (Children and Special Witnesses) Act 2001 – Single count of persistent family violence –
Order that complainant's evidence be taken at special hearing justified and within spirit and intendment
of the Act – No miscarriage of justice resulting from recall of witness on the trial.
Evidence (Children and Special Witnesses) Act 2001 (Tas), ss 6, 8, 9.
Criminal Rules 2006 (Tas), r 41A.
Aust Dig Criminal Law [3146]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Generally
– Evidence of telephone calls with complainant while accused in custody – Highly probative and
admissible on the trial – Not disclosed by the State at time of special hearing but defence had knowledge and cross-examined complainant about them – Condition of admissibility that complainant be recalled on the trial – Recall contrary to indication by the Crown at special hearing – Condition to address unfairness to accused and to allow further questioning of complainant – Telephone conversations could be proved in any event – No miscarriage of justice shown.
Evidence Act 2001 (Tas), ss 90, 137.
Aust Dig Criminal Law [2680]
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Case wholly or largely dependent on the evidence of the complainant - State required to prove at least three
occasions of violence – Jury returned a majority verdict but unable to reach agreement as to which of the 8 occasions of violence had been proved – Legislation made provision for a verdict in these circumstances – Appeal dismissed.
Criminal Code (Tas), ss 170A, 383(4).
Aust Dig Criminal Law [3476]
REPRESENTATION:
Counsel:
Appellant: J Ker Respondent: D G Coates SC, L Pennington
Solicitors:
Appellant: Legal Aid Commission of Tasmania Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASCCA 1 |
| Number of paragraphs: | 103 |
Serial No 1/2022
File No CCA 2902/2020
BRADLEY LAWRENCE MYKAEL GEE
v THE STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J ESTCOURT J MARTIN AJ 2 February 2022 |
| Order of the Court (27 August 2021) | |
| Appeal dismissed. |
Serial No 1/2022
File No CCA 2902/2020
BRADLEY LAWRENCE MYKAEL GEE
v THE STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J 2 February 2022 |
1 This appeal against conviction was heard on 27 August 2021. At the conclusion of the hearing, the Court ordered that the appeal be dismissed, reserving its reasons for publication at a later date.
2 I agree with the reasons now published by Estcourt J and Martin AJ. The reasons expressed by their Honours accurately reflect my reasons for joining in the order dismissing the appeal.
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File No 2902/2020
BRADLEY LAWRENCE MYKAEL GEE
v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
ESTCOURT J
2 February 2022
The appeal
3 On 30 October 2021 Bradley Lawrence Mykael Gee, (the appellant), was found guilty by a jury of one count of persistent family violence contrary to s 170A of the Criminal Code 1924.
4 He applied to this Court for leave to appeal on the grounds that the learned trial judge, Pearce J, erred "in fact and in law" in ordering that the complainant's evidence be taken at a special hearing pursuant to the Evidence (Children and Special Witnesses) Act 2001, and in admitting the content of phone conversations between the appellant and the complainant while the appellant was in custody. He later abandoned one of the grounds of appeal as to the admission of the telephone evidence.
5 He also appealed to this Court on the ground that the jury verdict was unsafe and unsatisfactory and on the ground that the sentence imposed on him of five years' imprisonment with a non-parole period of three years was manifestly excessive. He has since abandoned his appeal against sentence.
6 When the appeal was heard the Court, after conferring, dismissed it in its entirety and indicated that it would publish written reasons for doing so at a later date. These are my reasons for joining in the order of the Court dismissing the appeal.
7 Ultimately the notice of appeal asserted, relevantly, as follows:
"1 The learned trial judge erred in fact and in law in ruling that the whole of the
evidence of Emily Batchelor be taken at a special hearing.
(a) The learned trial judge erred in finding that the appellant would not suffer a forensic disadvantage by reason of the evidence being taken at a special hearing. (b) The learned trial judge erred in finding that the appellant would not suffer any unfairness by reason of the evidence being taken at a special hearing. (c) In the alternative, the ruling that the evidence be taken at a special hearing was unreasonable and plainly unjust. 2 The learned trial judge erred in fact and in law in admitting into evidence the recorded content of phone calls made by the appellant to Emily Batchelor while the appellant was in custody.
(a) ... (b) The learned trial judge erred in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant.
(c) The learned trial judge erred in finding that it would not be unfair to admit the evidence having regard to its late disclosure.
(d) The learned trial judge erred in admitting the evidence conditional upon the State recalling the witness in circumstances where it had previously asserted in support of the application for special hearing that it would not do so under any circumstances.
3 The verdict of the jury was unreasonable and cannot be supported having
regard to the evidence …".
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Background
8 The appellant was convicted following his trial on a single count of persistent family violence. The charge alleged eight specific occasions of physical violence said to have been committed by the appellant against his then-partner, Emily Batchelor (the complainant), over a period of approximately thirteen months, between May 2018 and June 2019.
9 The evidence of the complainant was given at a special hearing conducted in Burnie on 28 July 2020. Her evidence, once accepted, established the occurrence of the physical acts relied upon in respect of each of the occasions particularised by the State. The trial proper subsequently took place in Launceston, between 26 October 2020 and 3 November 2020. The complainant was "recalled" and gave further evidence in the course of the trial, primarily concerning the telephone communication between herself and the appellant while he was in custody in December 2019. Other witnesses, including the complainant's parents and her general practitioner, gave evidence of circumstances surrounding a number of the relevant incidents and of contemporaneous statements made to them by her at those times. The appellant elected not to give or adduce evidence in his own defence.
10 The jury returned a majority verdict, finding the appellant guilty of the charge of persistent family violence. Upon inquiry by the learned trial judge, it was disclosed that the majority of the members of the jury was not agreed as to which of the eight occasions had been proved. The learned trial judge thereafter found, for sentencing purposes, that he was satisfied beyond reasonable doubt that each of the eight occasions had occurred and his Honour sentenced the appellant to a term of imprisonment of five years with a non-parole period of three years.
Ground 1
11 Section 6 of the Evidence (Children and Special Witnesses) Act provides, relevantly,
"6 Application for order for special hearing In a prescribed proceeding or a specified proceeding, the prosecutor may apply to a judge for an order directing –
(1)
(a) that the whole of an affected person's evidence (including cross- examination and re-examination) be –
(i) taken at a special hearing and audio visually recorded; and (ii) presented to the court in the form of that audio visual recording; and (b) that the affected person not be present at the trial …".
12 Section 8 of that Act provides as follows:
"8 Special witness (1) A judge may make an order declaring that a person who is giving, or is to give, evidence in a proceeding is a special witness if satisfied that –
(a) by reason of intellectual, mental or physical disability, the person is, or is likely to be, unable to give evidence satisfactorily in the ordinary manner; or (b) by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other factor the court considers relevant, the person is likely –
(i) to suffer severe emotional trauma; or (ii)
to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily.
(2) An order made under subsection (1) may –
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(a) be made on the application of a party to the proceeding or the prosecutor or on the motion of the judge; and (b) include any one or more of the following orders:
(i) an order that the special witness have near him or her a person approved by the judge who may provide him or her with support; (ii) an order that the evidence of the special witness be given by audio visual link; (iia) an order admitting into evidence a prior statement of the special witness as if the special witness were an affected child or prescribed witness in respect of whom section 5 applies;
(iib) an order that a special hearing be held to take and record evidence as if the special witness were an affected person in respect of whom section 6 applies; (iic) if an order is made under subparagraph (iib), an order that the special
witness not be present at the trial;(iii) an order that, while the special witness is giving evidence, all persons other than those specified in the order be excluded from the courtroom.
(2A) If a person, who is an alleged victim of a family violence offence, is giving or is to give evidence in a proceeding in which a person has been charged with a family
violence offence, a judge –
(a) must consider whether or not he or she should make an order under paragraph (b); and (b) may make an order declaring that the person, who is the alleged victim of the family violence offence, is a special witness.
(2B) An order made under subsection (2A) may include any one or more of the orders referred to in subsection (2)(b).
The judge may only approve a person for the purpose of subsection (2)(b)(i) if that person is not, or is not likely to be, a witness in or a party to the proceeding.
(3)
(4) A judge may revoke or vary an order made under this section. (5) A judge is not to make an order under this section in respect of an affected child or a prescribed witness.
While a special witness is giving evidence by audio visual link, only the following persons may be present in the room with the special witness:
(6)
(a) a person approved by the judge for the purpose of subsection (2)(b)(i);
(b) one person employed at the court in which the proceedings are being conducted."
13 Section 9 of the Act provides as follows:
"9 Preliminary hearing (1) In any prescribed proceeding or any specified proceeding in which a matter affecting a person as a witness is likely to require the giving of an approval under section 4 or the making of an order under section 6A or 8, the prosecutor or the party who is to call that person as a witness is to apply for a preliminary hearing to deal with those matters before the hearing of the proceeding is commenced. (2) A preliminary hearing in relation to a prescribed proceeding or a specified proceeding may be provided for by the rules of the court in which that proceeding is being brought."
14 The appellant does not challenge the learned trial judge's order declaring the complainant a special witness, but asserts that his Honour's ruling allowing the evidence of the complainant to be taken
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at a special hearing, "fell outside the proper exercise of the relevant discretion, such as to be
unreasonable and plainly unjust".15 That submission invokes House v The King (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ said at p 505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The ruling
16 The relevant portion of the learned trial judge's ruling is as follows:
"I'm perfectly satisfied that I should declare the complainant a special witness. Ordinarily an accused person is entitled to face his or her accuser but this is a proper case for application of the statutory exception to that principle.
The accused is presumed to be innocent of the charge, however, his record for offences of violence, particular offences of family violence committed against the complainant is relevant because I may infer that her knowledge of his past behaviour may affect how his presence may now affect her. He has a very bad record for serious violence and for breaching court orders.
which resulted in significant sentences of imprisonment.
Of direct relevance are sentences imposed by a Magistrate on 12 July 2019 and again
on 6 November 2019, for family violence offences against the complainant. On the
latter occasion he was sentenced to imprisonment for nine months, for numerous
breaches of a non-approach condition of the Family Violence Order and for threatening
violence against her and her family.
Examination of his record combined with the current allegations, gives rises to a strong
inference of a propensity to threaten, intimidate and control, and adds veracity to the
facts as relied upon by the prosecution in support of the application.
I have information from the Court Support Officer, the team leader of the Family
Violence Counselling Service, and from the complainant's general practitioner about
their respective observations of her.
What clearly emerges from the material is that the complainant's ability to think and to
understand and coherently respond to questions respond to questions, is adversely
affected to a significant degree when confronted with the prospect of giving evidence
in court in the presence of the accused. Her anxiety seems to manifest itself physically
by her shaking and becoming effectively unresponsive.
I'm satisfied that if she's required to give evidence in the usual way she's not only likely
to suffer severe emotional trauma, but is also likely to be so intimidated or distressed
as to be unable to give evidence or to give evidence satisfactorily. That arises from her
relationship with the accused and from the nature of the subject matter.His prior convictions include for causing grievous bodily harm and assault, both of because of the lapse of time since it was prepared or from when the complainant was last observed, or might be explained by some other factor, however I see no reason to
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conclude that the potential effect on the complainant of having to give evidence is anything other than has been explained and that it's a direct result of matters arising from the relationship.
That conclusion is reinforced by the Prosecutor's recent observations of the complainant's anxiety about the prospect of having to give evidence in court in the presence of the accused. There is a considerable public interest in creating a circumstance in which the complainant is able to give the most satisfactory evidence as can be fairly achieved, provided that it is not unfair to the accused.
I think it is significant that Parliament has recently amended the legislation to include provisions expressly providing for the making of orders for alleged victims of family violence offences. Even were the application not made by the prosecution, s 8(2)(A) requires me to consider making these orders. The purpose of the provision is to allow for the now well understood likelihood that victims of family violence are particularly subject to the types of factors mentioned in s 8(1)(B). I'm satisfied that this is the case here. I declare that the complainant is to be a special witness. I will order that her evidence may be given by audio visual link and she may have near her a person approved by the Judge who may provide her with support.
It remains to consider what the further terms of that order should be, in particular whether I should order a special hearing. The first relevant factor is delay. There was already a trial backlog. Now as a result of the pandemic jury trials cannot be conducted at all in Burnie. Trials can be conducted in Launceston but competing demands on court time between the two registries of the court and the reduced number of court rooms available mean the likelihood of even greater delay despite the best efforts of the court, the DPP and the defence.
There are two obvious advantages of a special hearing. The first is that the complainant is relieved of the stress and trauma of the prospect of waiting to give evidence. In the circumstances of this case I regard that as a factor of significant weight. Second is that pre-recording of the evidence will thereby reduce the length of the trial. I think that that means that it is more likely that the trial will be reached earlier than it otherwise would have.
Those factors must be balanced against any potential unfairness to the accused. It is to be remembered that for reasons already given the complainant's evidence will be by audio visual link whichever course I take. The accused opposes such an order for two principle reasons. He's presently in custody, his counsel submits that if the evidence of the complainant is taken and recorded at a special hearing then one incentive to bring the matter to trial quickly is removed. I would not attribute any weight to such a consideration. As I've already explained I think the opposite is the case. It would be quite an improper course for those responsible for the preparation of court lists to give the trial lesser priority for that reason. In any event matters such as this can be supervised by a judge and directions can be made.
The second matter relied upon by the accused is of more substance. The accused claims that when the strength of the prosecution case depends heavily on the credibility and reliability of the complainant, pre-recording of her evidence will result in a forensic disadvantage to him. It was suggested that the defence should first be able to hear the prosecution opening address, however I am satisfied that the provision of particulars and all of the Crown papers for trial enables the accused a fair understanding of the case against him. If there is any other unfairness it can be dealt with by trial directions confining the prosecution case.
The principal submission made by the accused is that if a special hearing is conducted it will give the prosecution an advantage it does not usually enjoy, of having a greater opportunity to investigate and address, possibly by marshalling evidence, matters put to the complainant in cross-examination.
The defence, for fairness, will be required to put adverse contentions of fact to the complainant. That may disclose factual assertions which form part of the defence case. It cannot yet be determined whether the accused will give or adduce evidence from other witnesses.
On reflection I do not think that there is substance in the claimed disadvantage. The defence facts could not be alibi because the rules already provide for notice of alibi to be given. The prosecution agrees that the complainant will not be recalled at trial to
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meet any factual matter which arises at a special hearing. The prosecution will of course have the right to re-examine at a special hearing just as it would have at trial. I accept the submission of counsel for the State that enquiries about matters raised in cross- examination are commonly made in the normal course of a trial, sometimes short adjournments are allowed for that purpose.
I think that it is unlikely that the prosecution would call other witnesses to meet facts put in cross-examination. That possibility would always exist anyway. The overwhelming consideration is that the trial should not be conducted in a way which is unfair to the accused or the prosecution. No example of actual potential unfairness was offered. As a matter of principle I do not think that the loss of the element of surprise contended for by the accused should carry much weight in that context.
On balance I am persuaded that a special hearing is the proper course. There are strong reasons in favour of such a course in a case like this and I am not persuaded that the accused will suffer any unfairness as a result.
I make an order declaring Emily Batchelor is a special witness in the proceeding. I include in that order, an order that she have near her a person approved by a Judge who may provide her with support. That her evidence be given by audio visual link. That a special hearing be held to take and record evidence as if the special witness were an affected person in respect of whom s 6 applies and that she not be present at the trial."
The appellant's contentions
17 In her written submissions, counsel for the appellant Ms Ker, acknowledges that the issue of delay was a significant factor but submits that a consideration of that issue ought to have recognised that:
The acts the subject of the charge had commenced over two years earlier, and had ended
approximately a year before the special hearing was sought; The material relied upon in support of the application was of a similar age, and thus lacked specific
detail regarding the current effect of the proceedings on the complainant; The complainant had not been required to give evidence in any preliminary proceedings relating to
the appellant in the intervening period; The appellant was in custody, and presented no immediate risk to the complainant; and There was some prospect of securing a trial date in Launceston in the near future, and the State had
given assurances as to a level of priority to be given to the case.18 The primary basis of the appellant's opposition to the special hearing was "the risk of forensic disadvantage and associated unfairness" flowing from the practical requirement to put the State on notice of his defence significantly in advance of the commencement of the trial proper. He points out that ordinarily there is no obligation on an accused person to disclose his case until the relevant witnesses are called in the course of the trial (Ling v South Australia Police [1996] SASC 5856, [11]- [13] (Doyle CJ, Prior and Nyland JJ agreeing).
19 The appellant submits that this type of benefit is a legitimate forensic advantage ordinarily enjoyed by an accused person as a consequence of the right to silence, notwithstanding that the learned judge concluded that the appellant would not suffer any forensic disadvantage or relevant unfairness by reason of the complainant's evidence being given at a special hearing and in the course of an exchange with his counsel, described the advantage asserted as "the element of surprise" and noted that it was difficult to say whether this advantage was real or illusory without further information being provided.
20 The appellant submits that the loss of the element of surprise is necessarily a matter that disadvantages an accused person in the presentation of his or her defence, and that "the risk" is one that was plainly apparent and was, in fact, realised with the subsequent disclosure of and reliance upon telephone evidence which the appellant says was of a highly prejudicial nature.
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21 The appellant submits that it was impossible to assess the extent of the risk at the time of the relevant ruling but that it could not be dismissed as negligible, and that to require the appellant to elaborate on the matter at that stage in the proceedings would have defeated the interest that he sought to protect.
22 Finally, the appellant argues that the material available to the learned trial judge indicated a degree of anxiety on the part of the complainant when faced with the prospect of giving evidence in the presence of the appellant but that it was unclear as to what extent, if any, her anxiety would be ameliorated by giving her evidence in advance of the trial as opposed to simply giving her evidence remotely. The appellant submits that amelioration was assumed and ought not to have justified such a significant departure from the usual process by which evidence is presented against an accused person. He submits that this was particularly so given the delay that had already occurred and the assurances given by the State as to the priority to be afforded to this matter with respect to a trial date.
The respondent's contentions
23 Counsel for the State, Ms Pennington, in her written submissions contended that:
"Section 8(2)(b)(iib) of the Act does not provide any specific criteria as to when an order for a pre-recording should or should not be made. However, it should be borne in mind that an order has to have been made under s 8 of the Act declaring the witness a special witness and the purpose of the legislation.
14 The ability to pre-record evidence of special witnesses was created by the Evidence (Children and Special Witnesses) Amendment Act 2013. The relevant second reading speech on 26 September 2013 includes the following observations about the policy considerations for the ability to pre-record evidence. While a great number of the observations relate to children, the amendments were made with respect to special witnesses also and the observations are equally apposite:
A significant amendment made by this bill is the insertion of a provision that allows a court to order a special hearing to pre-record the whole of the evidence of an affected child, including cross-examination and re-examination. This provision will bring Tasmania into line with the majority of the mainland states and territories. The pre- recording of the whole of a child's evidence has several benefits:
• it allows a child to get on with life sooner, including participating in therapy without the risk of contaminating evidence that has yet to be given.
• there is less waiting time at court because other machinery aspects of the trial are handled separately. The giving of evidence is less stressful as the child does not have to wait for a jury to be empanelled and preliminary matters dealt with before giving evidence.
• the pre-recorded evidence can be used in the event of a re-trial, thus preventing the child having to give evidence several times.
• the evidence is likely to be more reliable as there is less of a gap between the original incident and the giving of evidence.
• the prosecution and defence know the strength of the child's evidence well before trial. This means that the prosecution can determine whether the evidence justifies proceeding with the charges and the defence can decide whether a change of plea is warranted.
15 The benefits outlined in the second reading speech made clear that Parliament's intent in creating the option to pre-record a witness's evidence, primacy was given to the experience of a child or special witness and reducing trauma experienced in the courtroom, in addition to allowing a child or special witness to give closer-in-time, more reliable evidence.
16 Relevant to the policy intent behind the legislation is the amendment history of s 8 of the Act, inserting s 8(2A), requiring the court to consider the making of an order pursuant to s 8(1) declaring the alleged victim of family violence a special witness. The
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reason for incorporating family violence complainants into the legislation in this way alleged victim of family violence is giving or is to give evidence in proceedings for a family violence offence, a judge must consider whether to make an order declaring the alleged victim to be a special witness. A judge may then make an order declaring the alleged victim to be a special witness. The bill inserts a provision stating that when a person is deemed to be a special witness under new provision (2A) any one or more of the orders referred to in subsection (2)(b) in section 8 of the principal act may be included.
was expounded in a second reading speech of 14 March 2017:
A person may also be declared a special witness if it is likely the giving of evidence in
court may cause a person severe emotional trauma or the person may be so intimidated
or distressed as to be unable to give evidence satisfactorily. This may cover an alleged
victim of a family violence offence. If a judge is satisfied that a witness meets one of
these criteria then it is possible to have, for example, a support person with the witness
in court, to use an audio visual link to give evidence rather than being in court, to admit
into evidence a prior statement of a special witness as if they are an affected child under
the act, or to have some persons excluded from the court room.It is clear that some victims of family violence are apprehensive of court proceedings for a range of reasons, including emotional or financial reasons. These amendments will enhance the protections available to these vulnerable complainants to help them cope with and participate in court proceedings.
Of course, not every complainant may want or need these special witness protections, and the court will not make complainants utilise them. There may be some who want to face the perpetrator in court. The new provisions enable a judge to turn their mind to considering the circumstances of each family violence matter before the court."
24 Counsel for the State also submitted that :
"[I]t is clear from the ruling of the learned trial judge that he considered, and took into account, the assertion of forensic disadvantage. His Honour's reasoning, in coming to the conclusion that the appellant would not suffer unfairness as a result of forensic disadvantage, was unassailable. The submissions of the appellant prior to the ruling did not identify any specific forensic disadvantage. The learned trial judge was in a position to compare the ordinary course of a trial with how proceedings might unfold if there were a gap in time between the complainant's evidence and the remainder of the trial. As noted, further enquiries following cross-examination are 'commonly made in the normal course of a trial', the risk of prosecution calling further witnesses to meet facts put in cross-examination existed even without a special hearing, and if such enquiries are required, they are sometimes occasioned by short adjournments during a trial. Thus, any additional unfairness suffered by the appellant must have been limited in nature. Further, the learned trial judge acknowledged the loss of the 'element of surprise' would be occasioned, but attributed little weight to it in making a final decision."
| Discussion |
25 I am not persuaded by the appellant's submissions. I prefer those of counsel for the State. In particular the submission that it is clear that Parliament's intent in creating the option to pre-record a witness's evidence, was to give primacy to reducing trauma experienced in the courtroom, in addition to allowing a witness to give closer-in-time, more reliable evidence.
26 To my mind, forensic disadvantage is not something that has any significant bearing on a case such as this, with no special features. The Evidence (Children and Special Witnesses) Act ipso facto enables any relevant disadvantage to occur, subordinating such a consideration to the objects of the legislation. It does so as a matter of policy and does so specifically in the case of family violence offences.
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27 The learned trial judge's reference in his ruling to "the Prosecutor's recent observations of the complainant's anxiety about the prospect of having to give evidence in court in the presence of the accused" was a reference to an assertion made by counsel for the State on the application as follows:
"Ms Batchelor still suffers severe anxiety talking about these matters. She becomes anxious and manifests the anxiety physically. When describing how a pre-recording
proceeding would proceed she was – she expressed significant anxiety at any prospect
of having to be in the same room as the accused. She even expressed anxiety at the idea that the accused would hear her evidence at all, but was comforted to some extent by the prospect of having physical separation and not being able to view him while that occurred and being able to concentrate on the questions that were asked of her without
the distraction of his presence being physically available to her at that time…The emotional impact and trauma impact of continuing proceedings hanging over a complainant's head is likely to increase that trauma and decrease the ability of a complainant to give evidence satisfactorily in ultimate proceedings. The more time urgency that can be given to these matters in general terms is always better.
In my submission, this is particularly so with respect to Ms Batchelor and it is, in speaking to her, some comfort to her that these proceedings may well be able to be concluded from her perspective and her role in these proceedings might be able to be concluded sooner rather than later."
28 His Honour was entitled to accept those assertions of counsel for the State by virtue of r 41A of the Criminal Rules 2006 which provides as follows:
"41A Applications under Evidence (Children and Special Witnesses) Act 2001 For the purposes of a preliminary hearing under section 9(2) of the Evidence (Children and Special Witnesses) Act 2001, a judge may inform himself or herself in any way he or she thinks fit and may accept statements and assurances of the prosecutor without hearing evidence from the child or person who is giving, or is to give, evidence."
29 The statements by counsel for the State brought the application for a special hearing well within the spirit and intendment of the Act as I apprehend it, and justified the making of the order sought.
30 Notwithstanding that in the events that happened, the complainant was in fact "recalled" and gave evidence and was cross-examined on the trial proper, no relevant unfairness has, in my view, been demonstrated as being brought about by the making of the order for a special hearing. It cannot be said that the order was unreasonable or plainly unjust so as to take the learned trial judge's ruling outside the wide ambit of his Honour's discretion.
31 In my view, the learned trial judge's ruling is unimpeachable and the order his Honour made
was entirely orthodox.
Disposition
32 Ground 1 is without merit and must fail.
| Ground 2 |
33 As already noted, ground 2(a) of the notice of appeal was abandoned by counsel for the appellant in her written submissions.
34 Ground 2(b) asserts that the learned trial judge erred in finding that the probative value of the impugned evidence of telephone conversations between the appellant and the complainant, while the appellant was in custody, was not outweighed by the danger of unfair prejudice to the appellant. Ground 2(c) asserts that the learned trial judge erred in finding that it would not be unfair to admit the evidence having regard to its late disclosure, and ground 2(d) asserts that the learned trial judge erred in admitting the evidence conditional upon the State recalling the complainant in circumstances where it had
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previously asserted, in support of the application, for a special hearing that it would not do so under any
circumstances.
The ruling
35 After hearing evidence on a voir dire as to the history of the discovery of telephone conversations recorded on the Risdon Prison Arunta system, and listening to a sample of the calls, the learned trial judge ruled on counsel's submissions in the following terms:
"The accused is on trial before a jury on a charge of persistent family violence. It's alleged that the acts which constitute the crime were committed between the 1st of May 2018 and the 7th of June 2019 against his former partner Emily Batchelor.
I made a ruling against opposition from the accused that Ms Batchelor's evidence be pre-recorded in Burnie and the pre-recording occurred on the 28th of July of 2020. One of the bases of the opposition to the making of the order was that the accused would suffer a forensic disadvantage arising from the possibility that as a result of cross- examination of the complainant the prosecution would be made aware of the defence case or aspects of the defence case and would have the opportunity to address the matters raised by the defence between the time of the pre-recording and the trial.
I was not persuaded that basis of the objection should, on balance, prevent the pre- recording having regard to all of the other factors that were relevant to that application. One of the reasons that I took that view was that even in circumstances where there is no pre-recording the occasion can arise where the prosecution is given an opportunity by adjournment to address matters raised, for example, in cross-examination of a complainant, by other evidence.
I was informed at the pre-recording prior to and in the course of the pre-recording that
it – the State would not to – would not seek to recall the complainant under anycircumstances.
Now what then occurred was that – in the course of cross-examination of the
complainant a number of matters were put to her about written correspondence that was
exchanged – she had sent to the accused during the course of 2019. The proposition
being that she hadn't been truthful about further contact between her and the accused, that she had not given truthful evidence about that, that there were letters and also phone
calls exchanged between them – circumstances where it suggested that continuation ofsome relationship or correspondence between them was inconsistent with the truth of of admissibility of those phone calls. I'm satisfied that it's open to the jury to regard
her evidence about the violent conduct.
The matters raised in cross-examination were pursued by the prosecution. Contact was
made shortly after the pre-recording with the complainant who then disclosed not only
the letters but also caused a series of conversations made with the accused while he was
in custody at Risdon Prison in December of 2019 and that prompted the prosecution
upon a line of inquiry to inquire about whether those Arunta calls were recorded and,
if so, what the contents of them were.
The prosecution now seeks at the trial to adduce evidence of those phone calls.
them as admissions. I'm satisfied that it's open to the jury to treat part of the contents of the phone calls as evidence of post-defence conduct, probative of guilt and I also accept the submission that the statements are admissible, pursuant to Section 108(2) to
re-establish the credibility of the complainant.
The defence submits, nevertheless, that the evidence should not be admitted, that, in
effect, it would be unfair to do so. In the circumstances of this case. In my view it would
be unfairly prejudicial to the accused to admit the evidence but for one factor, that is
unless the complainant is recalled to give evidence.I was told previously, as I think defence counsel were, that she would not be recalled
but I would not – I would not admit the evidence otherwise.
That's not the end of the story of course it may be that forensic decisions were made in cross-examination of the complainant at the pre-recording to adduce evidence from her
12 No 1/2022
which wouldn't otherwise have occurred had the existence of these phone calls or the intention of the State to adduce evidence of these phone calls been made clear beforehand but I am satisfied that the risk of unfairness in that regard is small.
I'm not persuaded that anything was asked that wouldn't have been asked even if the
phone calls had been made – even if defence had been made aware of the – of theexistence of the phone calls. Ms Ker didn't have long to think about that proposition this afternoon when I asked her about it but I'm satisfied independently that the sorts of issues that she raised with the complainant as to her untruthfulness, the continuation of a relationship, contact or a relationship between her and the accused as inconsistent with the truth of her allegations would have been raised in any event.
There is one aspect of the matter which does cause me concern. As part of the matters
put in cross-examination to the complainant – cross-examination of the complainantcounsel for the accused tendered a series of letters, the letters to which I have referred. I think that had it formed part of the State's case that there was contact between the complainant and the accused through these phone calls it may well have been unnecessary to tender these letters. The loss of the right of final address would otherwise result from the tender of the letters unless I order to the contrary. I haven't heard specific from Ms Pennington about this but I am inclined to order to the contrary in this case.
Ms Pennington do you seek to persuade me otherwise?
MS PENNINGTON: No thank you your Honour.HIS HONOUR: I think it would be potentially unfair to the accused, were I to not make
that order and I will do that, so the – the result of all of those various rulings is, that I
would rule that the evidence of the phone calls will be admitted.It's obvious to me, that they're made from prison even despite the fact that they might
be edited in some respect, I'm not satisfied that that isn't – is a prejudice that can't be
overcome by proper directions to the jury in circumstances of a case like this. As I
explained and I – with the exchanges with counsel, so I'll admit – admit the – the
evidence of the phone calls but conditional upon the recall of the complainant.I would perhaps, hear in the morning early, from counsel about any procedural aspects,
any edits that need – that can't be agreed about this, that if I'm asked to make the ruling
about that, I will.
My preliminary view is that, even though not all of the – my preliminary view is that,
all of the contents of the phone calls which the prosecution intends to adduce, is relevant on one basis or another, as admissions for example, that can't be properly understood
unless the context of the phone calls is – is taken into account, but if there's remainingdisagreement about edits, then I would rule about that in the morning. addressed from the prosecution's point of view and at this stage, I wouldn't limit any
cross-examination of the complainant if – if she is recalled." (Emphasis added)
Appellant's contentions
36 The appellant commences by pointing out that the further enquiries made by the State in relation to communication between the complainant and the appellant following his arrest and remand in custody, were prompted by the evidence given by the complainant in cross-examination that, contrary to what she had stated in her evidence-in-chief, she had remained in contact with the appellant in a total of seven letters and seven telephone calls (the Arunta calls), during a period of two weeks.
37 The appellant contends that the learned trial judge erred in considering his objection to the admission of the Arunta calls pursuant to ss 137 and 90 of the Evidence Act 2001 based upon the late disclosure of the material. He submits that the complainant had completed her evidence at the time at which the audio recordings were produced, and considerations of unfair prejudice and "fairness generally", ought to have precluded their admission. He also submits that his Honour ought not to have permitted the State to recall the complainant given the assurances previously given by counsel to the contrary.
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38 The appellant accepts that the probative value of the Arunta calls was significant, at least in relation to the aspect of post offence conduct and accepts that for the purpose of s 137 of the Evidence Act, the prejudice flowing from the admission of the evidence must be unfair in the relevant sense, and not merely because it increases the likelihood of conviction. He submits however, that unfair prejudice may arise from procedural considerations, such as the absence of an opportunity to cross-examine a relevant witness or difficulty in doing so. He relies on prejudice of this nature on the basis that whilst the State ultimately conceded that it would recall the complainant, the effect of doing so was to split the complainant's evidence and to deprive the appellant's counsel of the opportunity "to prepare for and undertake cross-examination armed with all of the relevant material".
39 He contends that tactical decisions were made by his counsel as to the manner in which the complainant was cross-examined at the special hearing; that those decisions were made based upon the material contained in the Crown papers filed by the State, and that his counsel was entitled to prepare for trial on the basis that the State would not seek to adduce further material concerning the complainant. He submits that "the manner in which the evidence was subsequently made available to the appellant by the State had the effect of undermining the tactical decisions made on his behalf, thereby causing him to suffer unfair prejudice."
40 In relation to the objection based on s 90 of the Evidence Act, the appellant also relies upon the late disclosure of the Arunta calls as constituting unfairness in the relevant sense.
41 The appellant points out that the evidence given on the voir dire as to the impugned telephone calls was by the Acting Manager of the Security and Intelligence Unit at Risdon Prison, Mary Lang, and a number of police officers based with the Family Violence Unit. He says that Ms Lang's evidence established that at least one telephone conversation between the appellant and the complainant was detected by prison staff in December 2019 and reported to the State Intelligence Service of Tasmania Police at that time. First Class Constable Dellar gave evidence that notification of that fact was received by police on approximately 19 or 20 December, and that the Arunta calls were requested by another officer in the Family Violence unit, Acting Sergeant Walker, in March 2020.
42 The appellant notes that on the voir dire, counsel for the State submitted that the Arunta calls were not in the possession of the State at the relevant time (that is, prior to the special hearing) or reasonably available to it, as the matter was only raised in the course of cross-examination. The appellant says however, that this submission overlooked the reality that the Arunta calls had been brought to the attention of Tasmania Police over six months earlier. He submits that there can be no relevant distinction between material reasonably available to the Office of the Director of Public Prosecutions and information that was actually known to Tasmania Police.
43 The appellant submits that the recall of the complainant was capable of addressing, to some
degree, the unfairness initially identified, but that "the decision by the State to do so … was in stark
contrast to the position taken by it in the course of the application for special hearing." There, counsel stated that it would not recall the complainant as a witness, even if investigations into matters arising from cross-examination led to a belief that she otherwise ought to be recalled. He submits that "had that assurance not been given, a different result may have followed."
44 Finally, the appellant submits that the failure of the State to "act in accordance with undertakings and assurances given to the court" may be considered to be an abuse of process, and that such failure in this instance was a matter relevant to questions of fairness arising in relation to both ss 137 and 90 of the Evidence Act, "and also to the question of whether it was appropriate for the learned trial judge to amend the terms of the special witness declaration to permit the complainant to be present at the trial."
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Respondent's contentions
45 Counsel for the State submits that the learned trial judge ameliorated any potential unfairness caused by the late disclosure of the evidence by making its admission conditional upon the recall of the complainant, allowing her to be cross-examined about the content of the calls, and in addition, ordering that the appellant's closing address be presented last, despite him having adduced evidence during cross- examination of the complainant, in the form of the letters. Counsel argues that given the steps taken by the learned trial judge, the probative value of the evidence significantly outweighed the prejudicial effect, and there was no justification for the exercise of discretion to refuse to admit the evidence.
46 Counsel for the State submitted in her written outline as follows:
"56 The respondent submits that counsel's assurances about not recalling the complainant were in light of a suggestion that the State would, of its own motion, attempt to improve its position after the pre-recording by recalling the complainant. The State's assurance that the complainant would not be recalled was in the context of the purposes of the special witness legislation. This context is borne out by the determination of the learned trial judge, during which his Honour noted, 'The
prosecution agrees that the complainant will not be recalled at trial to meet any factual
matter which arises at a special hearing. The prosecution will of course have the right to re-examine at a special hearing just as it would have at trial. I accept the submission of counsel for the State that enquiries about matters raised in cross-examination are commonly made in the normal course of a trial ...' [emphasis added]. In accepting the submission of the State, the learned trial judge did not exclude the possibility that further evidence would be obtained by the State following the pre-recording, but noted the State's position that it would not recall the complainant in order to meet any factual matter raised in cross-examination.
57 No formal undertaking was made by counsel for the State related to recalling the complainant."
47 Counsel for the State submits that while the appellant now argues that there was unfairness to the appellant in the complainant having been recalled and that such unfairness was created by the learned trial judge's "attempt" to rectify any unfairness caused by late provision of the Arunta calls, the fact is that his Honour sought to cure any unfairness attendant upon the tendering of Arunta calls, which he determined to have high probative value. The first step, counsel says, was to utilise the discretion to allow counsel for the appellant to deliver her closing address last, despite having adduced evidence during the cross-examination of the complainant (giving the indication that this might not have been done if the phone calls were available prior to the special hearing). The second step was to make the admission of the calls conditional upon the recall of the complainant, so that the complainant could be cross-examined about the contents of the calls. Counsel for the State says that the fact that the learned trial judge attempted to cure any unfairness claimed by the appellant was not an error. That is, that the complainant was ultimately recalled to cure any unfairness to the appellant by the admission of further evidence and not to bolster the State's case.
Discussion
48 I am at a loss to see any unfairness in the admission of the Arunta calls. The evidence was highly probative, involving admissions of guilt, post-offence conduct consistent with guilt and evidence highlighting the complainant's credibility. It is true that the cross-examination of the complainant by the appellant's counsel on the special hearing was on the basis that the complainant would not be recalled. But the area of evidence opened up by that cross-examination would always have been something that could be expanded or explained by further evidence on the trial proper, without the recall of the complainant, and whether or not the evidence was contained in the Crown papers. The position would have been the same had there been no special hearing and had the complainant's evidence and cross- examination taken the same course on a conventional trial.
15 No 1/2022
49 Moreover, it is a mistake to conflate the learned trial judge's stipulation that the complainant be recalled if the impugned evidence was to be relied upon, with the actual loss of tactical or forensic advantage. In fact, what his Honour did was to impose a condition on the admission of that evidence that was designed simply to remedy any possible disadvantage to the appellant brought about by his counsel being required to cross-examine the complainant on the special hearing without the knowledge that the State would seek to tender relevant evidence that had not been disclosed at that time, and on the understanding that the complainant was not to be recalled. I see no actual disadvantage in what occurred. Rather, I respectfully agree with his Honour's stated view that, "the sorts of issues that [the appellant's counsel] raised with the complainant as to her untruthfulness, the continuation of a relationship, contact or a relationship between her and the accused, as inconsistent with the truth of her allegations would
have been raised in any event."
Disposition of Ground 2
50 Ground 2 is not made out and must fail.
| Ground 3 | |
| 51 | Ground 3 asserts that the verdict of the jury was unreasonable and cannot be supported having |
regard to the evidence.
52 The principles applicable to this ground are well known and understood
The appellant's submissions
53 In view of their nature, I set out in full the submissions of counsel for the appellant as contained in her written submissions in support of this ground. They are as follows:
"31 The present case depended essentially, if not solely, on the complainant. A conviction on the primary charge necessarily required the jury to be satisfied of the credibility and reliability of her evidence, in relation to at least three of the eight occasions relied upon by the State. There was evidence capable of corroborating her account in respect of a number of these occasions and in respect of the relationship between herself and the appellant generally.
32 The specific evidence of corroboration fell broadly into the following
categories:
• Evidence of complaint (occasions two, four, five, seven and eight). • Evidence of injury (occasions two, five, seven and eight). 33 Evidence regarding the general nature of the relationship was given by a number of witnesses to whom the complainant also disclosed particular instances of violence, and was also contained in the Arunta calls. There were also alternative explanations advanced by the complainant to various witnesses at different times, as well as the absence of complaint at times.
34 It is apparent from the verdict that whilst a majority of the jury was satisfied of at least three occasions of family violence, each juror in the majority was not satisfied as to the same three (or more) occasions. Further analysis of the verdict is complicated by the composite nature of the charge and the lack of specification and uniformity required by individual jurors. There was no practical reason in the present case why the indictment could not have alleged each of the eight occasions relied upon as particulars of the persistent family violence charge as discrete offences, given the level of precision with which the relevant acts were identified. Such a course would have avoided to a significant extent the uncertainty inherent in the verdict.
35 With the exception of the second occasion, the appellant's defence consisted of an outright denial of the offending conduct. In order to be satisfied of any particular occasion, the jury must first have accepted the evidence of the complainant in relation to the relevant incident. There were no matters relating to the specific events (again,
16 No 1/2022
with the possible exception of the second occasion) that would independently affect the jury's assessment of her reliability. Despite the urgings of prosecuting counsel and the learned trial judge to the contrary, the question of whether the jury was satisfied beyond reasonable doubt was effectively an 'all or nothing' one.
36 Two difficulties then arise in relation to the verdict. The first of those is, as noted above, there was not the uniformity in the majority verdict that might reasonably have been expected to follow from the evidence that was presented. The second is that the complainant had, by her own admission, lied in the course of her sworn evidence, and had lied directly and by omission at other times throughout the relevant period. It is apparent from the lack of complete satisfaction by the majority as to the occasions of which it was satisfied that some doubt must have persisted as a result of this fact.
37 The appellant contends that it was therefore not open to the jury to be satisfied beyond reasonable doubt as to the charge or any alternative."
The respondent's submissions
54 Counsel for the State submitted in her written outline, as follows:
"80 In circumstances where the State relied upon eight specified occasions of family violence as constituting the crime, the consideration of whether the verdict is unsupported, having regard to the evidence, is a consideration of whether the jury ought not to have been satisfied of at least three of those occasions beyond reasonable doubt. That is, the Code itself provides for a jury to retain 'some doubt' about a complainant's entire account, and still return a verdict of guilty, if more than three occasions of family violence offending are relied upon. This is consistent with ordinary jury directions relating to credibility and the ability of jurors to accept some but not all of a witness's evidence.
81 The verdict provisions of s 170A were the subject of the second reading speech presented by the Attorney General on 16 October 2018 in respect of the Family Violence Reforms Bill 2018, which inserted s 170A into the Code. Reference was made to similar provisions being inserted into s 125A of the Code, altering the requirements for a jury returning a verdict of guilty relating to the crime (as it was then called) of maintaining a sexual relationship with a young person under the age of 17 years. Of note, the following was said:
'The recent criminal justice report of the Royal Commission into Institutional Responses to Child Sexual Abuse considered the matter of the requirement for extended jury unanimity; that is, the requirement that the jury identify and agree on the same occasions of sexual abuse. The royal commission recommended that each state and territory should introduce legislation to amend its persistent child sexual abuse offence so that each member of the jury must be satisfied that the unlawful sexual relationship existed but each member of the jury need not be satisfied of the same unlawful sexual acts.
At present, the offence of "maintaining a sexual relationship with a young person under the age of 17 years" at section 125A of the Criminal Code provides the requirement that the accused committed an unlawful sexual act in relation to the young person on at least three occasions - (section 125A(3)(a)) - and the unlawful sexual act that was committed on any one of the occasions need not be the same - (section 125A(4)(b)) - but the provision does not go to whether all members of the jury need to be satisfied of the same unlawful sexual acts.
This bill implements the recommendation of the royal commission by amending section 125A of the Criminal Code through the inclusion of paragraph (c) to overcome the requirement that all members of the jury be satisfied of the same unlawful sexual acts regarding a charge under section 125A.
Proposed section 125A(6B) proposes that when sentencing the accused for the offence against section 125A, a judge does not need to inquire of the jury which unlawful sexual acts the finding of guilt was based upon. The sentencing judge is to make her or his own findings as to the nature and/or character of the
17 No 1/2022
unlawful sexual relationship on the evidence heard at trial and sentence the accused accordingly. This clarifies that the judge is to sentence on the basis that the identified occasions were not isolated acts but rather ones that took place during the course of the relationship.
The proposed provisions for the new offence at section 170A, also a "relationship" offence, are consistent with the proposed provisions to section 125A of the Criminal Code. New section 170A similarly clarifies that each member of the jury need not be satisfied of the same unlawful family violence acts that constitute the persistent family violence relationship and provides that the sentencing judge is to make her or his own findings as to the nature and/or character of the unlawful family violence acts committed on the evidence heard at trial and sentence the accused accordingly'."
55 Counsel for the respondent submits that the failure of the jury to answer, in response to a special question, that the members of the majority had agreed upon each of the occasions proved, does not deprive the verdict of its veracity in circumstances where at least 10 of the jury must have been satisfied beyond reasonable doubt that at least three of the occasions had occurred. Counsel points out that the jury was not required to answer the special question at all (s 383(4) of the Code) and was entitled to come to a verdict in respect of the primary charge and not continue with deliberations to a point that allowed a decision on the special question. The fact of the jury declining to answer the special question, therefore, cannot necessarily mean that the jury was incapable of answering it.
56 Counsel further submitted that the jury was entitled to find the complainant's evidence credible and reliable, and that there is no reason for this Court to conclude that her evidence was "so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree". Counsel contends that the complainant gave evidence at the special hearing, which was ultimately played during the trial, about each of the occasions of family violence particularised in the charge, in addition to general evidence of her relationship with the appellant, and gave a narrative of each of the incidents particularised, in addition to describing general patterns of behaviour demonstrated by the appellant during the relationship. Counsel notes that the complainant's evidence was corroborated in a number of respects by other evidence.
Discussion
57 I accept the crux of the submissions of counsel for the State. The verdict was open to the jury
on the evidence.
58 Moreover, and leaving to one side for the moment the submission that the complainant, by her own admission, lied during her pre-recorded evidence taken at the special hearing, the contentions advanced on behalf of the appellant seem to me to be a complaint about the nature and scope of s 170A(4) of the Code. That section provides in relation to the crime of persistent family violence, that whilst an accused person is only guilty of having committed such an offence if he or she committed an unlawful family violence act in relation to his or her spouse or partner on at least three occasions, it is not necessary for each member of the jury to be satisfied that the unlawful family violence acts were committed on the same three occasions.
59 A majority of the members of the jury were satisfied beyond reasonable doubt that the appellant had committed an unlawful family violence act in relation to the complainant on at least three occasions. Whether or not they were agreed as to the same three occasions, that is a lawful verdict. It is a verdict intentionally facilitated by the Parliament in the provisions of s 170A and the existence of a reasonable doubt on the part of some members of the jury as to the commission of some or other of the alleged acts, cannot render the verdict unsafe or unsatisfactory.
60 That inconsistent verdicts returned on an indictment charging the alleged family violence acts as separate crimes might well have that result, is not to the point. Nor is it to the point that the case
18 No 1/2022
against the appellant was wholly or largely dependent on the evidence of the complainant. The members
of the jury were not obliged to wholly accept or wholly reject her evidence.61 As to the lies relied upon by the appellant, they were in my view wholly insufficient to require the jury to reject the entirety of the complainants evidence. Counsel for the appellant closed her final submissions to the jury on this point, saying:
"This is ultimately a case that depends upon Ms Bachelor's word and you were told by the State at the outset that you could have absolute confidence in the truth of what Ms Bachelor has said. The difficulty however, in that proposition ladies and gentlemen, is that Ms Bachelor has not been consistent in what she has said. She has, on her own admission, lied and there is clear evidence of that presented to you during this trial. She has told her parents things that she now says weren't true and the State says, well, you can forgive that, because of the difficult situation that she was in and because she didn't want to worry them despite everything that was going on, and in fairness of course, when Ms Bachelor said those things to her parents, she was not under oath. She has omitted to tell police and prosecuting authorities key details that would have assisted in their investigation of this matter. She didn't tell them, that is, police when they attended on the 7th of June, 2019 and found Mr Gee at her home, that he had been violent to her only a short time prior to their arrival. She didn't tell anyone about the telephone conversations she'd had with Mr Gee and the State says, well, you can forgive that, because she says she had been told by Mr Gee not to tell and in fairness, of course, she wasn't under oath then either. She has lied to this court. She told us in the pre- recording that she had had no contact with Mr Gee after a couple of letters between them in December of 2019. You have the proof of that lie. She was under oath at that time.
The State says that Ms Bachelor lied in her pre-recorded evidence to protect Mr Gee. Ladies and gentlemen, you might question whether that can really be said to be the case when the substance of her evidence concerned acts of allegations of serious violence committed by Mr Gee against her, but either way, this is where the difficulty lies ladies and gentlemen. The State's case rests substantially, if not solely, on Ms Bachelor's account. We know she's lied. The State may say it's about a peripheral matter and you may think that there's some force to that, given the matters about which she was giving evidence overall in the proceedings, but you might also ask yourselves whether that is even less of a reason to lie under oath, that's the difficulty ladies and gentlemen, that's the doubt."
62 It was entirely open to the jury to accept that the lies the complainant told did not cause them to disbelieve her evidence as to the unlawful assaults and or the wounds alleged to have been inflicted by the appellant.
Disposition of Ground 3
63 Ground 3 is without merit and must fail.
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File No CCA 2902/2020
BRADLEY LAWRENCE MYKAEL GEE
v THE STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 2 February 2022 |
| Introduction |
64 The appellant was found guilty by a jury of one count of persistent family violence contrary to s 170A of the Criminal Code. The Crown relied upon eight occasions of violence said to have been committed by the appellant against his partner in the period 1 May 2018 to 7 June 2019. In order to prove the charge, the Crown was required to prove the application of violence on at least three of the eight occasions. The jury returned a verdict of guilty, but informed the learned trial judge that the majority members of the jury could not agree as to which of the eight occasions had been proven.
65 At the conclusion of submissions the Court dismissed the appeal. For the reasons given by Estcourt J, I agreed that the appeal should be dismissed. In addition to his Honour's reasons, I add the following references to evidence and observations concerning the appellant's complaint that Pearce J erred in ordering that the complainant give evidence at a special hearing prior to the proceedings commencing before the jury.
The application
66 Sections 6 and 8 of the Evidence (Children and Special Witnesses) Act 2001 (the Act) are set out in the reasons of Estcourt J. The first question for the trial judge was whether he should declare the complainant to be a special witnesses for the purposes of s 8. Plainly, his Honour's ruling that the complainant was a special witness was correct, and was based on more than ample material that satisfied the criteria in s 8. The appellant does not challenge his Honour's determination in that regard.
67 Having determined that the complainant was a special witness, the trial judge was faced with an application pursuant to s 8(2)(b)(iib) for an order that a special hearing be held to take and record the evidence of the complainant as if she were an "affected person" in respect of whom s 6 applied. Section 9(1) of the Act directs that if a matter affecting a person as a witness is likely to require an order pursuant to s 8, the party calling the person as a witness "is to apply for a preliminary hearing" to deal with the issue before the hearing of the proceeding is commenced. In this way, the legislature requires a trial judge to deal with an application for an order that a person is a special witness, and an application for an order that a special hearing be held to take the evidence of the special witness, before the proceedings before the jury are commenced.
68 In the matter under consideration, when it came to opposition to the application for a special hearing, the trial judge was not provided with any evidence. Rather, as is common in such applications, his Honour was required to rely upon the submissions of counsel for the appellant.
69 During the appellant's submissions, the trial judge specifically asked counsel for the appellant what disadvantage the appellant would suffer if, having made an order that the complainant was a special witness, an order was also made that she give evidence by audio-visual link. Counsel responded by addressing the issue of a special hearing, and sought to identify three areas in which the appellant would, potentially, suffer a disadvantage.
70 First, counsel drew attention to the presumption against bail found in the Bail Act 1994 in respect of family violence cases. In response to a suggestion by the trial judge that it would be to the advantage of the appellant that his Honour do whatever he could to bring the matter to trial as quickly
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as possible, counsel identified the second area of disadvantage, namely, the future trial date. Counsel
accepted that the submissions in this respect were "fairly speculative".71 After discussion concerning the possible listing of the trial, counsel came to the third area of
potential disadvantage:
"MS KER: But primarily, your Honour, the objection to this process is that it creates a forensic disadvantage to the accused. It requires, inevitably, that evidence be taken before the Crown opens its case. I should say, your Honour, that in this case I have sought particulars from the Crown, and those have been provided by my learned friend earlier this week. So it maybe that that goes someway to alleviating that particular concern. Obviously there would be a very strong objection raised to any attempt by the Crown to recast or reformulate its case after the complainant's given evidence and in the event that it was permitted to do so there could be application made to have her recalled for further cross-examination.
But more significantly this is a case in which the - the Crown's case is almost entirely reliant on the complainant. There is some limited corroboration by way of complaint evidence and observations by other persons as to injuries that are allegedly the result of various acts of family violence, but by enlarge it's a case that's going to rely upon the complainant.
The difficulty with the pre-recording of her evidence, particularly where there is such uncertainty as to when this matter will be reached for trial, is that the accused is going to be required to put the entirety of his case to the complainant in cross-examination in proper compliance with the ruling of Browne v Dunn. That's going to occur well in advance of trial, given the uncertainty about possible listing in Launceston and the real uncertainty as to the resumption of trials on the North West Coast, that is going to lead to a situation where the Crown has an unprecedented level of knowledge as to the defence case, which of course the defence is under no obligation to disclose, and a significant period of time to shore up its evidence in response to what is put on behalf of the accused in cross-examination. And that's especially so in circumstances where the accused has already exercised his right to silence when questioned by police it might be less so if there was some obvious defence case already apparent on the papers, but that is not the case. It's my submission that the Crown gains by this process an inappropriate and unfair tactical advantage.
HIS HONOUR: How's it unfair? What that you're losing the element of surprise? borders on permitting the Crown to split its case, given that this is the primary witness, given that there will need to be the defence case fully put to her. It would be different potentially, if we were dealing with the request to pre-record her evidence a week out from trial, that would be entirely different, but the accused does have to call upon in aid of his defence a right to keep his case - well not to be required to put forward his case until the matter reaches trial and until it is then put to the Crown witnesses to give them the opportunity to respond in the ordinary fashion. What is being put here is or what is being sought here is an entirely different and in my submission unfair process for the accused.
MS KER: Yes.
HIS HONOUR: You'd have to give notice of any alibi of course.Unless your Honour has any specific queries arising those are my submissions on the that's a real or illusory forensic advantage unless I have some understanding of how it might be. That might also be self-defeating in that if you tell me how it might be that it also loses the element of surprise but other than that I'm just left to speculate on how it might be.
application.
MS KER: Well your Honour I - I accept that is so and - other witnesses?
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MS KER: Possibly, your Honour. And there would be matters put to the complainant, matters I would be required to put to the complainant in cross-examination that do not currently arise on the Crown papers.
HIS HONOUR: I understand that, but how does it - how is it unfair to your client if the is made. My submission is that what is put here by the Crown and what is relied upon by the Crown in that respect, is not sufficiently unusual or sufficient to justify taking a course that is contrary to the usual way in which evidence is taken on a trial, with a consequential loss to the accused of what I say with respect is a legitimate forensic advantage."
State then has an opportunity to think about it or investigate it?
MS KER: Well this is not, in my submission, the normal manner in which evidence is
taken on a trial or in advance of trial. It's for the Crown to establish that there are
sufficiently good reasons in this -
HIS HONOUR: Well not really because the Act specifically requires me, whether the
Crown applies or not, in a family violence case, to consider whether I should be making
these orders.
MS KER: It does so, yes, but that's a discretion to be exercised judicially. In my
submission there would need to be - there does need to be positive reason to justify that
particular process, all that has been
HIS HONOUR: Does the fact that the legislation specifically deals with family violence
offences, should that lead me to conclude that the Parliament has intended that, at least
it should be a live issue in every family violence case, whether I should make orders of
this nature?
MS KER: Yes I would accept that, however in saying that, your Honour, that is going
to the entirety of the question of the special witness declaration. There is nothing more
specific as to the question of pre-recording. It would've been open to Parliament to
legislate that a pre-recording be automatic in the case of a special witness declaration
being made. Parliament has chosen not to do so. It's a question for your Honour then as
to what particular orders are appropriate -
HIS HONOUR: Yes I understand.
72 It is apparent that while his Honour was informed a special hearing would create a "forensic disadvantage" to the appellant because the appellant would be required to put the entirety of his case to the complainant in cross-examination and, in this way, would lose the element of surprise, counsel did not further assist the trial judge by identifying any specific forensic disadvantage. The trial judge observed that it was difficult for him to determine whether the suggested forensic advantage to the Crown was "real or illusory", but no further assistance was forthcoming.
73 In response to the appellant's submissions, that the Crown would be given an opportunity to bolster its case, counsel for the Director of Public Prosecutions (the Director) told the trial judge the Crown would not recall the complainant to give further evidence:
"In my submission, anything that's raised in cross-examination could only largely be fixed by re-examination, which is obviously done in the usual course live while the pre- recording is being done. We would not, because of the nature of [the complainant's] position, because of her reaction to this process, because of her wish to have this done, we would not recall her as a witness again, even if investigations into things raised in cross-examination led to a belief that we ought to. The priority, as is enshrined in the legislation, is to have these pre-recordings relieve a special witness of the continued fear of having to give evidence in proceedings."
74 The trial judge weighed the competing factors and submissions, and paid careful attention to the primary argument for the appellant based on forensic advantage being gained by the Crown. His Honour was correct in finding that there were "strong reasons" in favour of ordering a special hearing. His Honour was also correct in finding, "as a matter of principle", that the loss of the element of surprise
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did not carry much weight in the particular circumstances under consideration. The legislature has determined that, in appropriate circumstances, the public interest favouring a special hearing should prevail over the interests of the accused in not being required to cross-examine witnesses before a jury is empanelled.
75 On the material before the trial judge, as Estcourt J found, the ruling was "unimpeachable and the order his Honour made was entirely orthodox".
76 The critical question for this Court is whether, through no fault of the trial judge, his Honour's ruling resulted in a miscarriage of justice by reason of the way the evidence subsequently unfolded and was left to the jury. The cause for change in the course of evidence began with the cross-examination of the complainant about matters in respect of which the trial judge had no information at the time of the ruling, and could not reasonably have anticipated.
77 During examination, the complainant was asked when her relationship with the appellant concluded, and she responded "June 2019". The complainant also gave evidence of communication with the appellant after June 2019:
"Q
Earlier in your evidence you said that your relationship with Mr Gee concluded in June of 2019. After the time that you see your relationship with Mr Gee as concluding did you communicate with Mr Gee about things that had happened in your relationship?
A Yeah, we talked about it. Q Did some of that communication include text messages that you sent to Mr Gee? A Yeah.
Q At some of the text messages or one of the text messages that you sent to Mr Gee
did you later provide that to somebody else?A I sent it to Sue. Q Do you remember as a rough estimate when you did that? A No.
Q If I can have the witness shown the photographs that commence with photograph
22. Ms Batchelor, if I can get you to turn to photograph 23 in that series?A Yeah.
Q Do you recognise the text - as in not the text message but the content of the
message that's shown in grey in photograph 23 and photograph 24?A Yeah.
Q Can you explain what that message is? A Me telling - me telling Brad that I will always love him (indistinct) the things that
have happened in our relationship."
78 Later in examination the complainant gave evidence that after an incident in June 2019, the appellant spent a period away from her, and after his return she and the appellant kept talking and seeing each other, trying to work things out. She said they talked about problems in the relationship, how this would change and "it was going to be okay". They talked about the anger and trust issues, and the violence, and the appellant said he would change. An incident occurred, the details of which were not given in examination, as a result of which the complainant spoke to police.
79 According to the complainant, at the time of speaking to police her state of mind was "not good". She said she was not coping with not driving the appellant around, and it was like "grieving for someone that had passed away but he was very much alive. I just couldn't talk to him or see him."
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80 During cross-examination, apart from an incident involving a torch which counsel suggested to the complainant struck her on the head by accident, it was put to the complainant that the episodes of violence she had described did not occur. Following cross-examination about various incidents, counsel asked the complainant whether she considered that the relationship concluded in June 2019, to which the complainant responded:
"If you're asking me if I still love him, the answer is yes."
81 The complainant was asked when she last had contact with the appellant, and she answered "don't remember". She said the appellant sent a letter to her before Christmas, and the letter she sent in reply before Christmas was the last occasion on which she had contact or communication with the appellant. The complainant agreed she saw the appellant in court since that time and it "broke my heart". She agreed she attended at the Magistrates Court when the appellant was sentenced, and waited in the foyer of the waiting room for the purpose of seeing the appellant.
82 Following that cross-examination, counsel commenced showing a number of letters to the complainant. Counsel began the line of questioning by suggesting to the complainant that she had written to the appellant on a number of occasions during 2020 (while the appellant was in custody), to which the complainant responded "yes". Cross-examination followed concerning the contents of letters from the complainant to the appellant, dated 16 March 2020, 27 March 2020, 14 April 2020, 10 May 2020, 4 June 2020, 20 June 2020 and 16 July 2020. The existence of those letters directly contradicted the complainant's earlier evidence that her letter before Christmas was her last communication with the appellant.
83 The cross-examination then moved from letters to telephone contact. Asked if she had contact with the appellant by telephone since 29 August 2019, the date of the complainant's statutory declaration taken by police, the complainant responded, "there was a couple of calls yeah". The complainant agreed she would be at the appellant's brother's residence and the appellant would ring at a pre-arranged time. Asked if this was an effort to circumvent the terms of a family violence order, the complainant responded "I wanted to make sure he was okay". The cross-examination continued:
"Q Well, I suggest to you Ms Batchelor, given the content of those letters, it was a
good deal more than that?A I didn't say that there, still feelings for him. I didn't deny that at all. Q Well I suggest, Ms Batchelor, this is more than simply still having feelings for
him, this is continuing the relationship with him?A Yes it looks that way. Q
Ms Batchelor, you said earlier in your evidence that the last contact you had had with Mr Gee was a letter sent by you in response to one sent by him before Christmas. That was a lie wasn't it?
A Yes.
Q So you have lied to this court? A I didn't want to bring that up because he'd said that he didn't want me to mention
the letters.Q You have lied to this court when you stated that the last contact you had with
Mr Gee was before Christmas, haven't you?A (inaudible) lie about that, yeah."
84 During re-examination, the complainant said she decided to make the statutory declaration to the police "because I wanted him to stop". When she made the first statement she was hoping the appellant would "stop being so angry and back up a bit", and when he did not do so, "it was just getting a bit beyond a joke and that's when I made the other ones". The complainant acknowledged the letters
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and her expressions of love, and positive sentiments about the appellant and his relationship to her son,
and then gave the following evidence:
"Q Are you able to explain to the Court how these things are reconciled for you? How
you still feel like this for Mr Gee despite what you've told the Court today?A It was - it was real for me. When we got together I said to Brad that, you know, you're in it for the long haul or we may as well not do it, because I'm not going back and forth, you know, and I do - obviously - still love him a lot and I think that - I mean part of me feels bad for him because if he'd made - if he'd been redirected years ago when he first had his very first encounter with the law, he wouldn't be here today. You know, he probably would have got put back on the right path and if things weren't just pushed under the carpet. I feel guilty because everybody needs somebody and I want - I want to be there for him. I tried to help him when we was together and I want to be there for him now, but I –"
85 Further re-examination then occurred concerning individual statements in the letters which it is
unnecessary to canvass.
86 The evidence of the complainant at the special hearing concluded on 28 July 2020. The proceedings resumed in October 2020 with a directions hearing concerning an application by the Crown to lead evidence of recorded telephone conversations between the complainant and the appellant, while the appellant was in custody (the Arunta calls). The content of those calls was relied upon by the Crown as containing admissions by the appellant of violent conduct toward the complainant, and as post- offence conduct of the appellant revealing a consciousness of guilt. In addition, the Crown sought to rely upon the content of the calls as "corroborative of the complainant's evidence" in the form of prior consistent statements admissible pursuant to s 108 of the Evidence Act 2001.
87 Evidence was taken on a voir dire examination concerning the Arunta calls which revealed that at least one of the calls was detected by prison staff in December 2019, and was reported to the State Intelligence Service of Tasmania Police at that time. It appears the notification occurred on 19 or 20 December 2019. In addition, an officer of the Tasmania Police Family Violence Unit requested the Arunta calls in March 2020. The request was made to the State Intelligence Service, but the records did not show whether the request was ever fulfilled.
88 Speaking broadly, the "State" was aware of the Arunta calls at the time they occurred through knowledge within the prison service. Some of that knowledge was passed to the State Intelligence Service of Tasmania Police in December 2019. The Family Violence Unit of Tasmania Police became aware of the Arunta calls, it appears in December 2019, but at the latest the Family Violence Unit was aware of the calls in March 2020 when an officer of that unit requested the calls.
89 The Director was not aware of the existence of the Arunta calls until the complainant gave evidence under cross-examination on 28 July 2020. However, both the complainant and the appellant were aware of the calls, and of the fact that the calls were recorded. At the commencement of each call the operator advised that the call originated from an inmate at Risdon Prison, and that the conversation "is subject to monitoring and recording". In addition, during the call of 18 December 2019, the appellant told the complainant she needed to be careful about what she was saying on the phone line because, if she did not turn up to court, "they" would obtain the calls and play them in court. Later in the same call, the appellant repeated that if the complainant did not answer her phone or did not turn up to court:
"... the first they're gonna do is go through all my phone records, who I've been calling, how long I've been calling for and they're gonna sit there and listen to the recordings. Because it's recorded. This is the sort of stuff we need to talk through by ourselves. Which is safe to, it's going to be safe to. Okay?"
90 During submissions opposing the admission of evidence concerning the content of the Arunta calls, counsel for the appellant identified the "overarching issue" as one of "late disclosure". Counsel
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pointed out that the cross-examination as to the calls was very brief and limited to the fact of calls having occurred. The submissions later moved to the forensic disadvantage occasioned by the late disclosure of the Arunta calls. Counsel put to the trial judge that forensic decisions were made to explore the issue with the complainant "based on what the Crown case then was". Counsel continued:
"To put it quite bluntly had we known what was going to be behind that door it's
potentially one that wouldn't have been opened."
91 It was the trial judge who then raised, for the first time, the possibility of alleviating any unfairness by permitting the complainant to be available for further cross-examination. Counsel for the appellant was plainly taken by surprise, and reminded the trial judge that during the special hearing application, the strong position taken by the Director was that the Crown would not recall the complainant following cross-examination in a special hearing. The following exchange then occurred:
HIS HONOUR: But here we are now and I'm going to be asked – I'm being asked to make rulings about where the fairness lies – that's what it boils down to – for all of this. What I'm indicating to you is that if you, if you – if you get a chance to cross-examine
the complainant about the calls, what has already been let out of the bag and so forth, that wouldn't have been on your case, had you known about those calls before you
cross-examined as you did – does that make sense?MS KER: Your Honour, yes, I, I follow and there may be two aspects to that, one being what was asked on the special hearing that wouldn't have been asked, and the second being what is likely to be asked in the event she is recalled. I don't know if your Honour's particularly concerned about the latter.
HIS HONOUR: No, correct, yeah. It's the first I'm concerned about.
MS KER: Your Honour, that's always a difficult question to answer. Certainly there
would have had to be a – there would have had to have been further consideration given
to the question of whether the, the letters were put to her because your Honour has already, and I should say, your Honour has already identified implicitly the forensic
disadvantage that flows to the accused from tendering those documents. That entire – if it were the situation that I – defence – opening up in cross-examination the question
of the nature and extent of communication between the complainant and the accused post-offence, that by opening up that area, the State is then able to put forward the calls in circumstances where they were not otherwise able to do so, then I don't know and Ican't I wouldn't have done, but I would have had to consider –
HIS HONOUR: Whether to tender those documents, could I cure that by a direction is
– is the order of addresses in the code subject to me ordering to the contrary?
MS KER: It is your Honour.
HIS HONOUR: Uh huh.
MS KER: So there – there is that aspect and your Honour has identified that that
potentially, can be cured but my concern is that, to the extent that the admission of this material and this is perhaps going more to the third basis of it initially, to the extent that
it is admissible as rebuttal, had I been aware of the existence of the material, I – I can'tI wouldn't have put to the complainant, that her account was not true because that was clearly necessary, but certainly in terms of comment that she had made to the accused following the alleged commission of the offences, none of that potentially, would have been opened up.
HIS HONOUR: So no – no post offence communications, you would have opened up,
do you say?
MS KER: Well I - I'm not for certain –
HIS HONOUR: You don't know, no, no – I follow -MS KER: But that – that would have been potentially a legitimate forensic decision to
have made and it's a decision that I have not been able to make in possession of all of
the information because of the way in which it has emerged following the – following
the special hearing."26 No 1/2022
92 Counsel for the appellant also emphasised that the material was in the possession of the State, and is the type of material that "routinely arises in cases involving family violence allegations where an
accused person is in custody it should hardly be – it should hardly come as a surprise to experienced
officers within the Family Violence Unit that such communication does occur even where there is an order in place prohibiting its contact". It was material available to police, and there was no explanation as to why it was not investigated earlier.
93 Before the trial judge, the Director maintained it would not be unfair to admit the evidence without recalling the complainant. However, counsel indicated that if the decision of the trial judge to admit the calls as evidence was conditional upon the recall of the complainant, she had instructions to do so.
94 At the conclusion of submissions, the trial judge delivered ex tempore reasons for allowing the evidence to be led. His Honour's reasons are set out in full in the reasons of Estcourt J at [15].
95 The complainant was recalled before the jury and gave evidence about the content of the calls, and the understanding conveyed in the calls between her and the appellant. She also explained the references in the conversations to victims of crime compensation.
96 The cross-examination was not limited to the Arunta calls. The complainant agreed she attended at the address of the appellant's brother in order to use his phone for contact with the appellant. She agreed she did not disclose to police the existence of the calls, and explained her failure on the basis that she had been told not to tell anybody about the calls. The complainant also agreed she did not tell the witness assistance officer about the telephone contact. Nor did she disclose the calls to any officer of the Director.
97 The content of the calls provided a basis for cross-examination of the complainant concerning a motive to make false allegations about the appellant. She agreed she believed the appellant had been unfaithful to her, and was frustrated and disappointed. She denied being angry. The complainant agreed that after she made her statements, the police said that if she pursued her relationship with the appellant, they would involve Child Services. She denied holding a belief that she would receive more victims of crime compensation if the appellant was convicted, but agreed she had made a statement to that effect to the appellant.
98 In re-examination, the complainant said it was the appellant who told her not to tell anybody about the telephone calls.
Discussion
99 In summary, the following facts demonstrate the difficulty for the appellant in establishing that a miscarriage of justice has occurred:
On the material before the trial judge, his Honour's ruling in favour of a special hearing was correct. At the time of the special hearing, the appellant was aware that the Arunta calls had been recorded.
At the time of the special hearing, counsel for the appellant was aware that telephone calls had occurred between the appellant and the complainant after 29 August 2019 (the date of the complainant's statutory declaration taken by police). Counsel was aware the complainant had attended at the residence of the appellant's brother to receive the calls.
At the time of the special hearing, and when cross-examining the complainant about the existence of telephone calls occurring after 29 August 2019, counsel for the appellant was aware that the Crown had not disclosed any material related to the telephone calls, and had not led any evidence- in-chief concerning the calls. With that knowledge counsel chose to ask the complainant whether any contact had occurred by telephone since 29 August 2019, but not to ask about the content of the
27 No 1/2022
calls. This was a forensic decision made in circumstances where the appellant was aware that the
calls had been recorded.
The purpose of the cross-examination at the special hearing was to contradict the evidence of the complainant that the relationship ended in June 2019. Through the Director being unaware of the calls, counsel was able to cross-examine the complainant without forewarning to the complainant that the existence of the calls would be a topic of cross-examination. Prior to the special hearing, if the Director had been aware of the existence and content of the telephone calls, not only would the evidence have been disclosed to the appellant, it would have been led as part of the Crown case through the complainant. In that event, the appellant would have lost the element of surprise when cross-examining the complainant at the special hearing. Further, the complainant would not have lied to the jury about her last contact, a lie upon which the appellant relied to undermine the complainant's credibility. The appellant, through counsel, having chosen to ask about the calls, alerted the Director to the possibility of evidence of which the Director was unaware. As a consequence, reliable evidence of significant probative value was obtained. The interests of justice strongly favoured the admission of such evidence at the trial before the jury. If a special hearing had not been conducted, and the complainant's evidence had been taken in the trial before the jury, the Crown would have been entitled to seek an adjournment to obtain instructions for re-examination, and to investigate and lead evidence of the content of the calls. Prior to the special hearing, the "State", through Tasmania Police, was aware of the existence of the Arunta calls, but not the content of those calls. Only the appellant and the complainant were aware of the content of the calls, and the complainant had not informed Tasmania Police or the Director about the calls. Although the calls were recorded, there is no evidence that any person in authority had listened to the calls or was aware of the content of the calls. The circumstances under consideration demonstrate that this is not a case in which the Crown, aware of relevant evidence of which an accused person was unaware, failed to disclose such evidence. Better investigation would have revealed the existence of the relevant evidence, namely, the content of the telephone calls, but it was the appellant and not the Crown who was aware of that content prior to the commencement of the special hearing. In the trial before the jury, the Crown sought to lead evidence of the Arunta calls without recalling the complainant to give further evidence. It was the trial judge who, for reasons of fairness to the accused, ruled that evidence of the calls could only be led if the complainant was recalled. Counsel for the appellant had ample opportunity to obtain instructions and prepare for further cross- examination of the complainant concerning the calls. The further cross-examination of the complainant emphasised the lies told by her, including lies on oath. The evidence of the content of the Arunta calls was not unfairly prejudicial, or of doubtful reliability or weight. Such content was highly probative as admissions by the appellant of violent conduct against the complainant, and as post-defence conduct of the appellant demonstrating a consciousness of guilt of violent conduct by the appellant against the complainant. It was also significant as evidence of prior consistent statements by the complainant, admissible pursuant to s 108 of the Evidence Act for the purpose of re-establishing the credibility of the complainant. 100 The public interest in ensuring that all probative evidence is placed before a jury strongly favoured allowing the evidence to be led. Analysis of the circumstances demonstrates that for the purposes of disclosure, although police were aware of the fact of the calls, the Crown in its wider form was not aware of the content of the calls. This is not a case in which the prosecution failed to disclose relevant evidence of which the appellant was unaware. It was the appellant who knew not only that the calls had occurred, but that the content might be relevant to the case against him and could be proven by production of recordings.
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101 Further, the appellant's argument that unfairness has resulted from the conduct of the special hearing faces the inevitable difficulty that if the issue of the telephone calls had first been raised in the presence of the jury during cross-examination of the complainant, the same result is likely to have ensued. It is likely that the prosecution would have obtained an adjournment to seek instructions for re- examination, and to conduct investigations concerning the Arunta calls.
102 The trial judge carefully considered the competing interests and, correctly, admitted the evidence. No basis has been demonstrated which would justify interfering with that decision. The admission of the evidence did not cause unfairness to the appellant. Nor did it result in a miscarriage of justice.
Unsafe verdict
103 I agree with Estcourt J that it was open to the jury to find, notwithstanding admitted lies told by the complainant, that her evidence as to the violence by the appellant was both truthful and reliable. In addition, I emphasis the following:
Despite the admitted lies, I found the evidence of the complainant impressive. She was frank and responsive, and readily acknowledged her ongoing feelings for the appellant. The complainant's evidence spoke eloquently of the well-known dilemmas faced by female complainants in difficult situations of violence perpetrated in domestic circumstances.
The complainant's essential evidence concerning the violence was strongly supported by independent and objective facts, and by other witnesses with whom the complainant communicated.
Statements by the appellant in the Arunta calls also provided strong support for the complainant, and provided positive evidence of admissions of violence and of the appellant's consciousness of guilt.
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