Gerald Mitchell[1] v The Queen
[2016] VSCA 197
•11 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0069
| GERALD MITCHELL[1] | Applicant |
| V | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, WHELAN and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 July 2016 |
| DATE OF JUDGMENT: | 11 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 197 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v Mitchell (Unreported, Victorian County Court, Judge Parrish, 8 March 2016) |
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CRIMINAL – Appeal – Conviction – Indecent act with child under 16 – Whether verdict unsafe and unsatisfactory – Whether evidence of very young complainant fundamentally contradictory – Whether evidence of older sister undermined in cross-examination – Relevant passage in cross-examination to be assessed as a whole and in light of all the evidence – Conviction reasonably open to jury – Application for leave to appeal refused.
CRIMINAL – Appeal – Conviction – Evidence – Cross-examination – Breach of rule in Browne v Dunn (1893) 6 R 67 – Failure to put to witnesses account to be given by the applicant – Inability to recall witnesses – Trial judge accepted submission of defence counsel that no direction should be given – No direction given to jury to redress unfairness to prosecution – Jury question – Whether question revealed that issue of ‘fairness’ had arisen in jurors’ minds – Answer given by trial judge agreed upon by counsel – No exception taken by defence counsel – No application to discharge jury – No miscarriage of justice – Leave to appeal granted – Appeal dismissed – R v SWC (2007) 175 A Crim R 71 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Tony Danos Lawyers |
| with Mr B W Johnston | ||
| For the Respondent | Mr C B Boyce SC | John Cain, Solicitor for Public Prosecutions |
MAXWELL P
WHELAN JA
McLEISH JA:
The applicant is in his mid-40s and is the father of two daughters. He and their mother separated in mid-2014. The separation was amicable. It was agreed that the two girls would reside with their mother during the week and stay at the applicant’s separate residence on the weekends.
On the evening of Saturday 21 February 2015 the two girls were staying with their father as usual. At that time the older daughter (referred to as ‘AA’) was 11 years old and the younger daughter (referred to as ‘AB’) was four years nine months. The applicant had been drinking alcohol during the day. The applicant gave the younger girl, AB, a bath and then led her into the lounge room. A short time later AB was naked on a lounge chair and the applicant was kneeling in front of that chair. What he was doing was the central controversy of a six day trial in the County Court on a charge that the applicant had wilfully committed an indecent act with or in the presence of AB, a child under the age of 16, by licking her vagina.
Both of the applicant’s two daughters maintained that the applicant had licked AB’s vagina. The applicant maintained that that had not occurred and that what he had been doing was mucking around with her, giving her ‘burpees’ or ‘raspberries’, playing a game he referred to as the ‘Cookie Monster’, and blowing on her body and, in particular, on her stomach or ‘tummy’. What was eventually put to the jury on behalf of the applicant, in substance, was that the younger daughter’s evidence was too uncertain, and in certain respects too fantastic, to be believed; and that the older daughter had contradicted herself in that she had said that she could see what was occurring but had also agreed in cross-examination that in fact she could not see. In the accused’s evidence, he described what had happened as a ‘terrible mistake’.
In addition to the evidence of the two daughters, the prosecution also relied upon evidence that both daughters had reported the incident to their mother on their return home on Sunday 22 February 2015 and that the younger daughter had told her pre-school teacher that ‘daddy licked my ‘gina’ at pre-school on Wednesday 25 February 2015.
The applicant was found guilty by the jury on 9 February 2016. Following a plea on 11 and 22 February 2016 he was sentenced on 8 March 2016 to a term of imprisonment of 12 months to be followed by an 18 month community correction order.
The applicant now seeks leave to appeal his conviction on the following grounds:
(1)The guilty verdict of the jury is unsafe and unsatisfactory.
(2)A substantial miscarriage of justice has occurred as a result of a combination of events within the trial relating to the applicant’s defence, that he was ‘doing raspberries/burpees’ on the complainant.
Review of the trial
Evidence of AB
Victoria Police conducted a Visual and Audio Recording of Evidence (‘VARE’) with AB commencing at 1:05 pm on Monday 23 February 2015. After the usual preliminaries, and being referred to an earlier conversation, when asked what her father had done she replied: ‘He licked my bum’. Shortly afterwards she said: ‘[AA] saw daddy licking me’. When asked what part of her body her dad was licking she replied: ‘’gina’. When asked where that was she pointed to her vagina.
AB was questioned at a special hearing on 13 October 2015 and on 2 November 2015.
At the special hearing, in the course of questioning by counsel for the applicant, AB repeated the assertion that the applicant had licked her ‘bum’ or ‘’gina’ on several occasions. But she also gave details of the incident which were inconsistent with her sister’s account, some of which could not possibly have been true. She suggested that her mother was present at or shortly after the relevant time; and she described her sister hitting her father and her father hitting her sister and her, things which both her sister and her father said did not occur. Whilst she initially described the incident (however characterised) as having taken place in the lounge room, which was consistent with the evidence of both her sister and her father, later in the special hearing she said things which suggested that the incident had happened in the bathroom, and in the bedroom. At the end of her re-examination she said the incident was in the lounge room but she then described the incident as occurring whilst she was standing and before her bath, which again conflicted with both her sister and her father. She described her father crying and being angry, which were also matters inconsistent with the evidence of both her father and her sister.
We have watched the VARE and the special hearing of both AA and AB, as well as reading the transcript. At the time of the special hearing AB was five years old. In the course of the questioning on the special hearing AB often appeared to be distracted. On many occasions she indicated, either by asking ‘what?’ or by the answer which she gave, that she did not understand what she was being asked. AA was 12 years old at the special hearing and appeared to comprehend the process and understand what she was being asked.
Evidence of AA
A VARE was conducted with AA commencing at 11:47 am on Monday 23 February 2015. She gave the following account of what had occurred:
Well, on Saturday — yeah, Saturday night dad was really drunk and he — he put [AB] in the bath. And then when they got out I heard stuff going on outside. Like, they walked out and then did some stuff out — like, I think they were just, like, drying her hair or something. And then when — I heard — then I heard either laughing or crying. I wasn’t sure if [she] was laughing or crying and screaming. So I went out, like, thinking that it was laughing and I wanted to join in on what they were doing and, like, having fun, you know and — — —
…
Then I saw dad and I saw [AB] laying down on the couch — on, like, a chair like this, just, like, sideways and then dad kneeling on the ground. And I saw dad licking [AB’s] vagina. And, yeah, I saw — and then I just grabbed [AB], I said, ‘What are you doing?’ and I — I just — I just keep, like, remembering this. He said — I don’t know, something really weird, and then — so I grabbed [AB] and then I ran into her bedroom. I put — she was, like, totally naked. Then I put a nappy on her and a singlet and she slept with me for the night until dad came in again and dad took [AB] into her own room. And then I think dad just went to sleep on, like, the chair watching a movie or something. Yeah, that’s all I remember last night — I mean, on Saturday night.
She described encouraging her younger sister to tell her mother what had happened when they returned home on the Sunday.
When asked about what she had been doing prior to the incident she said that she had been in her bedroom, and that she had left her bedroom because of the noises which she had heard. She assumed that their father was tickling AB, but when she went out of her room she had been ‘horrified and scared’ by what she then saw happening. She said that her younger sister was crying and screaming.
She said that she ‘immediately [knew] what was going on’. She said: ‘I just saw him, like, licking her vagina’. She said that she grabbed AB and that her father looked up at her ‘kinda … scared … kinda worried’. She said that she had asked him what he had been doing and that he had said he didn’t know and that this was ‘really weird’.
She said that she did not sleep well that night. She said she had asked AB what had happened and that she had told her that ‘Daddy was licking and sucking my vagina’.
AA said that the next day, Sunday, she felt a bit scared because of what had happened but also because she did not want to get her father into trouble. When asked why, she responded: ‘Because I love him, and I just didn’t want him getting in trouble’. When asked about her father’s behaviour on the Sunday she said that it had been normal and that she did not think he had remembered.
AA’s special hearing was on 2 November 2015.
When cross-examined by counsel for the applicant she was asked in detail about what she had heard prior to going into the lounge room. She said that when she came out of her room she assumed that what she was hearing was laughing but as she reached the lounge room she realised that it was crying, and what she described as ‘a screaming type crying’. Defence counsel pressed her on that description. It was suggested to AA that the crying was the sort of noise that people make when being tickled, when they are ‘half-hysterical from laughing’, to which AA said ‘Yep, it was – yeah’. Counsel then suggested it was possible it was ‘just [a] laughing hysterically sort of noise’. AA replied that ‘it wasn’t laughing’ because she could see that AB was ‘scared and so by then I knew it was like crying and she … was crying actually like tears and all that’.
AA was asked to describe the position in which she had been standing when she came into the lounge room. Her description of her position indicated, by reference to photographs, that she was very close to her father and her younger sister, close enough to reach out and touch them if she had wished to.
In response to questioning about the position of her father’s head she agreed with a suggestion put to her by counsel for the applicant that her younger sister’s torso and her thighs made a ‘V’ sort of shape and that that was where her father’s head was. She agreed that his head was in the ‘V’ of her body.
AA agreed with the suggestion put to her that her father’s head was hiding the lower part of her sister’s torso from her view and that her father’s head was hiding from her view the area around her vagina.
The passage in AA’s cross-examination at the special hearing, which was especially relied upon by the applicant in this application, occurred after she was questioned about what AB had told her. Counsel for the applicant then said that he was no longer asking about what her sister had told her but about what she saw. The following interchange then occurred:
You’ve described where you were and where the chair was and where [AB] was and where your father was and so on.
You’ve said already that his head was covering the part of her body from about her naval or her bellybutton to the top part of her thighs? — — — Yeah.
So you couldn’t see that part of her body? — — — Um yeah. I — I could see it like a little bit but not that clearly ‘cause his head was mostly in the way.
Probably close to right in the middle of that area would be where her vagina was? — — — Yeah.
So that’s, I’d suggest to you, something that wouldn’t have been visible to you; you agree with that? — — — Yeah.
So necessarily you couldn’t have seen your father licking her vagina, could you? — — — Well, I could like — I could see it a little bit but like what — while his head was back, like a little bit, but I could see some of the — like vagina. I could see his tongue but I couldn’t really make out the bottom bit, like, I don’t know, it’s kind of hard to explain. Oh, um — — —
HER HONOUR: Just try and take it slowly, [AA]. Tell us exactly what you could see? — — — Um I could see like ah some of the vagina and the tongue but ah I couldn’t — yeah, it’s — yeah, that’s pretty much all I could see.
[COUNSEL]: So would you agree that you couldn’t see him licking her vagina, could you? — — — Ah no, I could see a little bit, like um his head was covering her vagina but I could like see his tongue like licking but I couldn’t see the vagina, kind of — — —
HER HONOUR: Where could you see the tongue licking? — — — Um I don’t — I just remember I could see the tongue licking ah but had — no, I think I could see the vagina or not. I — I just don’t really know.
[COUNSEL]: All right. [AA], I take it, it was a pretty scary thing because you had seen something that frightened you; is that right? — — — Yeah.
You thought what you saw was you — you took the view or you believed that your dad was doing something bad to your younger sister? — — — Yeah.
Is that really what you’re saying? — — — Yep.
Yes and you had — you asked your sister as soon as you got to your room what your dad was doing to her? — — — (Witness nods.)
Yes and it was difficult to remember quite what she’d said to you? — — — Yep.
Yes and that’s why you gave the answer you did to the police officer, is that right? — — — Yep.
Yes, okay and you couldn’t see the vagina but you were concerned that that’s what your dad might have been doing, was licking her on the vagina? — — — Yeah.
Yes. But you couldn’t actually see that? — — — Nah, I, um — no, I couldn’t, like I knew that was what was going on but I couldn’t really — I couldn’t, ah, see it clearly, but, ah, yeah, that’s — yeah.
Okay. Is it fair to say this, you tell me honestly what you say and you don’t have to agree with me, but you were frightened that something sexual was going on? — — — Yep.
Okay. You couldn’t actually see anything sexual going on but you were frightened that’s what was happening? — — — Yep.
All right, that’s got two parts to it and perhaps I should separate it out a little bit. Do you agree that you couldn’t actually see anything sexual going on? — — — Ah, well — well, yeah.
Okay, but you were concerned that something sexual was going on? — — — — Yeah, I was — I was pretty sure that something sexual was going on but I wasn’t certain about it.
In re-examination at the special hearing AA confirmed that she was close enough to have reached out and touched AB’s legs. The following interchange then occurred:
You’ve said that your father was licking [AB’s] vagina? — — — Yeah.
You said you could see his tongue; is that right? — — — Well, um he was like kind of — like his head was moving around a bit so like I could see some bits of like — ah it was really quick. Like I couldn’t really see that much but I just — he was like moving and licking it. I could see what was going on.
A little later the following interchange occurred:
When he was moving his head like that you said something about you could see his tongue. How much of his tongue could you see? — — — Um just like the tip of it, not like — not much. It — not much.
Could you see the tip of his tongue touching any part of [AB’s] body? — — — Ah yeah, I could like it was kind of going like up and down, um yeah.
Where on [AB’s] body? — — — Ah just on her vagina, yeah.
Other evidence relied upon by the prosecution
The mother of the two girls and the pre-school teacher gave evidence which we have previously summarised. The informant also gave evidence.
Evidence of the applicant
The applicant gave evidence which in almost all respects, save for the critical one, accorded with the evidence of AA.
When asked what had happened after AB’s bath he said they went into the lounge room and onto an arm chair, as AA had described. When asked what he did he said: ‘Just mucked around with her, just gave her [s]ome burpees, if you will’. He said that he also played a game which he referred to as the ‘Cookie Monster’ and that he was blowing on her body, on her tummy and on her stomach.
He agreed that AA had come in and had said to him ‘Dad, what are you doing?’, and had then ‘grabbed’ AB and ‘took off’. He said that he had said to AA ‘you’re acting weird’.
As to the allegation that he had licked or sucked AB’s vagina he said: ‘It’s not true. It’s not true. I couldn’t even see her vagina. You couldn’t even see it; it was hidden. Didn’t happen’. When asked to respond to the allegation that he had had his tongue out near that part of AB’s body he said: ‘No. No. Terrible mistake. It’s destroyed my life’.
The first issue raised with the applicant in cross-examination was whether he had heard anything put to AA or AB when they gave evidence to the effect that he had been playing and giving AB ‘burpees’. He agreed that he had not. When asked whether he had instructed his counsel that that is what he had been doing he said that he had, and that that had been ‘mentioned right from the start’.
He was then cross-examined about why he had not explained to AA on the night that they were just playing and doing burpees. He said that he had not thought that anything was awry.
The applicant’s cross-examination was not complete when the court adjourned for the day. When the hearing resumed the following morning counsel for the applicant raised, in the absence of the jury, what he referred to as the ‘Browne v Dunn questions’. This was a reference to the obligation which a cross-examiner has to put to a witness matters in his or her case which are inconsistent with the evidence of the witness, an obligation often referred to by reference to the case of Browne v Dunn.[2] The judge said that he had been going to raise the same issue, and said he wanted to hear submissions about the issue of ‘fairness’ and about any inferences to be drawn in relation to recent invention. The judge suggested the possibility of witnesses being recalled. The prosecutor indicated that he had not put recent invention and that he had been careful not to do so. It was then determined that the matter should be addressed at the conclusion of the applicant’s evidence.
[2](1893) 6 R 67 (‘Browne v Dunn’).
The cross-examination concluded shortly thereafter. There was no re-examination.
The Browne v Dunn issue is addressed
As soon as the applicant’s evidence concluded the jury retired and the judge began hearing submissions about the fact that nothing had been put to either of the daughters about playing or doing ‘burpees’. The prosecutor submitted that ‘the most important issue in the case was never put to them’.
Counsel for the applicant maintained that there had been no breach of the rule in Browne v Dunn. He referred extensively to the long passage in AA’s cross-examination which we quoted earlier and submitted that AA had conceded that she had not been able to see what was happening and that once she had done that it was unnecessary to put to her that her father had been doing burpees ‘because she has agreed to the proposition she didn’t see the licking of the vagina’. He submitted that the evidence in the passage relied upon at the special hearing ‘obviates’ what she had said in the VARE. He submitted as to the issue of ‘burpees’:
It’s not relevant if she concedes that she didn’t see the licking of the vagina. As soon as she concedes that, her evidence is finished. She has conceded the issue. Why would I cross-examine her further? She has agreed with our propositions. There’s nothing to put to her.
Counsel for the applicant referred the judge to the fact that material in the depositions indicated that the applicant had maintained to his mother in August 2015 that he had been giving his daughter ‘raspberries on her tummy’. He suggested that an ‘agreed statement of facts’ could be put to the jury so as to preclude any suggestion of recent invention.
The prosecutor made it plain that he would not be suggesting recent invention.
The prosecutor’s submission was that the judge ought to direct the jury that the relevant questions had not been asked because ‘they wouldn’t have advanced the defence case’. The judge referred the prosecutor to the decision in R v Morrow.[3] The judge said that a direction could be made to the effect that the weight of the applicant’s evidence is reduced because of the failure to put the key matter to the complainant and her older sister. The prosecutor persisted in seeking a direction to the effect that the question was not asked because it would not have advanced the defence case. The prosecutor submitted that it was not simply a matter of weight, it was a matter of credibility as well. After making enquiries, the prosecutor told the court he could not recall the daughters because AA was suffering significant psychological disturbance. The trial judge said that a direction such as that sought by the prosecutor would not be appropriate in circumstances where the witnesses could not be recalled.
[3](2009) 26 VR 526 (‘Morrow’).
Up to that point counsel for the applicant had not supported recalling the witnesses. He had submitted that there was no point in recalling AB as it would be a ‘waste of time’ and had submitted that AA should also not be recalled because: ‘I can’t take it any further than I already have’. In the context of the debate then transpiring, counsel for the applicant submitted that the obvious way to rectify the position was to recall the witnesses. Counsel for the applicant continued to maintain that there had been no breach of the rule in Browne v Dunn. When asked what his submission was if the ruling went against him on the question of whether he had breached the rule in Browne v Dunn, counsel for the applicant said there should be no direction given in circumstances where the witnesses ought to be recalled, and he observed that AA ‘perhaps is not available’ but that nothing had been heard concerning AB.
The prosecutor persisted in urging the trial judge that a direction had to be made about the failure to put the key matter to the two daughters. Eventually the prosecutor submitted that if the trial judge thought the witnesses had to be recalled then the jury should be discharged. Counsel for the applicant never sought a discharge of the jury.
These submissions about Browne v Dunn were made on a Friday. When court resumed on the Monday, the trial judge gave a ruling.
The trial judge ruled that the suggestion that what the applicant had been doing was ‘innocent’ was something which ought to have been put to the two daughters and that the rule in Browne v Dunn had been breached. The judge took the view that, on the evidence as it stood, there was no proper basis to infer recent invention. He then addressed the issue of whether a direction should be made addressing the question of ‘fairness’. It seems to us that the direction he clearly had in mind was a moderate direction as to weight of the kind approved by this Court in Morrow. The trial judge ruled that it would be inappropriate for the court to give such a direction. In substance, the trial judge accepted counsel for the applicant’s submission that because the witnesses were not able to be recalled the direction should not be given.
The evidence concludes: recent invention addressed
When the trial resumed, counsel for the applicant indicated to the jury that he did not propose to call any further evidence but that he did propose to read to the jury an agreed statement between the prosecution and the defence. What he read was as follows:
It’s agreed that between the prosecution and defence that on 8 October 2015, the accused … emailed his instructions to his solicitor … concerning the allegation that he sexually assaulted [AB] on 21 February 2015. Included in these instructions was that [AA] be questioned on the proposition that he thinks he was giving raspberries or doing the Cookie Monster on [AB’s] tummy at the time he was alleged to be committing the alleged assault.
A document setting out the agreed facts was tendered as exhibit A.
Addresses and the charge
In accordance with the trial judge’s ruling no reference was made in the final addresses or in the judge’s charge to the failure to put the ‘raspberries/burpees’ explanation to either of the daughters.
In final address counsel for the applicant went in detail through the shortcomings in AB’s evidence, as one would have expected. He described AA as the ‘central witness’ in the prosecution case. What was put to the jury in final address by counsel for the applicant in relation to AA was that she had contradicted herself. Relying upon the cross-examination of AA at the special hearing, particularly the long passage we quoted earlier, he put to the jury that AA had said both that she did see her father licking her sister’s vagina and that she could not see that. It was put to the jury that they could not determine which of those two assertions was correct. There was said to be an ‘absolute contradiction’ in her evidence. Counsel for the applicant told the jury that he did not say AA was a dishonest witness. He accepted that she believed something wrong was going on, but he submitted ‘that doesn’t mean she was right’. In the context of dealing with the applicant’s evidence, counsel for the applicant returned to AA’s evidence, submitting that AA had only had a short time in which to make her observations and that the circumstances were such that she might have had ‘an emotive reaction’. The only reference made to ‘burpees/raspberries’ by the applicant’s trial counsel was almost at the end of his address when he said:
I would have said to you and I don’t know if you’d agree but most parents, if they haven’t done blurters [burpees] or raspberries or whatever you call them on their child’s soft tummy, there’s something wrong with them as a parent.
The jury question
After the jury had retired to consider their verdict, the jury sent a note to the judge which read as follows:
Regards Exhibit A. Prosecution and defence agree that [the accused] directed his solicitor to question [AA] on him giving raspberries or Cookie Monsters on [AB’s] tummy. Then why was this not done?
The judge outlined what he proposed to say in answer and counsel for the applicant agreed with it.
The judge then gave the jury the following answer:
The answer to that is that there may well be a variety of reasons why that was not done. What I say to you and direct you, no adverse inference can be drawn against the accused in respect of that not being done. That’s all I can assist you at this stage about that. Sometimes I know answers aren’t completely satisfactory to you, but that’s all I can say at this stage. So I’ll let you return to the jury room.
The judge sought further comment or submissions after giving that answer. Neither counsel wished to raise anything.
Proposed Ground 1: verdict unsafe and unsatisfactory
Senior counsel on behalf of the applicant focused on proposed ground 2 in the hearing, but it is convenient to deal first with proposed ground 1.
In the applicant’s written case the applicant set out the problems and contradictions in AB’s evidence at the special hearing, to which we have previously referred. It was submitted that any assessment of AB’s evidence would have to give rise to ‘very serious concerns’ about reliability. In relation to the evidence of AA, the focus was on the passage from the cross-examination at the special hearing which we have previously quoted at length. Other passages where AA had said that she had difficulty seeing AB’s vaginal area or the lower area of her body were also relied upon. It was submitted that there was a ‘fundamental inconsistency within [AA’s] evidence, as to whether, she actually saw the applicant licking [AB’s] vagina’.
The same matters were emphasised on behalf of the applicant in oral submissions. It was suggested that there were ‘real issues’ about AB’s evidence given what she said in the special hearing. In relation to AA it was submitted that the jury could not simply leave the answers in the long passage we have quoted ‘to one side’. It was submitted that the jury had to have a reasonable doubt.
The critical consideration in relation to this proposed ground is the passage in AA’s cross-examination upon which the applicant particularly relies.
At the end of that passage AA agreed with a suggestion put to her that she ‘couldn’t see the vagina’ but that she had been concerned that what her father was doing was licking her sister’s vagina. It was put to her that she could not ‘actually see that’ and she said: ‘Nah … no, I couldn’t, like I knew that was what was going on but I couldn’t really ... see it clearly’. She then agreed with a suggestion put to her that she could not ‘actually see anything sexual going on’, and when it was put to her that she was concerned that something sexual was going on she responded: ‘Yeah, I was — I was pretty sure that something sexual was going on but I wasn’t certain about it’.
At other points in the same passage AA had repeatedly said that she could see a little bit of her sister’s vagina and that she could see her father’s tongue (‘I could see it like a little bit’ — ‘I could see it a little bit’ — ‘I could see some of the — like vagina. I could see his tongue’ — ‘I could see like ah some of the vagina and the tongue’ — ‘I could see a little bit’ —‘I could like see his tongue like licking but I couldn’t see the vagina’). In answer to a question from the trial judge she said: ‘I just remember I could see the tongue licking ah but had — no, I think I could see the vagina or not. I — I just don’t really know’.
The passage in the cross-examination relied upon by the applicant had to be assessed as a whole and had to be assessed in the light of AA’s evidence in her VARE and her evidence in re-examination.
Another aspect of the relevant passage in the cross-examination of AA, which was open to have been seen by the jury as significant, was the applicant’s counsel’s description, which he put to AA and with which she agreed, that the applicant’s head was ‘covering the part of [AB’s] body from about her navel or her bellybutton to the top part of her thighs’. As the applicant’s counsel said when putting that position to AA: ‘Close to right in the middle of that area would be where her vagina was’.
Our conclusion is that this ground is not reasonably arguable.
In our view it was open to the jury to accept AA’s evidence and to conclude that she maintained throughout that she saw her father licking her sister’s vagina, whilst being prepared to concede she had an obstructed view, that obstruction being her father’s head which was right in the middle of the area where her sister’s vagina was. Further, the matters put to AA as to the position of her father’s head were open to be seen as not only consistent with what AA said her father was doing but as inconsistent with the subsequent explanation given by the applicant of doing ‘burpees’ or ‘raspberries’ or blowing on AB’s tummy. Finally, whilst AB’s evidence had many difficulties associated with it, she did repeatedly assert that her father had licked her vagina; to her sister on the night, to her mother the next day, in the VARE and to her pre-school teacher within a few days, and at the special hearing. The jury were not bound to entirely disregard that.
In our view it is not arguable that the jury was bound to have a reasonable doubt about the applicant’s guilt.[4] We would not grant leave to appeal on this ground.
Proposed Ground 2: Browne v Dunn
[4]Libke v The Queen (2007) 230 CLR 559, 596–7.
Submissions
In relation to proposed ground 2 it was submitted on behalf of the applicant that, as circumstances evolved, the issue of ‘fairness’, to which the judge had specifically determined not to alert the jury, had clearly arisen in the minds of the jurors as a consequence of the agreed statement directed at eliminating the issue of recent invention. It was submitted that it was clear that the jury were considering the possible reasons why the applicant’s explanation for his conduct had not been put to AA. Reference was made to the Queensland Court of Appeal judgment in R v Foley.[5] It was submitted that, as matters transpired, the conclusion must be drawn that the jury were considering the possibility that the applicant’s counsel had made a deliberate decision not to put the matter to AA. It was submitted that the jury did not, however, have the benefit of the explanation from the applicant’s counsel that he did not consider it necessary to put it because of the answers he had already obtained in cross-examination. It was submitted that the direction made in answer to the jury’s question could not solve the real difficulty which had arisen. In that respect the decision in R v SWC was relied upon.[6] The problem was said to be incurable. It was submitted that there was a real risk the jury would have gained the impression that the applicant’s counsel had not been prepared to put the applicant’s explanation to AA in cross-examination despite being specifically instructed to do so.
[5][2000] 1 Qd R 290, 290–2 (‘Foley’).
[6](2007) 175 A Crim R 71, 76 [24] (‘SWC’).
In oral submissions it was submitted on the applicant’s behalf that the judge had been correct to reject the submission of the applicant’s trial counsel that there had been no breach of the rule in Browne v Dunn. When it was put to senior counsel for the applicant that trial counsel had made a forensic decision not to put the applicant’s explanation but to stop the cross-examination where he did, that being his assessment of what was in the best interests of his client, senior counsel responded that that was a decision which he simply could not take given his obligations under the rule in Browne v Dunn. It was submitted that the rule in Browne v Dunn had to be ‘factored in’ to the analysis of the forensic decision and that a forensic decision not to put the explanation was not ‘open’ in the circumstances. It was submitted that, in any event, the issue was whether there had been a miscarriage of justice given the way the matter ‘ended up’, as revealed by the jury question.
On behalf of the respondent it was submitted that insofar as there was any unfairness in the manner in which the Browne v Dunn issue was dealt with at the trial, it was unfairness to the prosecution. It was submitted that the applicant had received significant advantages as a result of what occurred and now came to the Court of Appeal to complain. The advantages were submitted to be that he had been able to give the jury a sworn explanation for his conduct, which his daughters were given no opportunity of contradicting, without any adverse comment from the trial judge. It was submitted that AA’s evidence, particularly in her VARE, revealed what her likely response would have been if the proposition that what was occurring was innocent play had been put to her. It was submitted that the judge had dealt with the issue in the most advantageous way possible to the applicant and that as matters transpired the issue was treated by the trial judge as if no breach of the rule in Browne v Dunn had occurred. It was submitted, in any event, that any potential problem was resolved by the direction the trial judge gave the jury that they were not to draw any adverse inference against the accused. The answer to the jury question had been agreed to by counsel for the applicant. Counsel had not sought a discharge of the jury.
Proposed ground 2: relevant authorities
The rule in Browne v Dunn requires counsel to put any matters concerning his or her own case that are inconsistent with the evidence of a witness to that witness and to put any allegations or imputations that he or she intends to make against a witness to that witness. Whilst it is easy to state the rule, it is not necessarily easy to apply it, particularly in the context of a criminal trial. In this Court in Morrow, Redlich JA described the operation of the rule in a criminal trial in some detail.[7] Relevantly, Redlich JA said:[8]
[7]Nettle JA and Lasry AJA agreed with Redlich JA. Relevant parts of that passage were quoted and adopted by a differently constituted bench of this Court in KC v The Queen (2011) 32 VR 61.
[8]Morrow (2009) 26 VR 526, 539–43 [48]–[62] (citations omitted).
The rule, resting upon notions of fairness, is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness and diminishes the tribunal’s capacity to assess the merits of the issue.
It is not always clear how far counsel must go in putting their case to avoid complaint that they have not met the minimum obligations arising under the rule. The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner. If it involves no more than a denial of the evidence of the witness, the puttage may be of relatively short compass. Plainly the extent of the obligation will differ where a positive case is to be subsequently advanced. If the ‘essential elements of the eventual case’ are not put to the witness who may cast doubt on them, a fair trial may be jeopardised and adverse comment expected. But it will often be a matter of impression and interpretation as to whether what counsel has put sufficiently conveys the substance of the evidence subsequently to be given. Bald puttage will be sufficient only where it can be said that no unfairness arises from the absence of any further identification of the substance of the matters in controversy.
…
There is an obvious danger arising from a forensic choice to abstain from challenging the witness. It may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness. Moreover, if the features or detail are not explored, the perception may arise that the cross-examiner has deliberately avoided exposing them to the witness or alternatively, that they were not known to the cross-examiner at the time.
…
The trial judge was right to conclude that there had been a substantial breach of the rule. … The failure to put the substance of the evidence of the applicant on these matters entitled the judge to direct the jury that the failure could be taken into account in assessing the weight to be attached to that evidence or any argument that rested upon it.
…
[T]he dangers attendant upon a direction in a criminal trial about non-compliance with the rule in Browne v Dunn are well recognised. Having regard to the essentially accusatory character of a criminal trial, the rule can only be applied with serious qualifications. Trial judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule. Neither should the trial judge ordinarily instruct the jury that the conduct of the case is something from which they may draw inferences.
…
The failure to cross-examine in accordance with the rule does not mean that the evidence led in contradiction of the evidence that should have been challenged cannot be considered. It is a matter of weight for the court to take into account.
Ordinarily, a failure to put to the witness the substance of the evidence which is called in contradiction of the witness or to otherwise impugn the witness, will bear upon the weight to be attached to such evidence or the inferences that flow therefrom. Where the tribunal of fact is a jury and the trial judge has concluded that there has been non-compliance with the rule, the jury may be told that the failure bears upon the weight they attach to the allegation of fact that was not pursued with the relevant witness or the argument which rests upon that fact.
…
In this case the trial judge did not, in directing the jury, confine himself to the weight that might be attached to the evidence or argument in support of the allegation. He instructed the jury that the failure to put such matters enabled the jury to reject the applicant’s assertions and more readily accept the complainant’s evidence on what were important factual issues.
This Court in Morrow referred, with approval, to Foley. In that case the Queensland Court of Appeal, constituted by de Jersey CJ, Thomas JA and Derrington J, began with the following observation:[9]
This case highlights the problems that ensue when defence counsel fails to put his case to Crown witnesses, followed by an arguably excessive resort by the Crown Prosecutor to the so-called rule in Browne v Dunn. We say ‘so-called rule’ because it involves a rule of professional practice and certain countermeasures that the court may permit to be taken when a cross-examiner fails to observe the rule.
[9]Foley [2000] 1 Qd R 290, 290.
The Court in Foley observed that the authorities do not ‘clearly mark out’ how far counsel must go in putting his or her client’s case in order to comply with the rule but said that ‘the essential elements’ must be put to witnesses who have the capacity to cast doubt upon them because otherwise a fair trial is jeopardised. When there is a failure to do that ‘appropriate adverse comment may reasonably be expected’. The Court observed that, in a criminal trial, that comment would generally not go beyond pointing out that the relevant witness did not have the opportunity of dealing with the issue. The Court observed that there would be ‘exceptional cases’ where it would be necessary to go further, the most obvious being where there was a tenable case of recent invention.[10]
[10]Ibid 291.
In the appeal before us the applicant particularly relied upon SWC. That case concerned an extraordinarily comprehensive failure on the part of defence counsel to put to four prosecution witnesses the substance of evidence which the accused eventually gave. In that particular case this Court found that the contravention of the rule in Browne v Dunn had been so extensive and comprehensive that[11]
the problem could not have been remedied by permitting the four Crown witnesses to be recalled for further cross-examination after the completion of the accused’s evidence. Such a course would only have exacerbated the problem.
[11]SWC (2007) 175 A Crim R 71, 74 [12].
In SWC the trial judge had taken the step of going beyond a direction about deprivation of the opportunity to answer and had told the jury that the situation could affect their assessment of the ‘weight and credibility’ of the accused. This Court found that the first part of the direction was ‘impeccable’ and, after analysis, concluded that the trial judge had not otherwise erred in the directions which he had given.[12] But the Court concluded that, in the circumstances of that case, the appeal had to be allowed for the following reason:[13]
Once the applicant gave evidence on key issues which had not been the subject of cross-examination of Crown witnesses, the problem was simply incurable. No direction could have cured the miscarriage of justice which flowed from the failure of the applicant’s counsel to cross-examine on those matters, so adverse was its inevitable impact on the jury’s view of the accused.
[12]Ibid 74–5 [15]–[21].
[13]Ibid 76 [24].
Proposed ground 2: analysis
The starting point of the analysis has to be that the applicant’s counsel breached the rule in Browne v Dunn. Senior counsel for the applicant on the hearing before us submitted that there had been a clear breach. This was part of his argument. Having said that, we would not conclude that the applicant’s trial counsel had deliberately breached the rule. Clearly, he deliberately decided not to question AA further after he had obtained what he characterised as concessions that she could not see what was happening. He considered that he was not obliged to specifically put to her the innocent explanation his client was to give in his evidence. He was wrong about that, but we do not consider that it can be concluded that he consciously breached the rule. Nevertheless, it was his contravention of the rule, which occurred because of a course he took which he considered to be in the forensic interests of his client, which created the problem.
Next, it was the prosecutor who highlighted the breach of the rule by his cross-examination. It was the first matter he dealt with. The possibility of recent invention was the most obvious concern raised by that cross-examination. That concern was effectively dealt with, and it was not suggested, either at the trial or before us, that there was any risk that the jury would have considered, much less drawn, any adverse inference against the accused on the basis of recent invention.
The rule in Browne v Dunn having been breached, it was incumbent on the judge to consider ‘countermeasures’ in order to address the unfairness which had been created. As counsel for the respondent emphasised before us, the unfairness was to the prosecution. The applicant’s trial counsel in his final address correctly identified AA as the critical witness for the Crown. AA had not had the explanation which the applicant proposed to give for his behaviour, which AA had witnessed, put to her. She was given no opportunity to respond to it. The clear suggestion made by the accused in his evidence, and then put to the jury, was that she had, or could have, made a mistake.
In considering the countermeasures that might be taken to redress the unfairness, it seems to us that the trial judge approached the issue in the way the authorities say that a trial judge should.
The trial judge’s first inclination was to have the two daughters recalled. There was probably little point in recalling AB. Her age and the nature of the cross-examination at the special hearing made it unlikely, in our view, that any significant assistance would have been given to the jury by her recall and the explanation being put to her. The witness who was critical was AA. Her response to the innocent explanation might well have been significant. The prosecutor said that AA could not be recalled because of psychological difficulties which she was having. It seems to us that counsel for the applicant at the trial accepted that position in relation to AA. Counsel for the applicant at the trial did not suggest recall until after the prosecutor had said that he could not or would not recall AA.
The prosecutor sought a direction from the trial judge consequent upon the breach of the rule in Browne v Dunn as to both weight and credit. The trial judge determined very early that he would not accede to that submission. He did consider giving a direction as to weight of the kind which had been approved by this Court in Morrow. Eventually, however, he accepted counsel for the applicant’s submission that, notwithstanding the applicant’s counsel’s breach of the rule, the fact that the countermeasure of recall was not available meant that no direction should be given to the jury by the trial judge on the issue. In other words, the trial judge eventually determined that no countermeasure should be taken to redress the unfairness to the prosecution caused by the applicant’s counsel’s breach of the rule in Browne v Dunn.
The position as it then stood was nothing like the position which arose in SWC. In that case an extraordinarily comprehensive failure to put matters to a number of Crown witnesses was held to have had an impact on the jury’s view of the accused which was so adverse that it was ‘simply incurable’.[14] This case is different. The competence of the applicant’s counsel in this case is not in issue, save to the extent that on behalf of the applicant before us it was submitted that the forensic decision he made not to cross-examine AA further was one which was ‘not open’ given the rule in Browne v Dunn. In terms of impact upon the case, the course he took had, as counsel for the respondent submitted before us, advantages for the applicant. The applicant was able to give the jury a sworn innocent explanation, without giving the Crown’s critical witness an opportunity to address it, and without any adverse comment being made before the jury as a consequence.
[14]SWC (2007) 175 A Crim R 71, 76 [24].
Counsel for the applicant before us submitted that the jury question revealed that the issue of ‘fairness’ had arisen in the minds of the jurors, notwithstanding the absence of any direction about it by the trial judge, because of the terms in which the agreed statement, directed towards the issue of recent invention, had been made. The jury question is certainly open to that interpretation. But it seems to us that the judge dealt with the question in a way which was satisfactory in the circumstances, and the applicant’s trial counsel perceived that to be the case at the time. The terms in which the judge answered the question were agreed with the applicant’s counsel. He made no submission after the question had been answered. At no stage did he seek a discharge of the jury.
Counsel for the respondent submitted that AA’s evidence revealed what her likely response would have been if the proposition that what was occurring was innocent play had been put to her directly. Of course, this Court should not speculate as to what the evidence may have been, any more than the jury should have. But AA’s evidence gives no reason to apprehend that defence counsel’s breach of the rule in Browne v Dunn gave rise to any miscarriage of justice. Both at the VARE and then at the special hearing, AA said that she had at first thought that AB was laughing, before realising when she reached the lounge room that she was actually crying. While defence counsel did not put to AA the specific suggestion that her father had been blowing raspberries on AB’s tummy or stomach, he did raise with her whether she was laughing as if being tickled. When counsel suggested to her that AB was not crying but laughing hysterically, AA firmly rejected the suggestion that this is what had occurred. It is therefore understandable that counsel made the forensic decision not to press the point further.
Proposed ground 2 is arguable and leave to appeal should be granted but in our view the appeal should be dismissed as no miscarriage of justice has been shown to have occurred.
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