Glass v Tasmania
[2013] TASCCA 8
•5 September 2013
[2013] TASCCA 8
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Glass v Tasmania [2013] TASCCA 8
PARTIES: GLASS, Anthony Douglas
v
STATE OF TASMANIA
FILE NO/S: CCA 307/2013
DELIVERED ON: 5 September 2013
DELIVERED AT: Hobart
HEARING DATE: 14 June 2013
JUDGMENT OF: Tennent, Estcourt and Pearce JJ
CATCHWORDS:
Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Non-direction – Failure to direct on potential unreliability of evidence – Failure to direct on permissible use of evidence of uncharged criminal and discreditable conduct - Failure to direct against engaging in impermissible propensity or tendency reasoning.
Criminal Code 1924 (Tas), ss401(1), 402(1), 402(2).
Evidence Act 2000 (Tas), ss165(2), 165(5).
Hargraves v R (2011) 245 CLR 257; Longman v R (1989) 168 CLR 79; Martin v State of Tasmania (2008) 190 A Crim R 77; Doggett v R (2001) 208 CLR 343; Bromley v R (1986) 161 CLR 315; Marlow v R (2002) 113 A Crim R 118; KBT v R (1997) 191 CLR 417; Liberato v R (1985) 159 CLR 507; BRS v R (1997) 191 CLR 275; Qualtieri v R (2006) A Crim R 463; Paton v R [2011] VSCA 72; WFS v R (2011) 33 VR 406; Jiang v R [2010] NSWCCA 277, considered.
Aust Dig Criminal Law [3467]
REPRESENTATION:
Counsel:
Appellant: R van de Weil QC and T Kassimatis
Respondent: K E Brown
Solicitors:
Appellant: Henry Wherett & Benjamin
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASCCA 8
Number of paragraphs: 95
Serial No 8/2013
File No CCA 307/2013
ANTHONY DOUGLAS GLASS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
ESTCOURT J
PEARCE J (Dissenting)
5 September 2013
Orders of the Court
Appeal allowed.
Appellant's conviction and sentence quashed.
Appellant be retried on the indictment, subject to the prosecutorial discretion of the Director of Public Prosecutions.
Serial No 8/2013
File No CCA 307/2013
ANTHONY DOUGLAS GLASS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
5 September 2013
I have had the opportunity to read the reasons of Estcourt J in draft form. I agree with those reasons and with the outcome he proposes.
File No CCA 307/2013
ANTHONY DOUGLAS GLASS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
5 September 2013
The appeal
The appellant appeals against his conviction, following trial, of two counts of aggravated sexual assault and one count of indecent assault.
By notice of appeal dated 12 April 2013 the appellant claimed, on six grounds, that the appellant's trial miscarried as a result of failures on the part of the learned trial judge, Evans J, to direct or properly direct the jury. Grounds 1, 4 and 5 were not pursued on the hearing of the appeal, and a new ground, ground 3A, was added.
The history
The following history of the appeal is taken from the written submissions of counsel for the appellant, Mr van de Weil QC and Mr Kassimatis.
The appellant was indicted on two counts of involving a child in the production of, and producing, child exploitation material (counts 1 and 2), two counts of aggravated sexual assault (counts 3 and 4), and one count of indecent assault (count 5). He was acquitted by direction on counts 1 and 2, and (by majority) found guilty on counts 3, 4 and 5.
The complainant was at the time of the alleged offending 17 years old. Count 3 charged that the appellant unlawfully penetrated her vagina with his tongue; count 4 that he penetrated her vagina with his finger or fingers; and count 5 that he indecently assaulted the complainant by touching her breasts.
The appellant's defence was one of consent or honest and reasonable belief as to consent.
In addition to the evidence that was said specifically to make out each of the counts on the indictment, the Crown led evidence of numerous uncharged acts, some of which were led at trial as photographs taken by the appellant of the complainant in various sexual poses; and further led evidence of indecent assaults not the subject of any count on the indictment. Evidence was also adduced that the appellant had offered the complainant money for sex.
The principle to be applied
Such an appeal invokes the last limb of the Criminal Code, s402(1), which provides:
"402 Determination of appeals
On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal." (Emphasis added.)
In a relatively recent re-examination of the Court's earlier decision in Robinson v R (1991) 180 CLR 531, the High Court in Hargraves v R (2011) 245 CLR 257, in a joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, considered the principle governing an appeal alleging "that on any other ground whatsoever there was a miscarriage of justice" at [40], as follows:
"The governing principle applied by the Court in Robinson was not identified as being new. Rather, the Court directed (50) attention to whether the directions that were given at trial constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining 'the benefit' which the 'presumption [of innocence] gives to an accused person'. That is, the Court determined whether there was, on any other ground whatsoever a miscarriage of justice by applying a principle which, when stripped of the rhetorical overtones that may be sounded by reference to 'the presumption of innocence', directed attention to the fundamental features of a criminal trial". (Emphasis added)
Their Honours then went on to identify the "fundamental features of a criminal trial". At [41] of their judgment they said:
"The plurality in RPS v The Queen (51) described those features as being that 'a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt' (emphasis added). Or, as the Court put the same point in Robinson (52), 'the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts' (emphasis added). These being the fundamental features of a criminal trial, it follows that the judge's instructions to the jury must accord with them and departure from them would be a miscarriage of justice". (Emphasis added.)
Next the plurality addressed the role of the trial judge in summing up to the jury. They said at [42]:
"As has been repeatedly pointed out (53), the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case (54). The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law (55) or statute (56) may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty." (Emphasis added.)
At [46] their Honours noted that:
"The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt?"
It is against that principle that the appellant's grounds of appeal must be examined.
Ground 2
Ground 2 of the amended notice of appeal states:
"2 The trial miscarried by reason of the learned trial judge's failure to direct the jury properly or at all on the potential unreliability of the complainant's evidence arising from her evidence that she was
(a) at the time of the sexual assaults; and
(b) at the time of her evidence at trial
experiencing visual and auditory hallucinations, was delusional and believed herself to be suffering from psychosis."
The appellant's counsel in their written submissions point to evidence that was adduced from the complainant in cross-examination that she believed herself to be suffering from some form of psychiatric illness. She testified that:
· a year earlier she was "delusional" or suffered from delusions and believed herself to be psychotic or suffering from a bipolar disorder;
· for two years leading up to the year before the trial her best friends had been "fifty soldiers, a wolf and an Elvin war-master" and that she would see them all the time;
· she had a year earlier acquired "a new friend … the beautiful one";
· as at the date of her evidence she continued to see the imaginary person she referred to as "the beautiful one" or "Beauty";
· she remained untreated but had in 2010 been provisionally diagnosed as having some form of delusional psychiatric disorder.
Counsel argued that the appellant's case was one that demanded a direction as to the potential unreliability of the complainant's evidence because in an "oath against oath" trial the complainant's reliability was squarely the subject of challenge for reasons having to do with her mental health. It was necessary, in the circumstances they submitted, that the jury was directed – with the imprimatur of the judge's office – on the possible danger of basing a conviction on the testimony of the complainant. At the very least, counsel said, the jury ought to have been directed that, by reason of the complainant's mental frailty and delusional symptoms, the jury needed to exercise caution in determining whether or not to accept her evidence, or in deciding what weight to give to it.
Counsel accepted that since the introduction of the Evidence Act 2001, a trial judge is, by operation of s165(2), under no statutory obligation to direct a jury about "evidence the reliability of which may be affected by … ill health, whether physical or mental …" unless "a party so requests". They submitted that nevertheless, there remained at common law an obligation reposed in a trial judge to give any direction necessary in the circumstances of a particular case to avoid "a perceptible risk of [a] miscarriage of justice". They noted that s165(5) of the Evidence Act provides that the section "does not affect any other power of the judge to give a warning to, or to inform, the jury."
It was accepted in Longman v R (1989) 168 CLR 79 that a legislative provision not unlike s165(2) dispensed only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, and did not affect the requirement to give a warning, whenever necessary, to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. As Deane J put it, at 95 - 96, dealing with s36BE(1) of the Evidence Act 1906 (WA), to similar effect as s165(2):
"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Section 36BE(l) neither negates that general responsibility in cases to which it applies nor precludes the giving of a warning of the kind referred to in the sub-section if the trial judge is satisfied that the particular circumstances of the case require it."
The position however, as to the effect of provisions in the same terms as subs165(2) and (5) of the Evidence Act and their relationship with the previous general law obligations of a trial judge has not, it seems, been finally settled, notwithstanding, in Tasmania, some comments made obiter by Crawford CJ in Martin v State of Tasmania (2008) 190 A Crim R 77 at [24] and [33] - [34]: see Singh v DPP (NSW) (2006) 164 A Crim R 284 at [39] - [42].
It is not however necessary, in my view, for me to seek to determine that question on this appeal, as I do not accept that in the present case the circumstances required such a warning, particularly when no request for it was made.
On this ground I accept the contention of counsel for the respondent, Ms Brown, in her written submissions. The appellant was represented at trial by experienced senior counsel who had relied heavily in his closing address to the jury on the evidence concerning the complainant's hallucinations and delusions, and her self-diagnosed psychosis as going to her unreliability. The learned trial judge drew specific attention in his summing-up to counsel's address, saying "… Mr Gunson properly put as to [the complainant's] credit, that she is self-diagnosed as having psychiatric problems, as being delusional and having imaginary friends". Counsel did not seek an amendment or addition to the summing-up and "his failure to do so carries a strong suggestion that in the atmosphere of the trial at which he was present no miscarriage of justice occurred or was likely to occur": Chamberlain v R (1983) 72 FLR 1 per Bowen CJ and Forster J at 12.
As Crawford CJ put it Martin (above) at [33] - [34] in a case where counsel had not requested such a warning either before or after the summing-up:
"As nothing more was requested, the only conclusion reasonably open is that the appellant did not request the learned judge to give it and was content that the request for warnings had been satisfied by what the learned judge had said to the jury".
Similarly, Gleeson CJ in Doggett v R (2001) 208 CLR 343, at [2], said as to the manner in which a trial is conducted:
"The manner in which a trial is conducted, and in which the issues are shaped, especially where ... an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formalities. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties."
Moreover, in the present case, I am of the view that the jury would have been well aware that the reliability of evidence of the complainant may have been affected by her delusional state. It was obvious enough and, as was observed by Brennan J in Bromley v R (1986) 161 CLR 315 at 325:
"The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer (36) 'partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind': see also per Lord Ackner (37) and per Lord Diplock in Hester (38). If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick CJ said in Kelleher (39): 'The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play.' When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted". (Emphasis added.)
It is true that the learned trial judge charged that, as a result of the similarities between the evidence of the appellant and the complainant, they were both "honest and reliable witnesses" and it is also correct that when he did mention the complainant's mental state it was in the context of her credibility, not her reliability, but I am not satisfied that a failure to tell the jury that the complainant's delusional and psychotic symptoms also went to her reliability where her evidence disagreed with the appellant's, constituted a miscarriage of justice by affecting the fairness of the trial.
In my view this ground of appeal fails.
Grounds 3 and 3A
Ground 3 of the amended notice of appeal states:
"3 The trial miscarried by reason of the learned trial judge's having failed properly or at all to direct the jury against engaging in impermissible propensity or tendency reasoning. In particular, the judge erred by failing adequately or at all to direct that, were the jury to accept, inter alia, that:
(a)the applicant had posed with, and photographed the complainant;
(b) the applicant offered the complainant money for sex; and/or
(c)the applicant was guilty of one or more of the offences with which he was charged
they must not reason that he was the kind of person who was likely to have committed the offence the subject of their separate consideration or reason that he was 'an opportunistic predator' and thus guilty."
Ground 3A of the amended notice of appeal states:
"3A A substantial miscarriage of justice resulted as a consequence of:
(a)the manner in which the Crown sought to and did rely upon evidence of extraneous discreditable conduct in proof of the charged offences.
(b)a failure on the part of the learned trial judge, properly or at all, to direct the jury on the limited purpose for which the evidence was led and to warn against its potential misuse.
(c)the learned trial judge having encouraged the jury to use at least some part of that extraneous discreditable conduct to reason that the appellant was, potentially an 'opportunistic predator'."
The phrase used in these grounds of appeal, "an opportunistic predator", is a reference to a passage in the learned trial judge's summing-up where his Honour was directing the jury to consider the evidence dispassionately. He said:
"To faithfully and impartially try the accused according with the evidence also requires that you consider the evidence carefully and dispassionately without being influenced by feelings that you have about the accused … and the complainant. You may consider that she was silly or irresponsible in doing what she did and that the accused … was an opportunist, in fact an opportunistic predator potentially, and that's my word. I mean he offered her a hundred dollars in effect for sexual services." (Emphasis added.)
In their written submissions the appellant's counsel argued that the trial was precisely the kind of trial at which the jury ought to have been warned against the dangers of propensity reasoning, as the indictment alleged multiple counts of sexual misconduct and the Crown led, circumstantially in proof of those counts, numerous uncharged criminal and discreditable acts.
The evidence referred to was as follows and was led in the complainant's evidence-in-chief:
• the appellant made it a condition precedent of his photo shoot with the complainant that she agree to "nude shots";
• the appellant took some 97 photographs of the complainant, most of them depicting the complainant naked and in erotic poses, at the direction of the appellant;
• the appellant suggested that he and the complainant pose as "Adam and Eve" with one another's hands over the other's genitalia;
• during the series of photographs where the two posed together the complainant felt that the appellant had an erection;
• after the photography ceased the appellant asked whether the complainant wanted to "play around";
• he took her hand and tried to place it on his genitals;
• after the complainant pulled her hand away he offered her $100 for sex;
• the appellant told the complainant he thought she would "be into that … because he said that all his other models had done that with him";
• he then sat behind the complainant and rubbed her naked back;
• the appellant pulled her down so the complainant lay on the bed, and told her she was "cute" and "sexy";
• he kissed her on the cheek and neck and on the mouth;
• he tried to push his tongue into the complainant's mouth;
• after the first (charged) oral penetration, the appellant stopped, spoke to the complainant, then penetrated her vagina again with his tongue while he continued to hold her down;
• the appellant then pulled the complainant towards him, held her firmly and grabbed her face and neck and again kissed her and sought to force his tongue into her mouth;
• he continued to try and kiss and touch the complainant's breast and thigh;
• the appellant then pulled the complainant to the other side of the bed and rubbed her inner thighs and genital area - those acts preceding the charged digital penetration, and
• he then again "roughly" bit and kissed her breasts.
The appellant submitted that the prosecutor in her closing address to the jury made express reference to some of that extraneous uncharged or discreditable conduct, and that she did so seemingly to bolster the credit of the complainant and her account of the events that took place, and to undermine the appellant's claim that he at all times believed that the complainant was consenting.
I observe here that counsel for the respondent submitted that evidence of a person's character, reputation or conduct, or a tendency to act in a particular way, is usually historical and is led in respect of other occasions than that of the charged conduct. That is true, but such evidence is not restricted or confined by principle to occasions other than that of the commission of the charged offence.
I should also observe at this point that I find it unnecessary to determine whether any of the "extraneous" conduct was "uncharged criminal conduct" as suggested in the appellant's written submissions, as opposed to "discreditable conduct". I will refer to the conduct in these reasons as "uncharged criminal and/or otherwise discreditable conduct".
On the appellant's trial the extraneous evidence of uncharged criminal and/or otherwise discreditable conduct was contemporary and not historical, and counsel for the appellant submitted that the evidence of that conduct and the reliance placed upon it by the prosecutor called for clear directions about how the jury was entitled, and not entitled, to use it. The jury was not given those directions, the appellant contended, but instead, the trial judge did no more than summarise and remind the jury of the evidence.
The appellant's counsel submitted that the directions ordinarily necessitated when the Crown adduces such evidence in cases of alleged sexual assault are well established, and in this case they were not given. They submitted that the jury should have been directed that:
• the evidence was adduced for a limited purpose, namely to place the alleged charged acts in their proper context and help the jury assess the credibility of the complainant and the appellant;
• the jury needed to take care not to substitute that evidence for evidence of the offences charged, and
• most importantly, the jury were not to reason that, because the appellant engaged in other misconduct, he was the kind of person likely to have committed the offences.
The submission continued that the risk was real, that absent proper direction, the jury would reason impermissibly that, if the appellant had engaged in some or all of the sexual misconduct not the subject of any charged offence, he was the kind of person likely to have committed the offences with which he was charged.
Next it was submitted on behalf of the appellant that the direction was essential and was made a fortiori essential after the judge charged the jury that:
"You may consider that [the complainant] was silly or irresponsible in doing what she did and that the accused … was an opportunistic predator potentially, and that my word. I mean he offered her a hundred dollars in effect for sexual services."
In Marlow v R (2002) 113 A Crim R 118, Cox CJ observed at [3] - [6]:
"3 As my brother Underwood J points out, where evidence of criminal or reprehensible conduct not the subject of a charge is admissible as relevant only to a subsidiary issue that arises at trial, it is (normally) incumbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. He cites the dictum of Barwick CJ in Donnini v R [1972] HCA 71; (1972) 128 CLR 114 at 123. In that passage, Barwick CJ states that 'evidence of bad character ... is susceptible of use by the jury as indicating a propensity for criminal behaviour' and 'there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused'. Donnini had sought to establish his good character as a matter going to the likelihood of his innocence and it was in that context that evidence of prior convictions became admissible, not, of course, to prove the reverse, but to deny him the benefit of a false claim to good character which could otherwise have been used by the jury as a matter pointing towards innocence. Nevertheless, the principle remains the same even if the evidence is rendered admissible for other reasons. Evidence suggestive of bad character, whether demonstrated by prior convictions or some other evidence, is susceptible of impermissible use as indicating a criminal propensity which makes it more likely that an accused person is guilty of the crime charged.
4 In BRS v R (1997) 191 CLR 275, evidence of homosexual acts on another youth which were of a similar character to those alleged to have been committed upon the complainant, was admissible as corroborating some of the detail of the complainant's version of events, but that as there was a real risk that the jury would impermissibly rely on it as showing that the accused was the sort of person who had a propensity to commit the conduct the subject of the charges and would use it as evidence of guilt, the absence of a direction as to its proper use denied him a fair trial. That is a stronger case than the present because here a propensity to violence generally is less closely linked with the particular behaviour the subject of the charge; but even so, there is a direct link in the sense that the acts of attempted and completed rape, together with the third count of assault, all intrinsically involved a degree of force and, in the circumstances of this case, also involved a not inconsiderable degree of actual physical violence.
5 That considerable care is required in explaining the purpose for which evidence can be used in situations where an impermissible use of it might be made by the jury, is demonstrated by the law in respect of evidence of recent complaint in sexual cases. In Jones v R (1997) 143 ALR 52, the High Court unequivocally reiterated the necessity for a direction as to the limited use to be made of such evidence, saying that unless this were done 'there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged' (at 54)." (See also Underwood J (as he then was) at [17] - [22].)
In my view, when those observations are considered against the matrix of the facts of the appellant's case it is apparent that the sexual conduct involved in the counts charged, and the content of the evidence as to the uncharged discreditable sexual conduct on the part of the accused, were so closely related, in terms of time and place and nature, that the risk was very real that the jury might move from the uncharged conduct to the conduct charged, and use the former as relevant to the issues of the claimed absence of consent on the part of the complainant, or a lack of and the claimed honest and reasonable belief as to consent on the part of the appellant, either by way of "propensity reasoning", or, to the extent that there is any distinction on the facts of this case "substitution reasoning".
Contrary to the submissions of counsel for the respondent, the evidence of the extraneous conduct cannot, in my opinion, be viewed as evidence "related not to the appellant's general character but to his conduct in a unique situation": Martin (above), at [100], per Blow J. The evidence whether characterised as going to "context" or "essential background" or "sexual interest" was also, incontrovertibly, evidence reflecting on the appellant's character, and a warning from his Honour not to be tempted to engage in impermissible reasoning was, to my mind, clearly necessary.
His Honour should have directed the jury as to the limited use they could make of the evidence of the extraneous conduct and should have told them that they could not use that evidence to reason that the accused was a person who would do what was alleged, without consent, or without an honest and reasonable belief as to consent on the part of the complainant.
That omission was made all the more egregious, in my view, by his Honour's comment to the jury, albeit I accept, as pointed out by counsel for the respondent, and as already noted, made in a different context, that the appellant was potentially an "opportunistic predator".
I also observe that the situation was not ameliorated, in my opinion, by the fact that the learned trial judge took the jury to the terms of par1.3 of his written memorandum to the jury, which stated that "Each charge against the accused must be considered separately, solely on the basis of the evidence on that charge". A "separate consideration" direction given in relation to the evidence on the counts with which an accused has been charged makes it plain to the jury that the verdict for each count must be based only upon the evidence referable to that count alone, but it is insufficient in itself to amount to a warning against reasoning on a "propensity" or "substitution" basis as to evidence that was not referable to any count: Paton v R [2011] VSCA 72 at [30] - [32].
I accept the submissions of junior counsel for the appellant on this ground and, in particular, I accept the written submission that, "The evidence of extraneous misconduct was extensive. Most if not all of the alleged uncharged acts were of a sexual nature and of a kind similar to those the subject of the counts on the indictment. Other evidence was of general discreditable conduct. The directions were necessary. Their absence caused the trial to miscarry".
Having regard to the learned trial judge's summing-up taken as a whole, absent a warning not to do so, there was an obvious risk that some or all of the jury may have impermissibly relied on the evidence of uncharged criminal and/or otherwise discreditable conduct as evidence going to a lack of consent or to an honest and reasonable belief as to consent, either by way of propensity reasoning; that the accused was the sort of person who would commit the conduct the subject of the charges they were considering, without consent actual or believed, or by way of substitution reasoning; as evidence of guilt.
The jury should have been warned against such reasoning and should have been directed that they were confined to using that evidence permissibly, in a limited way only, to place the charged acts in their proper context and as a result to assist them in assessing the credibility of the complainant's and the accused's versions of events relevant to the real issues in the case, namely consent and honest and reasonable mistake as to consent.
That without such warning and direction the jury might have engaged in impermissible reasoning is clear to my mind. Indeed, as pointed out by the appellant's counsel in their written submissions, the first question the jury asked after retiring to consider their verdict, disclosed that they remained unclear after the summing-up about whether, in respect of the charge against the appellant in count 5 of the indictment of indecent assault by touching the complainant's breasts, their verdict had to relate to a finding about a "specific occasion or is it related to all the breast touching", (emphasis added.) That is to say, the jury were not alive, at that point, to the distinction between the charged and uncharged criminal and/or discreditable conduct in respect of that count at least, without further direction.
It is true that the appellant's counsel at trial did not seek a redirection as to impermissible use by the jury of this evidence of criminal and/or otherwise discreditable conduct. However, as was pointed out by Gaudron J in KBT v R (1997) 191 CLR 417 at 424, if an appellant was, as the appellant was in the present case, in my opinion, deprived "of a chance of an acquittal that was fairly open ... the fact that no complaint was made at trial is irrelevant". And, as observed by Underwood J (as he then was) in Marlow v R (above) at [18], the trial judge is obliged to give such a direction if its absence is likely to cause a miscarriage of justice: B R S v R (above) at 302 and 306; Bromley v R (above) at 325.
The proviso in the Criminal Code, s402(2), that the Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred, has no application, in a case such as the present where, in my view, there was a fundamental misdirection or non-direction. As Deane J, with whom Brennan J agreed in substance, said in Liberato v R (1985) 159 CLR 507 at 520:
"… the accused has been denied a trial in accordance with law and, in the event of a conviction, there has been a fundamental miscarriage of justice. That being so, the Court of Criminal Appeal could not, in the present cases, properly have been satisfied for the purposes of the proviso that 'no substantial miscarriage of justice' had 'actually occurred'. The reason is that a Court of Criminal Appeal can only properly be so satisfied, in a case where there has been fundamental misdirection, if the circumstances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection (cf Mraz v The Queen (1955) 93 CLR 493 at 514)".
As the appellant's counsel submitted in their written submissions, in circumstances where the trial was "oath against oath" and the jury's assessment of the complainant's and the appellant's credit was crucial to its outcome, the "natural limitations" inherent in the exercise of this Court's review of the record does not admit for the application of the proviso: Weiss v R (2005) 224 CLR 300 at [41] and [45].
I am wholly unable to say that "there is no real possibility that justice has miscarried" by reason of the learned trial judge's summing-up. On the contrary, I am of the view that the appellant has been deprived of an opportunity of acquittal that was fairly open.
On a consideration of the principles discussed in Hargraves v R (supra), such a fundamental mis-direction or non-direction involves a substantial miscarriage of justice and the "proviso" is not engaged. It follows, in my view, that ground 5 succeeds.
Ground 6
It is unnecessary to consider the final ground of appeal, ground 6, which asserts that the trial miscarried as a consequence of the culmination of some or all of the errors asserted in the earlier grounds.
Disposition
I am not persuaded by counsel for the respondent's submission that Saunders v R (2004) 149 A Crim R 174 at 191 is authority for the proposition that ground 3 (and now ground 3A) involve a mixed question of fact and law involving an investigation based on evidence so as to engage the Criminal Code, s401(1)(b)(ii). However, if I am wrong about that, I would nonetheless grant leave to appeal in this case.
I would allow the appeal, quash the appellant's conviction and the sentence, and order that the appellant be retried on the indictment, subject to the prosecutorial discretion of the Director of Public Prosecutions.
File No CCA 307/2013
ANTHONY DOUGLAS GLASS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
5 September 2013
Preliminary
The appellant, Anthony Douglas Glass, was convicted following a trial before Evans J of two counts of aggravated sexual assault and one count of indecent assault. The notice of appeal lists six grounds. One further ground, 3A, was added during the appeal hearing.
Grounds 1, 4 and 5 were not pursued. I respectfully agree with the reasons of Estcourt J for rejecting ground 2.
However I have reached a different conclusion about the remaining grounds of appeal, grounds 3 and 3A. In my opinion both of those grounds, which relate to a similar issue, fail. Having rejected grounds 2 , 3 and 3A, I conclude that ground 6, which asserts an accumulation of errors, also fails.
Grounds 3 and 3A
Grounds 3 and 3A of the amended notice of appeal are in the following terms:
"3The trial miscarried by reason of the learned trial judge's having failed properly or at all to direct the jury against engaging in impermissible propensity or tendency reasoning. In particular, the judge erred by failing adequately or at all to direct that, were the jury to find, inter alia, that:
(a)the Applicant had posed with, and photographed the complainant without her consent;
(b)the Applicant had offered the complainant money for sex; and/or
(c)the Applicant was guilty of one or more of the offences with which he was charged
they must not reason that he was the kind of person who was likely to have committed the offence the subject of their separate consideration or reason that he was 'an opportunistic predator' and thus guilty.
3AA substantial miscarriage of justice resulted as a consequence of:
(a)the manner in which the Crown sought to and did rely upon evidence of extraneous discreditable conduct in proof of the charged offences.
(b)a failure on the part of the learned trial judge, properly or at all, to direct the jury on the limited purpose for which the evidence was led and to warn against its potential misuse.
(c)by the learned trial judge's having encouraged the jury to use at least some of that extraneous discreditable conduct to reason that the accused man was, an 'opportunistic predator'."
Background
At the time of the relevant events, the complainant was 17. She lived in North-West Tasmania. In August 2011 she created a profile on an internet modelling site intending to further her modelling career by making contact with photographers, models, and others involved in fashion photography. The appellant enrolled on the same website using a pseudonym. He was 31. He lived in Sydney and worked in a machinery manufacturing business. He commenced modelling in 2004 and had done some professional work. He also had an interest in photography, although he had no training.
The appellant saw the complainant's profile and contacted her by sending a message on the website on 31 August 2011. He told the complainant that he was a Sydney-based photographer model who was travelling to Hobart soon, and expressed a wish to "do a shoot with you whilst there". She replied on 3 September 2011. They corresponded through internet messages and at least one phone call and arranged for him to come to Tasmania on 20 September 2011 to conduct a photo-shoot. The complainant agreed that she would be photographed wearing erotic clothing and lingerie and that she would pose nude. She also agreed to pose with the appellant so that they would both be in the photograph, including when both were nude. The complainant expressed some initial hesitation about being photographed nude but agreed when the appellant told her that he would not undertake the photo-shoot otherwise.
They met at the appellant's hotel in Hobart at around 2pm on 20 September 2011. She was driven to the hotel by her then "romantic interest". The appellant took her to his room. She was first photographed, clothed, in various locations and poses in the room. The appellant used a small digital camera. She then removed her clothes and posed naked on the bed. The appellant attached the camera to a tripod at the foot of the bed and a series of photographs was taken, using a timer on the camera, of the complainant and the appellant together on the bed. Both were naked.
In all, 97 photographs were taken. At least one such photograph depicts the appellant with his hands on the complainant's breasts. After the camera was turned off she remained on the bed. The appellant approached her and asked if she wanted to "play around". After an exchange between them he went to his wallet and took out a $100 note and offered it to her. Both understood that the offer was for sexual reasons. The complainant responded to the offer of money by saying "I'm a model not a whore".
The appellant then returned to the bed. The appellant performed oral sex on the complainant during which he penetrated the complainant's vagina with his tongue. The appellant also agreed that, after the expiration of some further time, he penetrated the complainant's vagina with his fingers while, at the same time, kissing and biting her breasts.
Areas of factual contention
The evidence just referred to was uncontentious. However the evidence of the complainant and the appellant differed in a number of relevant respects. She claimed that he told her that he was a professional photographer. He denied doing so although he agreed that he lied to her about why he did not have a better camera. She said that, when she and the appellant were together on the bed during the photo-shoot, the appellant rubbed his hands up and down her thighs, she was shocked when he put his hands on her breasts and she asked him not to do it after the first photo, that she refused his suggestion that they adopt an Adam and Eve pose where each put their hand over the other's genitals, and that during the photographs there was contact between their bodies and she could feel he had a slight erection. The complainant said that after he asked her if she wanted to "play around" she responded that she did not know what that meant and the appellant tried to pull her hand towards his genitals. She pulled away. He then offered her money without saying anything and when she tried to shrug it off he said he thought they had discussed it on the phone and he assumed "that's what I'd been into because … all his other models had done that with him." The appellant had a different version. He said that at the time he suggested that they "play around" he had in mind that she may masturbate him and he gestured toward his penis. He thought that the subject of sexual contact between them had already been discussed on the phone and that when, on the day, the complainant said she was "not sure", she then said, "It depends on what someone would offer" which prompted him to offer $100. When she declined he desisted.
The evidence of how the sexual contact between them eventuated is markedly different. According to the complainant, after the photos were taken, the appellant returned to the bed and sat next to her. He started to touch her on the back with a gentle up and down rubbing motion and then pulled her into a hug and lay her down onto the bed. He lay behind her. She then froze. He complimented her by telling her she was cute and sexy and kissed her on the cheek and the neck, then kissed her on the mouth and tried to put his tongue in her mouth, but she kept her mouth closed and did not kiss him back. He fondled her breasts and rubbed her legs. He then moved his face down to her genitals, put one hand on her waist, and licked and kissed her genitals and put his tongue inside her vagina. She said that she could not recall how she reacted and said, "I don't think I said anything specifically". When he started to perform oral sex on her, she had a "shutdown panic attack", and "I froze", and "started to shake a little". She said her breathing quickened and her body "got the shakes". She then took "really short shallow breaths". She attempted to say "No" and "Stop", but it came out as "muttering and indistinct" and was "very, very quiet". She said that "after a bit he stopped", then said, "I hope I'm not making you uncomfortable" and, "I didn't mean to hurt you" before continuing with oral sex. The complainant claimed that, during the time the appellant performed oral sex, he kept his hand on her waist with a steady pressure. He then came up onto the bed and pulled her up so that her left side was on top of him. He kissed her again on the mouth, again trying to put his tongue in her mouth, but she did not kiss him back and kept her mouth closed. She denied kissing him on the shoulder or chest. She said he then chatted but she was "in a state of shock and panic", so she was "still very frozen and reasonably unresponsive". She wanted to leave but he was holding her, kissing her mouth and neck and touching her breast and thigh. He pulled her over to the other side of the bed and, while lying behind, rubbed her inner thighs and genitals, penetrating her vagina with his fingers for about five minutes. He then started roughly kissing and biting her breasts. She said she lost track of time, but then managed to roll off the edge of the bed, stand up and say she had to go. She said, "that wasn't meant to happen". Then she dressed, left the room and contacted her friend by Facebook message to come and pick her up.
The appellant's version was as follows. He said that after she initially declined his offer they then talked for 10 or 15 minutes. He then proceeded to have oral sex with her. He heard her say a very faint "stop" at the end of the three to five minutes during which he was engaging in oral sex. He asked her whether she was having a "panic attack", but she said no and giggled. They then talked again for 40 to 45 minutes. During that conversation she was naked on the bed. He was either naked or wearing only boxer shorts. Towards the end of that period he put his fingers inside her vagina, and at the same time he was kissing and gently biting her breasts. She stopped the contact by rolling off the bed. She then dressed and he showed her out. He denied at any time tongue kissing her.
The indictment and the issue
The crimes for which the appellant was found guilty were constituted by the following conduct:
count 3 –aggravated sexual assault by penetrating the complainant's vagina with his tongue;
count 4 – aggravated sexual assault by penetrating the complainant's vagina with his fingers; and
count 5 –indecent assault by touching the complainant's breasts.
The indictment did not particularise which touching of the complainant's breasts constituted the indecent assault.
It follows from the foregoing narration of facts that there was no issue that the appellant performed the physical acts that formed the basis of each count. His defence was that the complainant consented or, if not, that he had an honest and reasonable but mistaken belief that she was consenting.
The appeal
This appeal invokes s402(1) of the Criminal Code and alleges a miscarriage of justice. In considering whether a miscarriage of justice has occurred arising from directions of a trial judge the governing principle is whether the jury has been diverted from the fundamental features of a criminal trial, namely the presumption of innocence and that the Crown bears the onus of satisfying the jury beyond reasonable doubt of the guilt of an accused: Robinson v R (1991) 180 CLR 531, Hargraves v R (2011) 245 CLR 257. Grounds 3 and 3A raise the question as to whether a particular direction to the jury was necessary in order to avoid a miscarriage of justice. Such a question is not a question of law and thus leave is required: see Martin v State of Tasmania (2008) 190 A Crim R 77, per Blow J (as he then was) at [77], and the cases there referred to.
The substance of the appellant's contention is that the evidence included assertions of other criminal or discreditable conduct on the part of the appellant which required directions from the trial judge warning against impermissible reasoning and misuse of the evidence by the jury. The appellant also contends that the miscarriage of justice arose from the manner in which the Crown relied on the evidence of "extraneous discreditable conduct in proof of the charged offences". The submissions for the appellant make it clear that the reference to "extraneous discreditable conduct" is a reference to the evidence of the conduct of the appellant to which I have referred both prior to and during his attendance at the hotel, other than the acts which directly constituted the basis of the three counts on the indictment. The submission asserts that the prosecutor in her closing address to the jury "made express reference to some of that extraneous uncharged or discreditable conduct" and that she did so "seemingly to bolster the credit of the complainant and her account of the events that took place; and, relatedly, to undermine the [appellant's] claim that he at all times believed that [the complainant] was consenting." Counsel for the appellant submitted that in those circumstances the jury ought to have been directed that:
(a)the evidence was adduced for a limited purpose, namely to place the alleged charged acts in their proper context and help the jury assess the credibility of the complainant and the appellant;
(b)the jury needed to take care not to substitute that evidence for evidence of the offences charged; and
(c)most importantly, the jury were not to reason that, because the appellant engaged in other misconduct, he was the kind of person likely to have committed the offences.
Counsel for the appellant submitted that the need for a direction was made "essential" after a comment made to the jury by the learned trial judge that the appellant was "an opportunistic predator potentially and that's my word, I mean he offered her a hundred dollars in effect for sexual services."
For an appellate court to intervene, the risk of a miscarriage of justice must be real, not fanciful, and it is not enough that a conclusion is reached that a particular direction would have been desirable; Neill-Fraser v Tasmania [2012] TASCCA 2 per Porter J at [249]. In BRS v R (1997) 191 CLR 275, Kirby J said at 330:
"... in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. If directions on the jury's legal duties are incorrect or seriously inadequate a new trial will ordinarily be ordered ...". (Footnotes omitted.)
See also R v Heinze (2005) 153 A Crim R 380, per Eames JA at 388 [27].
A trial judge should give the directions necessary to avoid a serious risk of injustice, whether or not directions are sought: BRS v R (supra) at 302; Marlowv R (2002) 113 A Crim R 118, at [18]. However as Gleeson CJ pointed out in Doggett v R (2001) 208 CLR 343 at 346 [2]:
"The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties."
The response of defence counsel to a judge's summing-up is relevant and the failure to take the point at the trial is a factor to be taken into account in determining whether there was a miscarriage of justice: Neill-Fraser v Tasmania (supra), Lambert and Stokes v Tasmania [2007] TASSC 76 per Blow J at [115], the cases referred to by his Honour, and Martin v State of Tasmania (supra) per Blow J at [102].
His Honour's summing-up
Grounds 3 and 3A are principally directed to the following passage from the learned trial judge's directions to the jury. The passage which the appellant, by ground 3A(c), contends has contributed to a miscarriage of justice, appears first italicised:
"To faithfully and impartially try the accused according with the evidence also requires that you consider the evidence carefully and dispassionately without being influenced by feelings that you have about the accused ... and the complainant. You may consider that she was silly or irresponsible in doing what she did and that the accused … was an opportunist, in fact an opportunistic predator potentially, and that's my word. I mean he offered her a hundred dollars in effect for sexual services.
These assessments are matters for you and solely for you. My comments on them are not intended to suggest what you ought conclude on them. Remember however that like all of us you and me, the accused and the complainant are bound by the law and entitled to its protection. That [the complainant] took risks does not entitle the accused to sexually assault her if that is what you find occurred.
An important civilising aspect of our law is its application to us all. We are all subject to it and we're all protected by it. Similarly you must not allow feelings of disquiet or concern that you may have about the accused's conduct to influence you to reach a verdict on a count unrelated to the actual evidence on that count. You must not convict him simply because you consider that some of his behaviour was poor or inappropriate.
To convict him on a count you must be satisfied that the evidence establishes his guilt on that count beyond reasonable doubt. …".
The second italicised section in the passage just quoted is highlighted because the transcript appearing in the appeal book contains a small but relevant error. Because the transcript appeared to me to be incorrect I checked the words against the recording of what his Honour actually said and the corrected version is set out in these reasons.
Later, his Honour, when summing-up to the jury about the burden of proof, said:
"The law requires that before you can convict you must be satisfied of guilt beyond reasonable doubt. If you at the end of your deliberations are in doubt about the guilt of the accused on a charge then that charge has not been proven beyond a reasonable doubt and you should acquit."
His Honour then went on to give comprehensive directions about the issues of consent and mistake as to consent, and directed the jury to the evidence that he thought relevant to those issues. His Honour then took the members of the jury to the memorandum he had prepared. Under the heading "Burden of Proof" at the commencement of the memorandum, his Honour set out, amongst other things, the following:
"Each charge against the accused must be considered separately solely on the basis of the evidence on that charge."
Was a further direction necessary?
In Marlow v R (supra), the Court of Criminal Appeal considered an appeal by a man convicted of attempted rape, assault and rape of the complainant. In the course of the trial the complainant gave evidence that she had told the police that she did not want to proceed with the case because she had heard that the appellant was not a very nice person and that he would have a friend come with a rifle and kill her and her children. At [17] of his judgment Underwood J (as he then was) said:
"The general proposition of law is that where evidence of criminal or reprehensible conduct, not the subject of a charge, is admissible as relevant only to a subsidiary issue that arises at trial, it is incumbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. See Gipp v R (1998) 194 CLR 106 at 112; B R S v R [1997] HCA 47; (1997) 191 CLR 275 at 293 – 294; Donniniv R [1972] HCA 71; (1972) 128 CLR 114 at 123. Thus, where evidence of bad character is properly admitted as relevant to the issue of the accused's character, a direction is called for to make sure that no miscarriage of justice occurs by reason of the jury using that evidence as positive proof of the accused's guilt."
Notwithstanding that general statement of the law the court, by majority, found that there was no miscarriage of justice from the failure to give a direction in that case. Underwood J pointed out at [23] that the main issue for the jury at the trial was whether the jury was satisfied to the requisite degree that the complainant had not consented to the rape and attempted rape. That depended on whether the jury was satisfied that the complainant was a truthful and accurate witness. A distinction was drawn between such cases and cases where the issue was whether there was no sexual contact at all, or whether the accused was the person who committed the crimes charged. Underwood J, with whom Evans J agreed, concluded at [25] that:
"As the determinative issue for the jury was consent, and whether the complainant was, in substance, a witness of truth and accuracy, it cannot be said that the absence of a direction has given rise to a real chance that the jury may have impermissibly reasoned from that single answer that the accused is a person who has engaged in prior criminal or reprehensible conduct and therefore it is likely that the complainant did not consent to the admitted sexual activity."
The situations in which a trial judge must direct a jury that evidence admitted for one purpose may not be used for another purpose, or that some types of reasoning are permissible and others not in relation to a particular body of evidence, were reviewed by Blow J in Martin v State of Tasmania (supra). At [98] his Honour said:
"For example, when evidence of an accused person's prior convictions is admitted for the limited purpose of rebutting evidence of that person's good character, the jury must be directed that it may use the evidence in that way, but not as evidence of a general criminal propensity or a tendency to commit crimes: Donnini v R [1972] HCA 71; (1972) 128 CLR 114. The High Court decision in BRS v R [1997] HCA 47; (1997) 191 CLR 275 provides another good example. That was an appeal by a schoolteacher against convictions for sexual crimes against a student. The High Court held that evidence from a second student of the teacher keeping a lubricant and a towel in his room for the purposes of masturbation was relevant only as corroboration of the complainant's evidence, and not as evidence as to what sort of person the teacher was, and that the jury should therefore have been given directions as to permissible and impermissible reasoning. Gaudron J said at 301 that 'a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice'. McHugh J said at 310 that there had been a miscarriage of justice because there was "a real danger that the jury may have used the forbidden chain of reasoning".
Martin concerned an appeal by a psychiatrist found guilty of attempting to interfere with a witness in medical complaint proceedings through the use of violence. Evidence was admitted that he had also altered medical records, destroyed a briefcase and other items, and falsely reported a burglary and theft. One ground of appeal was that there was no direction warning the jury about how they were permitted to use the other evidence. The majority of the court dismissed the appeal. At [100] – [101] Blow J concluded that there was no miscarriage of justice:
"The learned trial judge did not direct the jury that they were not to treat the evidence of Mr Wells and the evidence as to the report of a car burglary as evidence that the appellant had a tendency to commit crimes, or a tendency to pervert the course of justice, and reason that he was therefore more likely to be guilty of the crimes he was charged with. However I do not think that the absence of such a direction resulted in a real risk of a miscarriage of justice. The evidence related not to the appellant's general character but to his conduct in a unique situation. The evidence suggested that he was willing to resort to dishonesty or impropriety to avoid the consequences of the disciplinary proceedings. The evidence did not suggest that he had a general tendency to commit crimes, or even a general tendency to interfere with the administration of justice.
In my view it is fanciful to think that the jury would have treated the evidence in question as evidence of some sort of tendency, rather than as evidence of the appellant's state of mind in a particular situation. It probably would have been prudent for the learned trial judge to have given the jury precise directions as to how they were and were not entitled to use the evidence in question. But I do not think it has been shown that such a direction was necessary in order to avoid the risk of a miscarriage of justice."
I have come to a similar conclusion in this case. No miscarriage of justice arose from the failure of the trial judge to give any further direction. The purpose of the evidence complained of was to explain the presence of the complainant in the hotel room and to give context to the evidence of the criminal conduct alleged in the indictment. No issue arose at the trial about whether the evidence of the, mostly contemporaneous, uncharged conduct might be impermissibly used by the jury to reason that the charged conduct occurred. The appellant admitted that it did occur and that he manifested a sexual interest in the complainant. Nor could the evidence of the uncharged conduct have been improperly used by the jury to determine that it was satisfied beyond reasonable doubt that the complainant did not consent to the charged acts. That depended not on any propensity of the appellant but on the jury's assessment, on all the evidence, of the credit of the complainant. Thus the question to be determined is whether a miscarriage of justice arose because the judge did not direct the jury that they could not use the evidence of the uncharged acts to reason that it was more likely that he was the type of person to engage in the admitted sexual acts, without a genuine and honest belief that the complainant consented. In my assessment there was no real prospect that the jury would apply such reasoning. The evidence was evidence of a continuing series of events which indicated the appellant's state of mind in a particular situation.
There are frequently cases where conduct of an accused in the circumstances surrounding the commission of a crime, although not an act directly constituting the crime, may be viewed by a jury as discreditable. A contention that all such conduct necessitates a direction warning against impermissible reasoning ought be rejected. It depends on the circumstances of each case. A propensity warning is not required because an accused faces a multiplicity of counts involving similar offences; see KRM v R (2001) 206 CLR 221 where McHugh J at 233 [33] reviewed the circumstances in which warnings may be necessary. It is correct that the Crown placed reliance on the evidence of all the facts which led to the complainant's presence at the hotel room and what happened in the room on that day. All of that evidence was relevant to the jury's consideration of the state of mind of the complainant and the belief of the appellant as to her consent. It was not to invite a process of impermissible reasoning and, in light of the issues the jury were to consider, there was no real risk of the jury doing so.
None of the authorities referred to by counsel for the appellant persuade me to a different view. In Qualtieri v R (2006) 171 A Crim R 463, the appellant was convicted of four of five counts of sexual offences against his daughter, a young child, committed on various dates between 1997 and 2000. Evidence was given of a sexual relationship beyond the matters charged. The appellant gave evidence and denied all the allegations. The Court of Criminal Appeal found that the evidence, tendered merely for the purpose of providing the jury with context in which the charged acts occurred and to assist in weighing the complainant's evidence, required clear directions that the jury could not use the evidence as tendency evidence. However the factual situation in Qualtieri was quite different to the situation in this case. It dealt with uncharged conduct on occasions preceding and separate from the charged conduct where the appellant denied all the charged and uncharged acts and denied any sexual interest in the complainant. In such a case there is a much greater risk that a jury will use the evidence for a purpose beyond giving context to the charged acts and come to a conclusion that an accused person had a propensity to commit an offence in the nature of those charged.
Paton v R [2011] VSCA 72 concerned an appeal by a man convicted of two counts of assault, one count of indecent assault, two counts of false imprisonment and one count of recklessly causing injury to his de facto partner. The offences were committed between 27 October 2008 and 29 October 2008. When being cross-examined during the trial the complainant gave evidence of past acts of violence committed by the applicant. The Crown did not rely on the evidence. Although the judge gave a separate consideration direction, the Supreme Court of Victoria – Court of Appeal found that the failure of the trial judge to give a clear direction to the jury not to engage in "impermissible propensity reasoning" was an error. Again, however, the facts in Paton were quite different to those in this case. The evidence complained of was of acts committed within a relationship between the applicant and the complainant that were distinct from and earlier in time from the charged conduct.
In WFS v R (2011) 33 VR 406 the applicant was convicted of an indecent act and incest against his 9-year-old daughter. The Crown case was that in the bathroom of their home the applicant squeezed his daughter's buttock and then put his finger in her vagina. He denied any suggestion of inappropriate conduct. At the trial there was evidence of the applicant's good behaviour. In the course of the trial, an interview with the complainant was tendered in which she made comments about remarks that the applicant had previously made to her, including that when he was in bed with the complainant's mother "she always wanted to suck his dick" and that "he wants to go to this place to pay women for sex and stuff". The Court of Appeal found that the jury should have been, but were not, instructed that they must not reason that because the applicant engaged in an inappropriate sexual discussion with his daughter on an earlier occasion, he was the kind of person who was likely to have carried out the charged conduct. I do not express a concluded view about whether I would have come to the same conclusion as to the necessity for a propensity warning in such a case. However the factual situation is far removed from the circumstances of this appeal. Again it involves a scenario where the charged conduct was denied and where the uncharged conduct was separate in time and removed from the charged conduct.
Jiang v R [2010] NSWCCA 277 is a case in which the discreditable conduct complained of was contemporaneous with the charged conduct. The appellant was convicted of an indecent assault and sexual intercourse without consent. The crimes were committed in the course of performing a massage on a female. Evidence was given that during the massage the appellant committed other acts that took place in the minutes before and after the charged conduct that amounted to indecent assaults but were not the subject of a charge. On appeal it was contended that the trial judge erred by not directing the jury as to the manner in which they may properly use that evidence. R A Hulme J, with whom the other members of the Court of Criminal Appeal agreed, concluded that the evidence of the acts complained of, outside the charged conduct, was admissible as part of a connected series of events and as evidence of the appellant's state of mind. However at [47] his Honour found that the evidence was "not tendency evidence; it was not led for the purpose of establishing that the appellant had a tendency to act in a particular way or have a particular state of mind", that nobody suggested to the jury that the evidence gave rise to a tendency or propensity, and there was no risk of impermissible substitution or tendency reasoning.
In considering whether there has been a miscarriage of justice, it is necessary to not just consider the passage objected to, but its context and taking the summing-up as a whole; Lee v Tasmania [2006] TASSC 92 per Blow J at [39]. The passage which, in this case, the appellant submits contributes to the risk of impermissible reasoning is part of a passage from the first part of his Honour's summing-up when he was addressing general matters concerning the criminal law and criminal trials. Properly understood, his Honour was explaining to the jury that they were to consider the evidence carefully and dispassionately. Perhaps it may have been better expressed, but his Honour was not inviting the jury to reason that the appellant was "an opportunistic predator, potentially", and I am satisfied that there is no real risk that they would have understood him to be doing so. To the contrary, he was cautioning the jury from acting on any such view they may have formed and that, as later in the same passage he explained, they were not to convict him "simply because you consider that some of his behaviour was poor or inappropriate". In the circumstances of this case that was the appropriate direction to give and, taken with the separate consideration direction, nothing further was required.
Counsel for the appellant contended that a question asked by the jury in the course of its deliberations discloses impermissible reasoning. I am not persuaded that the submission has merit. In the course of their deliberations the jury returned with a question. The transcript provides as follows:
"JURY FOREPERSON: Just regarding the fifth charge, indecently assaulting by touching her breast.
HIS HONOUR: Yes?
JURY FOREPERSON: We were wondering is there a specific occasion or is it related to all the breast touching?
HIS HONOUR: No, I'm sorry, that was very poor. My clear understanding – I should have repeated this and I'll be corrected about this – my clear understanding is that the prosecutor said that this related to the touching after the completion of the photo shoot. So any of the touchings in the photo shoot are not the subject of that charge."
Although the question discloses that count 5 was not adequately particularised and explained, it does not, in my view, disclose impermissible reasoning. It does no more than indicate that the jury was considering each count on the indictment separately and satisfying itself that it had a proper understanding of the facts which formed the basis of count 5 so that it could consider the evidence relating to it.
No direction such as that now contended by the appellant to have been necessary was sought by senior counsel for the appellant at trial. No mention was made of any risk that the jury may engage in an impermissible process of reasoning.
I am not persuaded that there was a miscarriage of justice by the failure to give any further direction in this case. Because no such direction was asked for I would refuse leave to appeal. In any event grounds 3 and 3A both fail and I would dismiss the appeal.
18
2