Grabski v Beier

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01644

RICHARD GRABSKI	Plaintiff
v
RENEE BEIER	First Defendant
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	3 April 2020
CASE MAY BE CITED AS:	Grabski v Beier
MEDIUM NEUTRAL CITATION:	[2020] VSC 156

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JUDICIAL REVIEW – Criminal charges – Convictions – De novo appeal to County Court - Re-hearing requirements – Credibility key issue – Complainants and accused not giving oral evidence on appeal – Tendering of video and audio recordings and transcripts of Magistrates’ Court hearing as evidence in de novo appeal – Whether Judge’s reasons adequate – Whether adequate consideration of plaintiff’s evidence – Whether appeal validly conducted – Whether agreement as to facts – Whether waiver of rules of evidence – Whether plaintiff could challenge agreed appeal hearing procedure - Jurisdictional errors – Evidence Act 2008 ss 190, 191; Criminal Procedure Act 2009 s 256

EVIDENCE – County Court appeal – Tender of video and audio recordings and transcript of Magistrates’ Court proceeding – Whether waiver of rules of evidence – Whether agreement as to facts – Evidence Act 2008 ss 190, 191

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Carr	Furstenberg Law
For the First Defendant	Mr B L Sonnet	Office of Public Prosecutions

HIS HONOUR:

The plaintiff, Mr Richard Grabski, seeks judicial review of orders of the County Court by which he was convicted of two counts of an indecent act with a 16 or 17 year old child under his care, supervision or authority in breach of s 49(1) of the Crimes Act 1958 (‘Crimes Act’).[1] The charges were heard in the Magistrates’ Court and following his conviction and sentence, which included four months imprisonment and a community corrections order, he appealed to the County Court where he was again convicted, but sentenced to a community corrections order without a term of imprisonment.
[1]Being the offence of ‘indecent act with 16 or 17 year old child’. Since repealed by Crimes Amendment (Sexual Offences) Act 2016 s 16.

I shall refer to the first defendant, who was the informant, as the defendant.

The plaintiff seeks judicial review arguing that the Judge made jurisdictional errors because the County Court Judge’s reasons were not adequate, that he did not adequately consider the complainants’ and his evidence by applying the criminal burden of proof and because of the appeal procedure adopted. The credibility of the main witnesses was a critical issue, none of them gave oral evidence, but the parties relied on a video and audio recordings and the transcript of the Magistrates’ Court hearing.

In my opinion, Mr Grabski is entitled to judicial review remedies because I consider that he has established the grounds of inadequate reasons and that the appeal procedure adopted, although by consent, was not that required by the legislation.

Background

The plaintiff was employed as a secondary school teacher. On 25 July 2017, he was charged with two counts of committing an indecent act with child under his care, supervision or authority in breach of s 49(1) of the Crimes Act against two students at the school where he taught.

The details of the first alleged offence were that on 7 June 2017, the plaintiff ‘… did an indecent act to a child 17 years of age to whom the accused was not married in that he rubbed the vagina of [the first complainant] and at the time she was under his care, supervision or authority’ (charge 1; ‘first complainant’).[2]
[2]Court Book, Grabski v Beier (Supreme Court of Victoria, Ginnane J, 6 February 2020) 12 (‘CB’).

The details of the second alleged offence were that on 23 November 2016, the plaintiff ‘… did an indecent act to a child 17 years of age to whom the accused was not married in that he placed his hand under the dress and rubbed the thigh of [the second complainant] and at the time she was under his care, supervision or authority’ (charge 2; ‘second complainant’).[3] The plaintiff was a teacher of the second complainant, but not of the first complainant.
[3]CB 13.

Magistrates’ Court proceeding

In June 2018, a Magistrate heard the prosecution of these charges (‘Magistrates’ Court proceeding’). At the hearing, the witness evidence led was a VARE statement by the first complainant and oral evidence from witnesses including the complainants and the accused.

On 29 June 2018, the Magistrate found the charges proved, and on 31 July 2018, the plaintiff was convicted and sentenced to a term of imprisonment of 4 months and an 18 months community corrections order. The plaintiff was also registered as a sex offender. The plaintiff appealed these orders to the County Court of Victoria pursuant to s 254 of the Criminal Procedure Act 2009 (‘CPA’), which provides that:

254     Right of appeal
(1)Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a)       the conviction and sentence imposed by the court; or
(b)       sentence alone.
(2)If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.

Section 256(1) of the CPA provides that:

256 Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.
(2)On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires-
(a) must set aside the sentence of the Magistrates’ Court; and
(b)may impose any sentence which the court considers appropriate and which the Magistrates’ Court imposed or could have imposed;
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.

[Subsections (3)-(5) omitted]

The appeal is by de novo rehearing.[4] In such a hearing, the informant or complainant ‘… starts again and has to make out his case and call his witnesses’.[5]
[4]DPP v Fricke [1993] 1 VR 369, 374.
[5]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 620 (Mason J) and see Candolim Pty Ltd v Garrett [2005] VSC 270, [28] (Hargrave J).

County Court proceeding

Commencing on Tuesday 5 February 2019 and continuing on the Wednesday and Thursday, Mr Grabski’s appeal was heard by a Judge of the County Court (‘County Court proceeding’).

In his judgment given the following Monday 11 February 2019, the Judge described the evidence led in the appeal as follows:[6]

The appeal proceeded before me [with] the prosecution by agreement replaying the audio-recorded evidence of both complainants given in the Magistrates’ Court and in respect of [the first complainant] there was a VARE statement made which went into evidence and I listened to the tape of her cross-examination by counsel representing the appellant in the court below.
By agreement between the parties I also had access to a transcript of the evidence given by a number of complaint witnesses, who gave evidence either of [the first complainant] or [the second complainant] having a short time after the alleged offences made statements consistent with the evidence given during the course of either the VARE or the cross-examination. I also have access to the evidence of a number of school teachers who were called during the course of the proceedings below, those teachers giving evidence about being in or near or in the vicinity of the library where the students concerned were undergoing or undertaking homework after school.

[6]CB 445.

I will restate the evidence that was before the Judge. He received in evidence the audio-visual recording of the first complainant’s VARE statement which comprised much of her evidence in chief in the Magistrates’ Court.[7] He also received in evidence an audio recording of the remainder of her evidence in chief and her cross-examination.
[7]Criminal Procedure Act 2009 ss 367, 368.

The Judge received in evidence the transcript and audio recording of the second complainant’s oral evidence in the Magistrates’ Court.

The Judge also received the audio recording of the evidence of the accused from the Magistrates’ proceeding and it was played in the appeal hearing.

The Judge also received the viva voce evidence of three character witnesses. It was agreed by both parties that the balance of evidence would not be played, but would be received in the form of the transcript of the Magistrates’ Court hearing, which was tendered as a prosecution exhibit. That transcript appears to have extended for 162 pages.

Neither counsel appearing before me was aware of a County Court appeal having previously being conducted in this manner.

Discussion about how the appeal was to proceed

The parties’ original position appears to have been that the tapes of the Magistrates’ Court hearing would be played to the Judge. At an early point in the appeal, it became apparent that the appeal was going to take some days if all of the video and audio recordings were played. The Judge informed the parties that he had a number of other commitments: he was awaiting a jury’s verdict, he had court commitments on the Friday and was soon to commence a circuit. He had been unable to commence the hearing of the appeal on the Monday of the week because of the jury proceeding, which was the first day upon which it was listed. The following exchange occurred at the end of the first day’s hearing after a substantial part of the DVD of the first complainant’s VARE had been played:[8]
[8]CB 390.

His Honour: Does this have to be done this way?
Mr Goodenough:[9] As I understand it, this is what was agreed previously, Your Honour, as to the method of –rather than calling the witnesses, whether Your Honour needs to hear ---
[9]Counsel for the first respondent.
His Honour: Do I need to hear it? Or can I read it? Is there anything to come? I mean, so far it’s been, shall we say, benign.
Ms Beech:[10] Yes, Your Honour. In my submission, hearing it, though, does [add] some colour and life to it and then it, well, perhaps does the opposite. But it does actually give the witnesses a little bit more character.
[10]Counsel for the appellant.
His Honour: That’s certainly the case.
Ms Beech: Yes, and it may actually---
His Honour: There’s certainly more character in hearing and seeing a witness than there is in reading it on transcript.
Ms Beech: Yes. Your Honour might---
His Honour: But is there anything that you make of what I’ll hear as opposed to what I can read?
Ms Beech: Really not so much with the other witnesses, I have to say. With this witness, in my submission, Your Honour should hear the recording.
His Honour: Very well. Very well.
Ms Beech: But the other witnesses, perhaps not. And I’ll have a discussion with Mr Goodenough this afternoon.
His Honour: It is a very slow way of doing things.

The discussion leading to the decision to admit the transcript as part of the prosecution’s evidence began on the Wednesday, the second day of the appeal and was as follows:[11]

Mr Goodenough: Your Honour, could I just indicate, discussions between the parties yesterday following the discussion with Your Honour, what is proposed is that, instead of playing the totality of the evidence, what we'd seek to do is to play, finish playing [the first complainant] and the other complainant, [the second complainant],[12] but then Your Honour would read, could read the evidence of the other witnesses, which is approximately 120 pages of transcript.
His Honour: Yes.
Mr Goodenough: And then Mr Grabski's evidence would be played as well, in due course.
His Honour: Yes. Well I was reflecting on what I said, last night. Of course it’s quite appropriate that the parties should require me to sit here and listen to it, because I think that the legislation provides that that be done. That being the only assurance that everyone has, that I’ve actually heard the evidence. And as I reflected on it, it seemed to me that that was the right way to do it.
Mr Goodenough: In that case, we’ll proceed that way, Your Honour.
His Honour: It might take a bit longer but I think that that’s probably what the law provides for.

[11]CB 393.

[12]The second complainant’s evidence was not played during the County Court proceeding.

Discussions continued either side of the luncheon adjournment as follows:[13]
[13]CB 396-98.

Mr Goodenough: … I had a discussion with my learned friend over the last break, and we discussed the provisions of s 191 of the Evidence Act. Your Honour made the comments you have about the hearing of the evidence, and we considered whether it might be that the balance of the evidence, save and except for Mr Grabski, could be an agreed fact under s 191. In the brief enquiries I've made, I haven't been able to find anything which suggests that cannot be done but I wanted to raise Your Honour, if Your Honour took the view that that could not be done, then we won't take it any further. But…
…
His Honour: I haven't looked at that provision.
Mr Goodenough: That's an agreed fact, Your Honour, between the parties - that it might still be something that could be done between the parties, and save some court time.
His Honour: I don't think - I'd have some doubts about that.
…
Mr Goodenough: … Your Honour. I can say, Your Honour, that the parties have had further discussions and it is obviously subject to Your Honour, but … as between the parties we would agree and consent to the court accepting … as evidence for the remainder of the prosecution case, the transcript of - - -
His Honour: Very well.
Mr Goodenough: - - - of that material.
His Honour: Very well. Well it might be helpful if we just go through it.
Mr Goodenough: Yes, Your Honour.
His Honour: You can point out to me the - - -
Mr Goodenough: Thank you, Your Honour. Excuse me, Your Honour. So that next, the next witness, Your Honour is - - -

Counsel then listed to the Judge the other witnesses whose evidence was contained in the transcript.[14] They were complaint witnesses, including people present at the library when the alleged offending occurred; a witness to identify and tender an exhibit; the principal and a teacher, who gave evidence with respect to emails and conversations which occurred with the first complainant; and, the informant. A number of documents were tendered in evidence including a screenshot of Facebook conversations between the second complainant and a witness,[15] a statement from the first complainant’s mother,[16] police officer notes[17] and emails.[18]
[14]CB 398-402.
[15]CB 403.
[16]CB 404.
[17]CB 404.
[18]CB 404.

The appeal continued in the agreed manner and concluded on its third day, Thursday 7 February. On resumption of the appeal hearing that morning, his Honour confirmed he had read the evidence of the witnesses mentioned above, stating:[19]

I’ve read the evidence of all of the witnesses that we discussed yesterday.

[19]CB 409.

The recorded evidence of Mr Grabski was then played to the Court.[20] His Honour reserved his judgment until the following Monday 11 February when he convicted the plaintiff of both charges and sentenced him to a community corrections order for three years requiring the undertaking of 200 hours of unpaid community work and undergoing treatment for rehabilitation. Additionally, having been convicted of a sexual offence, the plaintiff was registered as a sex offender and a forensic sample was made.[21]
[20]CB 413.
[21]CB 460.

The Judges’ reasons

In his reasons which I set out in detail later, the Judge summarised the evidence received; identified that the appeal turned on whether or not he accepted the evidence of each of the complainants as proof of the allegations beyond reasonable doubt; stated that the prosecution bore the onus of proof; referred to evidence which he considered cogent, including the plaintiff’s email from his own private email to the first complainant, which stated ‘Meet after school tomorrow? B2B’; concluded that the prosecution had proved its case beyond reasonable doubt; stated that he considered that the complainants’ evidence was consistent; and that he rejected the plaintiff’s evidence, including his exculpatory explanation for sending the email.

The plaintiff gave evidence in the Magistrates’ Court proceeding that he did not mean to send the email from his personal email address. He said that the first complainant had offered him a piece of paper on which her email address was written after confiding in him details of an unrelated incident in which she had been propositioned by another man to send photos of herself ‘in a state of undress’.[22] The plaintiff said that he refused the paper but saw the email address and saved it to memory given it was ‘a pretty generic email’.[23] He said that he sent the email because he wanted to speak to the first complainant about the other incident.[24]
[22]CB 308.
[23]CB 309.
[24]CB 308-11, 437.

Grounds of review

The plaintiff filed an originating motion for judicial review, which contained the following grounds which were relied on at the hearing:

2.In dismissing the appeal against conviction, the learned County Court Judge:
a.Failed to give adequate reasons for convicting the Plaintiff, and in particular:
i.Did not articulate how he found the two complainants to be ‘consistent and supported by a deal of complaint evidence which shows consistency’, given that the evidence of the two complainants had been inconsistent and at variance with the complaint evidence;
ii.Did not articulate how the character evidence had affected his reasoning;
iii.Did not adequately articulate his reasons for rejecting the Plaintiff’s evidence.

b.[Omitted];[25]
[25]The plaintiff abandoned this ground.
c.Erred in law in the way that he approached the Plaintiff’s exculpatory account, in that:
i.The learned County Court Judge concluded that he did not accept that Plaintiff’s account, and dismissed it from consideration on that basis;
ii.In so doing, the learned County Court Judge treated the Plaintiff’s account as relevant only if it was positively accepted;
iii.The proper approach to the Plaintiff’s account required that it be weighed in the balance, not only if it was positively accepted, but if it might be accurate, such that is contributed in giving rise to a reasonable doubt.

3.The learned County Court Judge determined the case by reviewing the audio recordings and transcripts of the evidence that certain witnesses had given in the hearing the Magistrates’ Court, and in so doing failed to conduct a rehearing as is required by s 256 of the Criminal Procedure Act 2009.
4.By determining the case on the basis of the audio recordings and transcripts of the evidence that certain witnesses had given in the hearing in the Magistrates’ Court, the learned County Court Judge permitted the parties to waive the rules of evidence, without satisfying himself of the preconditions for such waiver established by s 190 of the Evidence Act 2008.

The plaintiff developed these grounds by advancing four main arguments in support of his claim for judicial review:

(a) that the Judge failed to provide adequate reasons for his decision;
(b) that the Judge failed to adequately consider the evidence of the accused;
(c)that the Judge erred in apparently proceeding on the basis that ss 190 and 191 of the Evidence Act 2008 permitted the procedure adopted for the conduct of the appeal either by a waiver of the rules of leading evidence or, agreement about facts by tender of a transcript of the evidence led in the Magistrates’ Court; and

(d)that the procedure adopted was not that of an appeal de novo as was required by s 256 of the CPA.

Ground 2(a) – Inadequate reasons
Plaintiff’s submissions

Ground 2(a) alleged that the Judge failed to give adequate reasons for convicting the plaintiff. Counsel identified three particulars of this ground, being:

(a) the lack of any reference to consideration of the key arguments made by the plaintiff’s counsel about the unreliability of the first complainant;

(b)the lack of any ruling on the tendency and coincidence evidence relied on by the prosecution; and
(c)the lack of an explanation of how the complainants’ evidence was said to demonstrate consistency.

Counsel submitted that because an appeal under s 256 of the CPA was the last step available to a convicted person to challenge findings of fact, the Judge’s reasons needed to be in sufficient detail to enable the parties to understand how he reached his conclusions of fact, so that they could consider whether there was an error of law.[26] In this appeal, because the Judge received or considered much of the evidence, including the Magistrates’ Court transcript, in chambers, the Judge was required to provide detailed reasons to demonstrate that the transcript had been appropriately taken into account and thereby reinforce public confidence in the administration of justice. The reasons needed to do the work usually done by the discussion about the evidence that would occur in a public hearing. The reception of evidence in a public hearing demonstrated that it had been publicly examined. The nature of the public hearing was important.[27] Counsel referred to the statement of Heydon J in Stubley v Western Australia, that:[28]

[T]he trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty, except when tried under the safeguards so carefully provided by the law.

[26]See, eg, Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 4 VR 28.

[27]Cesan v The Queen (2008) 236 CLR 358, [71]-[72] (French CJ).

[28]Stubley v Western Australia (2011) 242 CLR 374, 398-9 (Heydon J dissenting as to the result) citing R v Lee Kun [1916] 1 KB 337, 341 (Lord Reading CJ, Scrutton, Low JJ).

Counsel also relied on R v Zvonaric,[29] which concerned a special hearing which was to be conducted ‘as nearly as possible as if it were a criminal proceeding’ under the Mental Health (Criminal Procedure) Act 1990 (NSW). Such a hearing can be held when a person is unfit to be tried. The entire prosecution case was presented by the tender of unsworn statements of witnesses and police officers involved in the accused’s arrest. When considering the adequacy of reasons provided by the trial judge in such circumstances, Spigelman CJ, with Sully J agreeing, said that:[30]

The content of the required statement of reasons may be affected by what has happened by way of evidence and submission in open court. In the present case I have come to the conclusion that the statement of reasons was defective.

[29](2001) 54 NSWLR 1.

[30]Ibid [6].

Spigelman CJ noted that the tender of evidence by way of witness statements was not a contravention of the relevant legislation governing the hearing.[31] His Honour stated:[32]

It may be unusual, but it is not impermissible, for the substantive evidence in a criminal proceeding to be given by means of a witness statement.

[31]Ibid.

[32]Ibid [18].

Adams J dissented on this point, noting that:

‘Mere convenience cannot, in my opinion, justify tender without public exposure of evidence directed to proof of guilt or, as in a special hearing, whether the person committed the offence charged. Documentary and other exhibits may fall into a different class but, in my opinion, they should be dealt with in a way which enables the public, at least, to gather an impression as to their content. This is a matter of substance, not form, and thus in some cases will involve matters of degree. However, publicity of trial, including the evidence, is no empty ritual (as I take the Crown prosecutor’s reference to “magic” to mean). It is an important safeguard of the due administration of justice and is no less necessary where there is a special hearing. Indeed, because of the very situation of a person charged in such a proceeding, it may well be more important. The conduct of an entire trial by mere tender of documents, the substance of which is not published during the proceedings is, to my mind, completely unacceptable, even where an accused, fully alive to his or her rights and the nature of the proceedings, consented’.[33]

[33]Ibid [42] (Adams J).

That case raised different issues, but the principles discussed are relevant. However, as is discussed below, I consider that in a criminal proceeding in which the credibility of key witnesses is a principal issue, that oral evidence from those witnesses including the accused if they choose to give evidence, even if by the playing of video evidence recorded pursuant to legislative procedures such as VAREs, will usually be required.

Counsel also referred to a passage in Ta v Thompson,[34] which analyses relevant authorities and in which Whelan J stated:[35]
[34][2012] VSC 446 (Whelan J) appeal dismissed in Ta v Thompson (2013) 46 VR 10. After I reserved judgment, the plaintiff, on behalf of both parties, drew my attention to Bookless v Smith [2020] VSC 56, where Priest JA refers to a number of authorities relevant to adequacy of reasons given by a Magistrate.
[35][2012] VSC 446, [30]-[33] (emphasis added).

Where there is no right of appeal in relation to factual findings, the requirement for the provision of reasons as to factual findings is less rigorous. This is such a case.
In Soulemezis, McHugh JA (as he then was) observed:
Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary ‘for him to go further and say, for example, that the reason was based on demeanour’: Connell v Ackland City Council [1971] 1 NZLR 630 at 632–633 per Chilwell J.

Very recently, in Douglass v R, the High Court has indicated that whilst McHugh JA’s observation might be valid in the context in which it was made, being consideration of the reasons given by a judge in a compensation case, it was not applicable to a criminal case where there was a conflict between the complainant’s evidence and evidence given by the defendant. Such an approach would, the High Court held, fail to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to another, but rather depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. In a criminal case, even if a judge were not persuaded by a defendant’s evidence, and preferred the evidence of the complainant, he or she could not convict unless satisfied that it was not reasonably possible that the defendant’s evidence was true.
More generally, in Douglass, the High Court recorded that it was common ground in that matter that where a judge is returning a verdict following a criminal trial without a jury the judge is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.

The Court of Appeal dismissed an appeal: Ta v Thompson.[36] Osborn JA stated:

Where a judge’s decision turns upon the acceptance or otherwise of a particular witness the judge’s reasons for failing to be persuaded by that witness may be capable of no greater statement than a summary statement.[37]

(i) Unreliability of the first complainant’s evidence

[36](2013) 46 VR 10 (Osborn, Priest and Beach JJA).

[37]Ibid [52].

At the rehearing in the County Court, counsel for the plaintiff submitted that the account of the first complainant was ‘implausible’ and ‘unbelievable’. In his reasons, the Judge stated: ‘I accept the evidence of each of the complainants as proving the prosecution case beyond reasonable doubt and I accept the evidence of [the first complainant] that she was touched’.[38] Counsel submitted that the Judge erred by not explaining why he accepted the first complainant’s evidence particularly as the incident was alleged to have involved the plaintiff touching her for 30 minutes in a public part of the school library with students and teachers present at adjoining tables.[39] The first complainant’s description of the incident included that she had been saying 'stop', that students and teachers had noticed what was occurring and including one that she identified. But no student or teacher gave evidence that they had seen or heard any such thing. In those circumstances, his Honour’s reason were inadequate by simply saying that the first complainant’s evidence was ‘consistent’.
[38]CB 447; see also T 36.
[39]T 41-2, 46.

The plaintiff also referred to other criticisms of the first complainant’s evidence which the Judge should have addressed in his reasons including her differing and inconsistent accounts of the parts of her body that the plaintiff had touched.

(ii) Tendency and coincidence evidence

Counsel for the plaintiff submitted that the Judge appeared to rely on coincidence evidence, but failed to explicitly rule on the issue of the admissibility of the tendency and coincidence evidence listed in the prosecution’s notice. He was obliged to state whether he had taken it into account and if so, in what manner. The tendency notice included plaintiff’s tendency as including to engage in a specific sexual act by touching the upper leg and sexual organ region of his young female students, to exploit his position of authority as a teacher to provide himself with the opportunity to be able to act on the sexual interest; a willingness to make sexually inappropriate advances towards female students in the context of discreet situations (particularly in the school library) and a willingness to make flesh to flesh contact with his young female students, particularly through use of his hand.[40]
[40]CB 1239-46.

The prosecution’s coincidence evidence included reference to the similar location of the offending at the school library, the use of a private electronic message by the accused to contact the complainants and the ethnicity and gender of the complainants.

In the course of discussion, the Judge referred to particular matters that he found compelling in respect to coincidence evidence, namely, that both alleged offences occurred in the library, after school and in public view and both complainants were in a student/teacher relationship.[41] Shortly thereafter, the Judge stated to the prosecutor:[42]

Your strongest argument’s coincidence, isn’t it?

(iii) Consistency of the complainants’ evidence

[41]CB 435.

[42]CB 438.

The final issue in this ground was that the Judge did not explain his finding that the complainants’ evidence demonstrated consistency. He referred to their consistency in the following passage:[43]

Each of the complainants in my view was consistent in their evidence and supported by a deal of complaint evidence which tended to show in my view that each complaint was consistent. I do not accept the evidence of the appellant. The appellant’s explanation for having sent the email on 8 June 2017 to [the first complainant] on his private email I have a great deal of difficulty accepting. For these reasons each of the charges is found to be proved and the appeal against conviction on each charge is dismissed.

[43]CB 447-8.

Counsel submitted that this reasoning was inconsistent with the applicable legal principle that ‘… if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit’.[44] The reasons suggested that the Judge focused on whether he positively accepted the plaintiff’s evidence, rather than whether the prosecution had established its case beyond reasonable doubt. In a sense, the argument was that he had reversed the onus of proof.
[44]R v Anderson (2001) 127 A Crim R 116, [26] (Kirby J).

Defendant’s submissions

The defendant submitted that the Judge’s reasons were adequate bearing in mind the charges and nature of the appeal. The issue in the appeal was whether the Judge accepted the evidence of the complainants as proving the charges beyond reasonable doubt. His Honour did so. He described the nature of the evidence that was led, including the plaintiff’s private email suggesting a meeting with the first complainant after school; referred to the principles of law applicable to the case; summarised the material evidence; and stated his material findings of fact, and his reasoning leading to those findings.

(i) Unreliability of the first complainant’s evidence

In his reasons, the Judge found that the evidence was made more reliable by the fact that the complainants reported the offences shortly after they occurred, that is, they were both recent complaints. Specifically in relation to the first complainant, the Judge made reference to her reporting the incident to her mother shortly after the alleged offending. Further, counsel for the defendant submitted that the unreliability of the first complainant’s evidence was answered by her significant intellectual disability, which was not in dispute.

(ii) Tendency and coincidence evidence

His Honour had not placed any substantial reliance on tendency and coincidence evidence, but rather had accepted the complainants’ allegations to the requisite criminal standard. He accepted that there was confirmatory evidence to support the complainants’ evidence, particularly the private email.

Nonetheless, the defendant submitted that the Judge could have relied on tendency and coincidence evidence that would have been particularly compelling. Significant similarities existed between the two incidents and the offending was particularly brazen, analogous to the offending in Hughes v The Queen.[45]

(iii) Consistency of the complainants’ evidence

[45]Relying on Hughes v The Queen (2017) 263 CLR 338.

The defendant argued that there was factual material upon which inconsistencies in the first complainant’s evidence could be explained. She had a significant intellectual deficit and it was not surprising that she may not have given a consistent narrative, and may have embellished the allegations. While this fact should have been included in a perfectly constructed set of reasons, the existence of the first complainant’s intellectual deficit was not challenged and the fact that the Judge did not refer to it did not make his reasons inadequate.

The Judge also referred to the evidence of witnesses to whom the complainants had complained about the plaintiff’s actions.

Analysis of Ground 2(a) – Adequacy of reasons

The level of detail required for reasons to be adequate depends on the issues in the case and their complexity.[46] Where reasons are inadequate, a judicially reviewable error of law exists.[47]
[46]Wainohu v New South Wales (2011) 243 CLR 181.
[47]Waterways Authority v Fitzgibbon (2005) 221 ALR 402; Perkins v County Court of Victoria (2000) 2 VR 246; Ta v Thomson [2012] VSC 446 citing Bloomfield v Haralabakos [2007] VSC 279 and Alliance Insurance Ltd v Massoud [1989] VR 8.

Douglass v The Queen[48] suggests that in criminal trials conducted by judge alone, where credibility is in issue, reasons may be insufficient if they simply state that the complainants are believed over the accused.
[48](2012) 290 ALR 699.

The following parts of his Honour’s reasons are relevant to this argument about adequacy of reasons:

This appeal hinges on whether or not I accept the evidence of each of the complainants as proof of the allegations beyond reasonable doubt. The prosecution bears that onus. I completed the hearing of the evidence in the appeal on Thursday of last week, … that evidence included the calling of three character witnesses on behalf of the appellant.[49]
At all times concerned the appellant was a school teacher employed at…In 2017 he was a teacher of [the second complainant], who is the complainant in Charge 2. He at no time was directly involved in the teaching of [the first complainant], the complainant in Charge 1.
[The first complainant] gave evidence of attending the library or homework room after school on 7 June 2017. She gave evidence that having attended the homework room she sat at a table in the room next to the appellant and she gave evidence that during the course of that encounter the appellant touched her on the thigh and under her dress up to but outside of her vagina. She gave evidence that she went home and told her mother. A statement from the mother was admitted into evidence. That was in the nature of complaint evidence.
Somewhat strangely, the [first complainant] said that she was contacted the following day by the appellant, who sent her an email, which went into evidence which said, ‘Meet after school tomorrow? B2B’. The reference to B2B was a reference to the room in which the appellant was a teacher. He was not the teacher of [the first complainant]. That email was sent on the private email, as opposed to the school email, to the complainant. The appellant said in his evidence that it was sent on his private email by mistake.
The witness [first complainant] came forward after the police were called in and the school acted in respect of the complainant in Charge 1, [first complainant]. She gave evidence that on 23 November of the previous year, 2016, she was touched on the knee and under her dress by the appellant, who was her maths teacher, at a time when he was attempting to assist her with her homework in the library after school.
There were a number of complaint witnesses in respect of [the second complainant], especially the witness [complaint witness].
The appellant in his evidence denied any inappropriate touching. In respect of [the second complainant] it was specifically put by counsel acting for the appellant below that there was some touching, but it was put that it was inappropriate or inadvertent touching during the course of a discussion where the appellant was attempting to assist his student with her homework.
I recognise the importance of these proceedings to the appellant and for that reason I have given this matter a great deal of consideration since last Thursday and taken the opportunity to again go over the evidence. I accept the evidence of each of the complainants as proving the prosecution case beyond reasonable doubt. I accept the evidence of [the first complainant] that she was touched on the thigh and under her dress up to her vagina by the appellant on 7 June 2017. I also accept the evidence of [the second complainant] that she was touched on her thigh by the appellant on 23 November 2017.
Each of the complainants in my view was consistent in their evidence and supported by a deal of complaint evidence which tended to show in my view that each complainant was consistent in the evidence that they gave. I do not accept the evidence of the appellant. The appellant’s explanation for having sent the email on 8 June 2017 to [the first complainant] on his private email I have a great deal of difficulty in accepting. For these reasons each of the charges is found to have been proved and the appeal against conviction on each charge is dismissed.[50]

[49]CB 445-6.

[50]CB 446-8.

The Judge, of course, did not have the Magistrate’s reasons, as it was a de novo appeal, but they included substantial detail and do provide a reference point for the credibility issues that were raised by the evidence that was before his Honour in recordings and transcript.[51] They included the Magistrate’s rejection of some of the first complainant’s evidence, including that in the library, with other students and teachers present, she had loudly protested about the plaintiff’s conduct and that he had forced her to touch his penis. The Magistrate stated that he was not required to accept or refuse to accept the whole of a witness’ evidence. Most of the issues mentioned were put to the Judge during the appeal by the plaintiff’s counsel.
[51]CB 349-57.

I accept that when a case is conducted on recordings or transcripts of evidence given at the primary hearing and not all of that primary evidence is read or played during the appeal hearing, that it is especially important for the Judge to deal in some detail with the points that the evidence raises and on which the parties rely.[52] The plaintiff was entitled to his Honour’s reasons for concluding that the complainants’ evidence was consistent. There is also a public interest in the reasons for conviction being explained, even though this appeal was heard in a closed court. The plaintiff’s case was that the first complainant’s case was ‘entirely implausible’. While his Honour mentioned the significant evidence of the private email, a number of other issues going to the complainants’ credibility required to be addressed. These were the first complainant’s account of what happened in the library and her differing and inconsistent accounts of the part of her body that the plaintiff touched.
[52]Section 74 of the Criminal Procedure Act2009 placed limits on closing addresses.

In respect of the second complainant, the plaintiff denied that there was any indecent touching, but appeared to concede that there had been some touching while he was attempting to assist her with her homework. His Honour noted that there was ‘a deal of complaint evidence which tended to show that each complainant was consistent in the evidence that they gave’. The Judge’s reasons do not explain why he accepted the second complainant’s account of events rather than the plaintiff’s. The significant evidence of the private email concerned an email to the first complainant, but it occurred more than six months after the alleged offence against the second complainant so had no relevance to that charge.

His Honour made no reference to the character evidence that formed part of the plaintiff’s case and was relevant to the plaintiff’s defence of both charges, both as to the unlikelihood of guilt and as to the credibility of the accused who denies his guilt.[53]
[53]Attwood v The Queen (1960) 102 CLR 353, 359; Bishop v The Queen (2013) 39 VR 642, 651.

The Judge’s question to the prosecutor suggested that he thought that the coincidence of the two events was significant. In those circumstances, I consider that the parties were entitled to know whether his Honour had taken coincidence into account in reaching his decision, but the reasons do not expressly address that issue.

For the above reasons, I consider with respect, that ground 2(a), that the Judge’s reasons were not adequate has been established.

Ground 2(b) was abandoned.

Ground 2(c) – The Judge’s consideration of the plaintiff’s evidence
Plaintiff’s submissions

As previously mentioned, at the end of his reasons, his Honour stated that he accepted the complainants’ evidence as proof of the charges beyond reasonable doubt.[54]
[54]CB 447.

The plaintiff challenged the Judge’s use of the words ‘I do not accept’ and ‘I have a great deal of difficulty in accepting’ when considering his evidence in his reasons. The plaintiff argued that the reasoning thereby focused on whether the Judge positively accepted his evidence, and whether having decided not to positively accept it, he concluded it had no residual value.

The Judge said that he had a ‘great deal of difficulty in accepting’ the plaintiff’s explanation for sending the private email.

The plaintiff relied on the statement by Kirby J, when delivering the judgment in the New South Wales Court of Criminal Appeal in R v Anderson,[55] as an applicable summary of how the Judge should have approached his evidence:[56]

First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

[55]R v Anderson (2001) 127 A Crim R 116.

[56]Ibid [26].

The plaintiff argued that the Judge did not take into account that, although he might have found difficulty in accepting the plaintiff’s evidence, it might have been true, in which case he ought to have allowed the appeal against conviction.

Defendant’s submissions

The defendant disputed that the Judge had not properly considered the plaintiff’s evidence. His Honour accurately described the substance of the plaintiff’s evidence as one of denials of the alleged criminal conduct. He did not accept those denials and was not obliged to state that his outcome of his reasoning came within one of the three results listed in R v Anderson.[57]
[57]Ibid.

Analysis of Ground 2(c) – The Judge’s consideration of the plaintiff’s evidence

As the Judge stated, the outcome of the appeal turned upon whether he accepted the evidence of each complainant as proof of the charges beyond reasonable doubt. His Honour did accept that evidence and did not accept the evidence of the plaintiff. His use of the words ‘difficulty in accepting’ in respect of the plaintiff’s evidence has to be read together with his initial statement that he did not accept the plaintiff’s evidence.

There is no indication in his Honour’s reasons that he thought the plaintiff’s evidence on the critical facts might be true, to refer to the second possible position described in R v Anderson[58] upon which the plaintiff relied. That case contained suggested directions for a trial judge to use when instructing a jury on the question of credibility. They were not words that his Honour, in deciding a de novo appeal, was obliged to employ. As mentioned, his Honour stated that he did not accept, and therefore did not believe, the plaintiff’s evidence. In my opinion, his Honour’s judgement read as a whole makes clear that he considered the prosecution’s case proved beyond reasonable doubt. Although I have accepted the plaintiff’s submission that his Honour’s reasons were inadequate because they did not explain his path of reasoning on credibility issues about the complainants’ evidence, I do consider that the plaintiff has not established that the Judge erred in law in his consideration of the plaintiff’s evidence.
[58]Ibid.

Ground 2(c) is not established.

Ground 4 – Waiving the rules of evidence without the satisfying the requirements of the Evidence Act

I will consider ground 4 before ground 3.

Ground 4 alleges that by determining the appeal on the basis of the audio recordings and transcripts of witnesses, that the Judge permitted the parties to waive the rules of evidence, without satisfying himself of the preconditions for such waiver required by s 190 of the Evidence Act. In the course of argument discussion also occurred about whether the procedure adopted could be supported as an admission of facts under s 191 of the Evidence Act.

Sections 190 and 191 of the Evidence Act 2008

Ground 4 involves the interpretation and application of ss 190 and 191 of the Evidence Act which provide for the waiver of the rules of evidence, and agreements as to facts. Section 184 provides that an accused may admit matters of fact and give consents. The relevant parts of ss 190 and 191 are:

190 Waiver of rules of evidence
(1)The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of—
(a)Division 3, 4 or 5 of Part 2.1; or
(b)Part 2.2 or 2.3; or
(c)Parts 3.2–3.8—
in relation to particular evidence or generally.

(2)In a criminal proceeding, a consent given by an accused is not effective for the purposes of subsection (1) unless—
(a)the accused has been advised to do so by the Australian legal practitioner of the accused; or
Note
Paragraph (a) differs from the Commonwealth Act and New South Wales Act.
(b)the court is satisfied that the accused understands the consequences of giving the consent.

[sub-sections 3–4 omitted]

191 Agreement as to facts
(1)In this section, agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
(2)In a proceeding—
(a)evidence is not required to prove the existence of an agreed fact; and
(b)evidence may not be adduced to contradict or qualify an agreed fact—

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact—
(a)is stated in an agreement in writing signed by the parties or by Australian legal practitioners or prosecutors representing the parties and adduced in evidence in the proceeding; or
(b)with the leave of the court, is stated by a party before the court with the agreement of all other parties.

Plaintiff’s submissions

Counsel for the plaintiff submitted that no rule of evidence had been waived in the appeal under the power in s 190 of the Evidence Act. He referred to s 26 of the Evidence Act, which provides for the Court’s control over the questioning of witnesses and to s 29, which deals with the manner and form of questioning witnesses and their responses. He argued that rules of evidence contained in them had not been waived, but that in any event they had nothing to do with the procedure adopted in the appeal. Section 29 did not permit dispensing with witnesses altogether. In any event, there needed to be a minimum level of formality in recording what rules of evidence were waived and no such step had been taken.

The parties also referred to s 191 of the Evidence Act, which deals with agreement as to facts. This section is not referred to in the plaintiff’s grounds, but it was the basis of the parties’ justification to the Judge of the procedure they requested be adopted, so I will consider the submissions about it.

The plaintiff noted the mandatory preconditions to the operation in s 191(3), which requires either a written agreement or leave of the court before a fact is considered an ‘agreed fact’. There was no such written agreement and no leave of the Court. Section 191 required clarity as to description of the agreed facts. The transcript of the Magistrates’ Court hearing which contained the parties’ conflicting evidence and arguments was not an agreed fact.

Defendant’s submissions

The defendant submitted that the parties’ agreement to use the audio recordings and transcripts as evidence before the County Court was an agreed fact pursuant to s 191(3)(b) of the Evidence Act. The agreed fact was that the audio recordings and transcripts formed the balance of the prosecution case. But as I understood the argument, this was not the defendant’s primary submission.

The suggestion that the transcript was an agreed fact was put to his Honour during the appeal and it appears that he ultimately accepted it, or at least was prepared to proceed on the basis, that it was correct.

In respect of s 190 of the Evidence Act, the defendant submitted that the Judge did not fail to comply with its terms in permitting the parties to waive the applicable rules of evidence and lead evidence by the playing of audio tapes and the reading of the transcript. The plaintiff was represented by counsel and solicitor, and the parties consented to the evidence being presented in that form. The procedure was the parties’ idea, not the Judge’s.

The defendant accepted that there was no applicable legislation authorising the tendering of transcripts of previous evidence in lieu of adducing oral evidence. But, the waiving of the rules of evidence related to the procedure for the adducing of evidence before the Court, specifically the procedures governed by ss 26 and 29, which could be waived pursuant to s 190.

The defendant submitted that there was no immutable rule that evidence had to be given orally, and relied on the High Court decision in Butera v Director of Public Prosecutions (Vic) (‘Butera’).[59] The touchstone for assessing the validity of the procedure adopted about the leading of evidence is whether unfairness resulted. Although the procedure adopted in this appeal was not a template for future appeal hearings, the plaintiff had not been treated unfairly, but had obtained a forensic advantage in not being cross-examined a second time. He had sought the procedure to which the Judge agreed. He was unlikely to have obtained any alteration in the evidence of other witnesses if his counsel had been able to cross-examine them again.
[59]Butera v DPP (Vic) (1987) 164 CLR 180 (‘Butera’).

Analysis of Ground 4 – Waiving the rules of evidence

It is important that I consider, not least in fairness to his Honour, the significance of the fact that the parties agreed to the procedure adopted on the appeal and indeed urged it on the Judge,. As the defendant submitted, the plaintiff did not see any unfairness in the procedure adopted, he agreed to it. The parties sought to tender large parts of the evidence as video and audio recordings and transcript. Because of this agreed course, I raised with the parties whether the Court should allow this agreed process to now be attacked, particularly if this was the only ground on which the plaintiff succeeded. While jurisdiction cannot be conferred by consent,[60] judicial review remedies are generally discretionary.[61]
[60]Ridley v Whipp (1916) 22 CLR 381.
[61]Radojevic v JDA Design Group Pty Ltd & Anor (No 2) [2017] VSC 796, [71].

The defendant did not take the point that the plaintiff could not now attack the procedure adopted in the County Court.

The plaintiff by way of justifying his course referred to the High Court decision in Kirk v Industrial Court (‘Kirk’),[62] in which the parties agreed to the prosecution calling the accused as a witness. By approving this procedure, the High Court considered that the Industrial Court of New South Wales had ‘… misapprehended a limit on its powers …’ and granted judicial review remedies.[63] Counsel submitted that the present circumstances were analogous to Kirk and that the decision to proceed on the transcript evidence resulted in the learned Judge conducting a hearing that was neither authorised by the nor in accordance with the laws of evidence.
[62]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (‘Kirk’).
[63]Ibid 575.

I note that Kirk related to a waiver of a rule of evidence to which s 190(1) of the Evidence Act did not apply.[64] But I accept that because of the interest of the State in the proper conduct of criminal proceedings, the Court should not refuse remedies if jurisdiction has not been validly exercised. The consent of the parties cannot alter the requirements of a statutory appeal.[65] I therefore consider that the plaintiff may pursue his claims despite that fact that he agreed to the procedure adopted in the County Court.
[64]Kirk concerned s 17 of the Evidence Act which deals with the competence and compellability of an accused in criminal proceedings.
[65]Barendse v Comptroller-General of Customs (1996) 136 FLR 243, 250 (‘Barandse’).

So far as s 190 is concerned, the Judge did not state that he was acting to waive the rules of evidence to admit the audio and video evidence and transcripts. He did not address the matters that s 190(3) required him to take into account if he was exercising the discretion conferred by s 190(1). Moreover, the County Court transcript does not contain any mention of s 190, nor the any application by the parties for the waiving of rules of evidenced contained in ss 26 and 29.

Section 26 is directed to the questioning of witnesses, rather than dispensing with witnesses all together. Section 29 relates to the manner and form of questioning witnesses and their responses and also does not deal with dispensing with the need for witnesses to give oral evidence.

In my opinion, s 190(1) was not relied on by the Judge, nor did the parties make any serious suggestion that they were seeking to invoke it. There was no clear statement of the rules being dispensed with, so as to enable the defendant to understand the consequences of consenting to a waiver of evidentiary rules pursuant to s 190(2).

It is also significant that a criminal proceeding is a public matter and it is important that the rights of parties are not waived unless the necessary statutory procedures are followed.[66] Especially in a case like the present, where credit is a key issue, the exercise of the discretion to waive rules of evidence so that critical witnesses are not called or do not give evidence by video recording when legislation permits, could only be validly exercised if adequate consideration was given to how the Judge was to determine issues of the credibility of key witnesses.
[66]See Stubley v Western Australia (2011) 242 CLR 374, [88].

Although it is not mentioned in any of the plaintiff’s grounds, as it was argued, I will state my conclusions on the suggestion that s 191 of the Evidence Act authorised the procedure that was adopted. The parties did tender the transcript evidence as a purported agreed fact. Whilst I am satisfied that both parties agreed to the tendering of audio recordings and that the Court permitted that to occur, even if leave was not formally granted, I am not satisfied that the transcript was an ‘agreed fact’ within s 191(1). The transcript contained the evidence of a number of witnesses, many of whom disagreed on the facts, not least the complainants and the accused.

Thus, the only ‘agreed fact’ was that both parties agreed to the tendering of transcripts, as the facts contained in the words of the transcript were still to be proved in accordance with the practice and procedures of the County Court.

Even if s 191 can be taken as permitting the admission of the transcript and recordings as a true record of the Magistrates’ Court proceeding, it did not alter the requirements of a de novo appeal under s 256 of the CPA.

But to return to ground 4 which concerns s 190 and the waiver of the rules of evidence, as no application was made to the Judge under s 190, I do not consider that the ground has been established. If an application had been made under s 190 for the waiver of the requirements of s 26 and s 29, to permit the procedure of tendering recordings and transcripts, it would have to have been refused, because the waiver of those sections would not have thereby permitted the procedure adopted on this appeal.

Ground 4 is not established.

Ground 3 – The procedure adopted in the appeal hearing

Ground 3 is that the Judge determined the case by reviewing the audio recordings and transcripts of the evidence of certain witnesses in the Magistrates’ Court hearing and in so doing failed to conduct a rehearing as required by s 256 of the CPA.

Section 254 of the CPA created a right to appeal against the conviction and sentence imposed by the Magistrates’ Court. For ease of reference, I will again set out its relevant terms and those of s 256.

254 Right of appeal
(1)Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a)the conviction and sentence imposed by the court; or
(b)sentence alone.

256 Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.
(2)On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires—
(a)must set aside the sentence of the Magistrates' Court; and
(b)may impose any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed; and
(c)may exercise any power which the Magistrates' Court exercised or could have exercised.

Plaintiff’s submissions

The plaintiff submitted that the de novo appeal available under s 254 is effectively a re-trial where parties are required to start their case again and to call witnesses or recall them to give fresh evidence before the County Court.[67] The Judge was required to ‘… deal with the whole matter afresh …’[68] He submitted that as much of the prosecution evidence was contained in the tendered transcripts, instead of a de novo appeal, an appeal by way of rehearing was conducted and that was not permitted by the CPA.
[67]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 620.
[68]R v Longshaw (1990) 20 NSWLR 554, 560 (Gleeson CJ).

The plaintiff disputed that he had gained any forensic advantage from the process adopted and that the opportunity for a second cross-examination of the complainants would have been forensically advantageous to him. By only receiving the recording of the evidence of the complainants and the accused, the Judge was unable to assess the credibility and demeanour of the two complainants to the degree required in a criminal proceeding.[69] This was a judicially reviewable error.
[69]T 23.

Defendant’s submissions

The defendant submitted the plaintiff’s case was all about procedural defects. But counsel submitted that the appeal was conducted as a de novo appeal as required by s 256 of the CPA. Counsel pointed to the facts that: the plaintiff was able to call fresh evidence and did so; he maintained his plea of not guilty, but he could have pleaded guilty if he wished to do so; and, as the Judge did not have access to the Magistrate’s reasons, all evidence was considered afresh.

Additionally, the defendant argued that the procedure adopted in the County Court appeal gave the plaintiff significant forensic advantages. He knew the fixed body of evidence and his evidence was not subject to further cross-examination. The plaintiff knew the possible consequences of the case; he had been convicted and sentenced to imprisonment, but he still agreed to have the evidence tendered in the form of recordings and a transcript. Modern authority cautions as to the weight to be given to the demeanour of witnesses.[70] In addition, the plaintiff had other evidence available to attempt to attack the complainants’ credibility, especially in relation to the first complainant.
[70]M v The Queen (1994) 181 CLR 487.

The defendant referred to the High Court’s decision in Butera in which Mason CJ, Brennan and Deane JJ said of the significance of oral evidence in criminal proceedings:

The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses.[71]
…
The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable.[72]

[71]Butera 189 (Mason CJ, Brennan, Deane JJ).

[72]Ibid 190.

The defendant argued that Butera established that the giving of oral evidence by witnesses in a criminal proceeding was not an immutable requirement. Therefore, the tendering of audio recordings and transcripts was not a jurisdictional error.

The defendant also relied on the judgment of Martin J in Thompkins v South Australia Health Commission,[73] in which he identified three types of appeals, the third being an appeal de novo ‘… in which the appeal court hears the matter afresh’.[74] His Honour said of an appeal de novo:[75]

The appeal is conducted as an original cause and all the evidence is given afresh unless the parties agree to the material that was before the [original body] being used on the appeal, and in that event additional evidence may be called. The judge who hears such an appeal will determine the question for himself upon the material before him, and he will not be limited in any way by the decisions that have been made by the [original body].

[73]Thompkins v South Australian Health Commission [2001] SASC 147 (‘Thompkins’) relying on Wigg v Architects Board of South Australia (1984) 36 SASR 111 (Cox J) (‘Wigg’).

[74]Thompkins [30] (Martin J).

[75]Wigg 113 (Cox J).

The defendant argued that Martin J’s reference to ‘the material that was before the original body’ indicated that the procedure adopted in this appeal was consistent with an appeal de novo and complied with ss 254 and 256 of the CPA.

Analysis of Ground 3 – The procedure adopted in the appeal hearing

A central point in this proceeding is whether the Judge, in receiving much of the evidence in the form of audio recordings and transcripts, failed to conduct a de novo rehearing as required by s 256 of the CPA. Although this may be regarded as a procedural defect, it is of great significance to the rights of those involved in appeals. As previously mentioned, issues of fact and credit were identified as matters requiring determination at the de novo rehearing.

A case of relevance to this issue is the judgment of the New South Wales Court of Criminal Appeal in Barendse v Comptroller-General of Customs.[76]
[76]Barendse.

In Barendse, the appellant was charged with smuggling and other offences against the Customs Act 1901 (Cth). The charges were heard and dismissed by a Magistrate in the Local Court. The Comptroller-General of Customs appealed to the District Court where the appeals were to be conducted as a hearing de novo. The appeals were conducted by way of a ‘paper appeal’ and no fresh evidence, oral or otherwise, was adduced. The transcript and the exhibits from the proceedings in the Local Court were tendered. The legislation permitted the use on the appeal of the depositions taken before the Magistrate if the parties consented.[77] The District Court found that each of the offences had been proved beyond reasonable doubt and rejected the sworn evidence testimony of Mr Barendse upon the depositions. At his request, the Judge stated a case for the Court of Criminal Appeal. The first question of the stated case was:

1. Was it an error of law for [the trial judge] to:
(a)Make findings of consciousness of guilt and sham transaction by rejecting the sworn testimony of Mr Barendse upon the depositions?
(b)Make such a finding adverse to Mr Barendse upon the written depositions and upon the evidence in the appeal by the informant against acquittal at first instance?

[77]Justices Act 1902 (NSW) s 126.

The Court, Beazley JA, Grove and Ireland JJ, stated that the nature of the appeal could not be altered by a direction of the trial judge or an agreement or understanding between the parties.[78] As the Court explained:[79]

The question is not whether the nature of the appeal changes but whether, if s 126 is utilised (or there is an agreement of the parties to like effect), the judge hearing the appeal is constrained in the findings which can be made. That question admits of an easy answer, where, for example, the parties expressly agree to certain facts or limit the issues argued on appeal. If that happened, the judge hearing the s 122 appeal would be entitled (although not bound) to accept that as an appropriate procedure for the disposal of the appeal. If that procedure was adopted, the trial judge’s fact finding would be constrained by the agreed facts and no question of credit would be involved in respect of those facts. Likewise, if the parties had limited the appeal to a specified issue or issues, the orders made would depend upon and flow from the determination of that issue or issues. That did not happen here. All that happened is that, apparently by consent and presumably pursuant to s 126, the matter proceeded on the basis of a tender of the transcript of evidence and the documents tendered in the original hearing without either party expressly directing attention to the issue of the appellant’s credit.

[78]Barendse 250.

[79]Ibid.

The Court stated that the question remained whether the District Court judge erred in law in making findings of consciousness of guilt and a sham transaction by rejecting the appellant’s evidence on the depositions. It referred to cases that emphasised the advantage of a trial judge in hearing and observing a witness and to ‘… the subtle effect which a witness’ demeanour may have on the determination of a witness’ credit’.[80]
[80]Ibid 251 (citations omitted).

The Court stated:[81]

In the present case, the trial judge's task was to determine the matter afresh, that is as a hearing de novo. He was required to make findings of fact and to determine whether the appellant was guilty of the offences with which he was charged. It is apparent, both from the guilty verdicts and the questions in the stated case that his Honour approached both those aspects of his task by assessing the appellant's credibility. He did so without the benefit of hearing the appellant give evidence. Clearly, his Honour took the view that the appellant's explanation was so improbable that it was a lie. The question arises whether that assessment could be made without the benefit of hearing and seeing the appellant in the witness box.

[81]Ibid 252.

The Court referred to the High Court decision in McCormack v Commissioner of Taxation (Cth)[82] where an assessment of the taxpayer’s credit was integral to the overall assessment of her evidence and where the High Court held that the Supreme Court was wrong in proceeding to reach a conclusion about a taxpayer’s credibility without the benefit of hearing the witnesses. Barwick CJ concluded that the Supreme Court ‘… ought to have insisted on hearing the evidence itself and thus placed itself in a position to evaluate the witnesses’.[83] Gibbs J, with whom Stephen J agreed and Jacobs J were of the same view.
[82](1979) 143 CLR 284.
[83]Ibid 294 (Barwick CJ).

The Court concluded that the District Court erred in making findings of consciousness of guilt and a sham transaction by rejecting the sworn testimony of the appellant, based upon the depositions. The Court stated:[84]

It is apparent from the stated case that the assessment of the appellant's credit was essential to Nash DCJ's determination that the appellant was guilty of the charges against him. However, the parties had consented to the matter proceeding on the depositions. In our opinion that involved one of two consequences. Either the matter was required to be determined on the basis that there was no credit issue or Nash DCJ was bound by the findings of credit of the magistrate. However, as the decision of the magistrate was not before Nash DCJ and therefore the magistrate's findings as to credit were not known, he was required to proceed on the former basis. This is so, even though the parties apparently assented to that course: see McCormack and Ainsworth Nominees Pty Ltd. Whilst our preferred view is as stated, it may be that had Nash DCJ informed the parties that there was a possibility that he would make adverse findings as to credit, so as to enable the parties to determine whether oral evidence should be called and also to make appropriate submissions to the court in respect of the credit issue the Court may not have interfered: see Stead. However, his Honour's failure to take any of these courses, means that the appellant did not get the fair trial to which he was entitled and was thus denied natural justice.

[84]Barendse 256.

In the present case, the Judge did not have the reasons of the Magistrate when deciding the appeal and he did not receive fresh oral evidence save from the three character witnesses. He had to determine the credibility of the complainants’ and the plaintiff’s evidence. If it was ever appropriate to decide an appeal de novo without hearing the oral evidence of key witnesses whose credibility was in issue, this was not that case.

The plaintiff did not rely on natural justice grounds, but rather on the ground that in the circumstances of this case, an appeal requiring a rehearing de novo could not be conducted without seeing and hearing from, directly or by video recording, the key witnesses, at least those whose credibility was in issue.

The High Court decision in Butera makes clear that the agreement of the parties to tender transcripts as evidence does not prevent the trial judge from refusing to exercise his or her discretion.[85] Mason CJ, Brennan and Deane JJ stated that:[86]

The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable. If a witness writes out a proof of his evidence and swears to its truth or if a written transcript of part of the witness' oral evidence is produced, and if the task of the jury can be facilitated by admitting the document in evidence, there is no absolute bar against doing so. For example, a written document may prove more convenient than oral evidence as a foundation for cross-examination upon its contents or it may be a valuable aide-mémoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room. A further relevant consideration is the risk that documentary evidence may impair public understanding of the proceedings.
In the circumstances of the case it may well have been preferable for the written transcript of the cross-examination of the interpreters also to have been made available to the jury, in the course of their deliberations, to supplement and modify the written translations, which, in effect, represented their evidence in chief. No request was made of the learned trail judge to follow that course however and, having regard to the absence of any such request and to the other circumstances of the case, it cannot be said that the trial judge's exercise of his “inclusory” discretion miscarried for that reason. Nor did his Honour's exercise of that discretion occasion any miscarriage of justice. (citations omitted)

[85]Buterav DPP 190 (Mason CJ, Brennan and Deane JJ).

[86]Ibid 190-1.

The High Court has identified clear benefits a judge has in the assessment of viva voce evidence. In Fox v Percy,[87] the plurality observed that the limitations of appellate courts:[88]

include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

[87]Fox v Percy (2003) 214 CLR 118.

[88]Ibid 126, [23] (Gleeson CJ, Gummow, Kirby JJ).

I am not satisfied that the Judge was able to properly make an assessment as to the credibility of the key witnesses on the evidence provided to him. Given credibility was a crucial issue it was inappropriate to receive much of that evidence by audio recording and transcript.

This case differs from Butera, where the transcripts consisted of the English translation of a recording of an out of court conversation between several co-accused which occurred in a foreign language. In Butera, the conversation in question did not touch on the issue of credibility. In this case, credit is in issue, and the benefits of observing the relevant witnesses has both a role to play in issues of fact and issues of credit. The benefits of receiving the transcript did not outweigh the detriments as was the case in Butera.

Whether in any given case, it is an appropriate exercise of the Judge’s discretion to admit a transcript of evidence or recordings of evidence previously given, will depend on the issues in dispute, and relevant legislative provisions and the duty to conduct a fair hearing in which public confidence will exist. As the Judge said during discussions about the procedures to be adopted, the playing of all of the evidence relied on is ’the only assurance that everyone has that I’ve actually heard the evidence’.[89] His Honour also accepted ‘that there is certainly more character in hearing and seeing a witness than there is in reading it on transcript.’[90]
[89]CB 393.
[90]CB 390.

The time pressures faced by the Judge may have led him to receive the evidence by way of transcript with the aim of expediting the hearing and thereby assisting the parties and efficient dispatch of Court business. However, as the High Court has previously warned, the practice of witnesses giving their evidence orally ‘… should not be waived lightly’.[91] With great respect, the Judge’s decision to admit the audio evidence and transcript as the balance of the prosecution evidence in the circumstances of this case meant that the proceeding ceased to be conducted as a de novo rehearing appeal as required by s 356 of the CPA. Such an appeal where questions of witness credibility are in issue and the accused has chosen to give evidence, in almost all cases must be conducted by those witnesses giving oral evidence or by video recordings of their evidence being played when that is permitted by legislation.
[91]Butera 190.

At this rehearing, the plaintiff was liable to be sentenced to a term of imprisonment. The Judge had to use the best evidence available to decide if the plaintiff was guilty of the offences and also to conduct the appeal in a manner that demonstrated that justice has been done. As Heydon J stated in Stubley v Western Australia:[92]

This is part of [a judge’s] duty as 'an administrator of justice' who 'has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done’

[92](2011) 242 CLR 374, 401 [93] (Heydon J) quoting L H Hoffmann, The South African Law of Evidence (Durban Butterworths, 2^nd ed, 1970) 302 (citations omitted).

For these reasons, I consider that the conduct of the appeal de novo substantially on audio recordings and the transcript of witnesses’ evidence led to an error of law on the face of the record and a jurisdictional error in the exercise of the jurisdiction to hear and determine an appeal de novo conferred by ss 254 and 256 of the CPA.

Charter right to a fair and public hearing

Section 24 of the Victorian Charter of Human Rights and Responsibilities Act 2006 gave Mr Grabski the right to have his appeal proceeding decided by a competent, independent and impartial court after a fair and public hearing. No submissions were made about this right or whether it could be modified by agreement.[93] The conclusions that I have reached raise, at the least, considerable doubt whether the appeal was a ‘fair and public hearing’ as envisaged by s 24.
[93]As mentioned the appeal was heard in a closed court.

Outcome of proceeding

Grounds 2(a) and 3 are established. The other grounds are not:

(a) An order in the nature of certiorari is issued setting aside the orders of the County Court made on Monday, 11 February 2019 in County Court of Victoria proceeding AP-18-1847.

(b) An order in the nature of mandamus is issued to the County Court of Victoria for the rehearing and determination of County Court proceeding AP-18-1847 by a different Judge.

(c) I will hear parties as to any other orders that maybe required.

[2020] VSC 156

3 April 2020