H G a v the Queen
[2010] VSCA 114
•14 May 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 933 of 2008
| HGA |
| v |
| THE QUEEN |
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JUDGES: | WEINBERG, MANDIE and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 April 2010 | |
DATE OF JUDGMENT: | 14 May 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 114 | |
JUDGMENT APPEALED FROM: | The Queen v HGA (Unreported, County Court, Judge Wood; applicant convicted 3 September 2008; applicant sentenced 21 November 2008) | |
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CRIMINAL LAW – Applicant convicted on seven counts of wilfully committing an indecent act with a child under age of 16 – Whether trial miscarried due to admission of evidence of uncharged acts – Whether adequate directions to jury regarding evidence of uncharged acts – Whether directions to jury regarding failure of Crown to call complainant's sister as a witness were adequate – Whether jury properly directed regarding the use to be made of evidence concerning the complainant's motives to lie – Whether judge erred in commenting on the applicant's video-taped interview with police and whether these comments could be interpreted as comments regarding the applicant's failure to give evidence at his trial – Whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G F Meredith | Victoria Legal Aid |
| For the Crown | Mr J D McArdle SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree for the reasons given by Mandie JA that leave to appeal should be refused.
MANDIE JA:
The applicant was convicted, on 3 September 2008, in the County Court at Bendigo, on seven counts of wilfully committing an indecent act with or in the presence of P, a child under the age of 16 to whom he was not married, contrary to s 47 (1) of the Crimes Act 1958. P was a stepdaughter of the applicant, born in March 1991. The applicant had been charged with eight counts but the jury was unable to agree on count 1 which involved an allegation of an act committed on or about 20 April 2000. The jury returned verdicts of guilty on the other counts which involved acts committed at a number of places in Victoria on or about 20 May 2000 (counts 2 and 3), 26 March 2003 (counts 4, 5 and 6) and between 26 March 2003 and 28 April 2003 (counts 7 and 8).
On 21 November 2008 the applicant was sentenced to a term of nine months’ imprisonment on count 2, nine months’ imprisonment on count 3, 15 months’ imprisonment on count 4, 21 months’ imprisonment on count 5, 21 months’ imprisonment on count 6, 18 months’ imprisonment on count 7 and three years’ imprisonment on count 8. The trial judge ordered that three months of the sentence on count 2, six months of the sentence on count 5 and nine months of the sentence on count 6 should be cumulative upon each other and upon count 8. The total effective sentence therefore was four years and six months’ imprisonment. His Honour fixed a non-parole period of two years and nine months.
Circumstances of offences
The first incident allegedly took place in 2000 in the lounge room of the family home, during Easter. P was aged 9. P was sitting on the couch when HGA grabbed her on the breast over her clothes (count 1). On this count, the jury were unable to
agree and were discharged without verdict.
A second incident happened approximately one month later, in May 2000, at that home again. On this occasion, P was in her bedroom alone when HGA entered and, over the top of her clothes, grabbed her breasts (count 2) and rubbed her vagina (count 3).
A third incident happened in March 2003 when the family was living in a flat in rural Victoria. P was 12 years old, and it was her first term at secondary school. On this occasion P’s mother had been taken to hospital. P returned home from school and was getting changed in the bathroom when HGA entered the bathroom and rubbed her bare breasts with both hands (count 4). He then, inside her underwear, rubbed her vagina (count 5). P told him to stop it but he did not. He only stopped when one of the other children commenced to enter the bathroom. On another occasion at the same flat, HGA chased P into her bedroom, undressed her pushed her onto the bed and rubbed her vagina (count 6).
Another incident occurred in March to April 2003 in another home rented by the family. P had returned home from an outing. When she got home, HGA was angry and confronted her in her bedroom, locking the door. He made her take off her bra and started rubbing both of her breasts with his hands (count 7). He then removed her jeans and underwear and licked her vagina (count 8).
Grounds of appeal
The applicant now seeks leave to appeal against conviction on the following grounds:
1.The verdicts on each of the counts on which the applicant was found guilty are unreasonable and not supported by the evidence.
(a)The evidence supporting counts 2-8 was not corroborated by other evidence.
(b)The conduct covered by counts 2-8 was not the subject of recent complaint.
(c)The evidence supporting counts 2-8 was contradicted by other evidence.
(d)The failure of the jury to reach a verdict on count 1, while convicting on the remaining counts, is not logically explicable, given that all counts relied entirely on the jury’s acceptance of the complainant’s evidence.
2.The trial miscarried by the admission into evidence of uncharged acts in Queensland and Western Australia.
(a)The admission into evidence of the uncharged acts in Queensland controverted verdicts of acquittal of the applicant in the District Court of Queensland sitting at Gympie of one count of attempted rape and four counts of rape.
(b)The evidence of the uncharged acts was that they had occurred after the allegations the subject of this trial, and so had no probative value. The admission of this evidence was therefore contrary to s 398A(2) of the Crimes Act 1958.
(c)The evidence of the uncharged acts was so vague as to have no probative value, and its admission was therefore contrary to s 398A(2) of the Crimes Act 1958.
3.The learned trial judge misdirected the jury about the failure of the Crown to call the complainant’s sister to corroborate the complainant’s evidence about counts 4 and 5, in that the learned trial judge failed to direct the jury that it could infer from such failure that the evidence would not have assisted the Crown case.
4.(abandoned)
5.The learned trial judge failed to give any, or any adequate, direction to the jury on the use that could be made of the uncharged sexual acts in Queensland and Western Australia, in that he failed to direct that these acts had to be proved beyond reasonable doubt, as required by R v Sadler [2008] VSCA 198.
6.(abandoned)
7.The trial miscarried due to an aggregation of the above errors.
8.The learned trial judge erred in failing to direct the jury adequately or at all concerning the manner in which the jury ought scrutinise and apply the evidence concerning a potential motive of the complainant to have manufactured or lied concerning her allegations against the applicant.
9.The learned trial judge erred in commenting on the failure of the accused to give sworn evidence in his trial.
10.The admission into evidence of uncharged acts occasioned a miscarriage of justice as the evidence was vague, imprecise and lacking in particularity.
11.The learned trial judge failed to direct the jury adequately as to the use of uncharged acts.
It is convenient to deal with the grounds of appeal in the order in which they were argued on behalf of the applicant.
Grounds 2, 5, 10 and 11
These were the primary grounds relied upon by the applicant and they all related to certain evidence of uncharged acts. The background to these grounds is as follows.
After the occurrence of the alleged offences in Victoria, the family group constituted by the applicant, his wife and their children, including P (who was the daughter of the applicant’s wife by a previous relationship), spent some time in Queensland (in 2003, 2004 and 2006) and also in Western Australia. P first made a statement to the police in or about June 2006.
The Crown provided a summary of prosecution opening to the defence pursuant to s 6 of the Crimes (Criminal Trials) Act 1999 in which it was stated:
The family later moved to various towns in Victoria and interstate. At some of these locations similar incidents took place between the accused and the complainant. These are uncharged in Victoria.
After giving her evidence concerning the alleged offences, the following evidence concerning uncharged acts was then given by P in examination-in-chief at the trial:
QLook, obviously you understand this is a Victorian court. Without going into any detail were there any further incidents of a similar nature when you lived with the accused man in WA and Queensland?
AYes.
Before final addresses to the jury, the following exchange took place between the judge and the prosecutor:
His Honour: There’s a couple of things I want to raise with you. First of all Mr …, the evidence about the uncharged acts, I mean, it’s in. It wasn’t objected to. How are you going to put that? What’s it go to? Relationship only?
Prosecutor:Exactly, and just to put it into complete context. I mean, otherwise they wonder, ‘well, what happened when you did WA or Queensland?’ I opened it that way. It was in the formal Crown opening I don’t think there was any objection to it then.
His Honour: No, there wasn’t.
Prosecutor:And I’ll just begin, touch on it, just to put things in context. No more. I’m not going to dwell on them at all in my final address.
His Honour: Pardon me? You’re not going to dwell?
Prosecutor:On those uncharged acts in any length at all in my final address. I’ll just touch on it, say, ‘they’re purely to put things in a complete context. A full and realistic context.’
His Honour: Yes, in terms of the relationship?
Prosecutor: That’s right.
The experienced counsel who appeared for the applicant at the trial had not objected to the evidence of uncharged acts going in in the form in which it did and made no comment in relation to the above exchange between the judge and the prosecutor. Indeed, the probable inference is, having regard to the form of the question and answer concerning the uncharged acts, and the lack of objection thereto, that the admission of the evidence in this form must have been the subject of discussion between the prosecutor and defence counsel and that the admission of the evidence in that form had been agreed to, or at least acquiesced in, by defence counsel in that discussion. Be that as it may, there was no objection by defence counsel to the admission of the evidence.
During a break in the judge’s charge, a discussion took place between the judge and counsel concerning the way in which the judge would direct the jury in relation to the uncharged acts. The judge outlined in substance what he subsequently said to the jury on this topic (see below). The only matter raised by defence counsel at that stage was the question whether the uncharged acts had to be proved beyond reasonable doubt. Defence counsel said that they had to be proved beyond reasonable doubt. The judge said that he was not sure if that was the case, to which defence counsel replied that he was not sure about that either and that he would think about it overnight. The prosecutor said that the question was not settled in Victoria and it seemed to be a grey area. This particular matter was not raised again.
On the day after the above discussion, the judge charged the jury in relation to the uncharged acts as follows:
In this case, albeit very briefly, but quite properly, … the learned prosecutor asked of [P], ‘[the relevant question and answer was then quoted by his Honour]’.
That evidence does not relate directly to the eight charges brought against the accused which you are considering. Ordinarily you would not hear such evidence for that very reason, but it is given here because if you accept it as truthful, it provides you with background information that may assist you when assessing and evaluating other evidence, because it places the evidence of [P] whereby she alleges that there were eight counts of abuse against her by the accused in a proper and full context.
That is to say that their relationship was an ongoing one. If you find that these acts were done in WA and Queensland, that is to say if you accept [P’s] account as truthful, that may help you assess what [P’s] state of mind was.
For example, her failure to make complaint about the conduct relative to the time these things are said to have happened. She said she had seen the accused man act violently towards his wife, [P’s] mother. That she said she had nowhere else to go and that her mother would not believe her anyway then or she thought even now.
This evidence though before you is for your assessment. It is all for your assessment of whether you accept that body of evidence wholly or in part as factual. The only purpose for which you consider these alleged sexual acts in WA or Queensland is to enable you to assess [P’s] evidence, particularly those parts of it that concern counts 1 through to count 8 in the context of her relationship with the accused man. Why did she not report the assaults she alleged were perpetrated upon her by [HGA] to her mother, friends, family and teachers?
You cannot – and I repeat as a matter of law – you cannot use that evidence to the effect I am satisfied that those acts took place in WA and Queensland and therefore the acts she contends happened in [Victoria] must have happened too or conclude that he is the kind of person who would have committed any of those eight counts.
Further I reiterate my earlier warning. Each charge must be considered by you separately. You must not reason because I find the accused guilty or not guilty of count 1 for example, he must be guilty or not guilty on count 2 or 3 as the case may be.
Mr Foreman and members of the jury, that is a direction of law. Clearly as a matter of logic and more importantly law, I direct you that you may not and must not if you find those acts proven, reason that the accused is the sort of person who would commit any of those counts on the presentment.
Importantly you must not substitute evidence of the alleged acts in WA or Queensland in support of the counts before you. You must be satisfied beyond reasonable doubt of the counts before you, based upon the evidence that relates to those counts.
Defence counsel took no exception to the above portions of the judge’s charge and, thus, grounds 2, 10 and 11 are raised the first time on appeal. Ground 5, that the judge failed to direct that the uncharged acts had to be proved beyond reasonable doubt, was likewise not the subject of an exception although it was the subject of some discussion, as indicated above.
On appeal, counsel for the applicant (who had not appeared on behalf of the applicant at trial) said that the uncharged acts in Queensland referred to in the evidence at trial had been the subject of a trial in the District Court of Queensland at Gympie in September 2007 and that the applicant had been acquitted of all charges. Counsel sought to tender to this Court a folder of material including a copy of the indictment showing that there was one charge of attempted rape of P on a date unknown between October 2003 and July 2004, one charge of rape in July 2004, and three further charges of rape on dates unknown between 1 February 2006 and 1 March 2006, all at locations in Queensland, and a certificate showing that the applicant was found not guilty of all charges.[1] The folder also contained a copy statement of P dated 20 June 2006 and extracts from the trial transcript.
[1]The copy certificate had a mistake in the date and did not explicitly refer to a jury verdict but it did not appear to be in dispute that the applicant had been acquitted by verdict of a jury in Queensland on 20 September 2007.
The applicant submitted that the introduction of evidence concerning the alleged conduct in Queensland controverted the applicant’s acquittal in Queensland, alternatively, there was no proper direction to the jury concerning the Queensland acquittal (ground 2(a)). It emerged in discussion between counsel for the parties and the Court that the prosecutor had been unaware of the trial or the acquittal in Queensland and that it seemed to be inescapable, however odd, that defence counsel was likewise unaware of these events. The question was also raised as to whether the matters the subject of acquittal were the same matters as were referred to as having taken place in Queensland. The applicant submitted that the prosecutor must have based his question on material contained in the depositions. However, it would seem clear enough that P’s answer could not be said with any assurance to relate to the allegations the subject of the acquittals and may have related to other alleged incidents in Queensland.
The applicant submitted that the jury would have interpreted the judge’s directions as informing them that they could use the evidence of the uncharged acts as indicative of the existence of a strong sexual interest by the appellant in P, thereby increasing the probability that he had offended in the manner and on the occasions alleged in the counts before them (ground 5).
The applicant submitted that the admission into evidence of the uncharged acts, notwithstanding the failure to object thereto, occasioned a miscarriage of justice as the evidence of the alleged acts in Queensland and also in Western Australia was vague, imprecise and lacking in particularity (ground 10).
Finally, the applicant submitted that the judge had failed to direct the jury adequately as to the use to which they might put the evidence of the uncharged acts, essentially by failing to distinguish between its use to explain P’s delay in making complaint and its use to establish a guilty passion (ground 11). It was submitted that the reference by the judge to an ‘ongoing relationship’ was likely to have misled the jury into thinking that they might use the evidence to confirm the applicant’s sexual interest in P and, further and as a result, the jury should have been directed that they had to be satisfied of the evidence as to uncharged acts beyond reasonable doubt (ground 5).[2]
[2]See R v Sadler (2008) 20 VR 69.
As regards ground 2(a), I am not satisfied that the introduction of the evidence concerning the alleged conduct in Queensland controverted the applicant’s acquittal in Queensland, because there was and is nothing to show that the alleged events that P had in mind when answering the relevant question were the events the subject of the acquittal. Even if that were not so, there was in my view no material error on that account because the evidence went also to ‘incidents of a similar nature’ in Western Australia (unless of course evidence as to similar incidents in Western Australia was also inadmissible).
Grounds 2(b) and (c) are to the effect that the admission of the evidence of uncharged acts was contrary to s 398A(2) of the Crimes Act 1958 (as it then stood) but that provision relates to ‘propensity evidence’ and it is clear that the evidence was not led as propensity evidence. It was led as going to ‘relationship only’ and as ‘context’. The judge directed the jury that it was ‘background information’ that might assist them in assessing and evaluating other evidence and as putting the matter ‘in a proper and full context’. The judge said that it went to show that ‘their relationship was an ongoing one’ and might help them ‘assess what [P’s] state of mind was’. The judge explained that it related, for example, to P’s failure to make complaint.[3] Further, the judge made clear that it was not to be used as propensity evidence when he told the jury that they could not reason that, because those acts took place in Western Australia and Queensland, the alleged acts must have happened in Victoria or that the accused was ‘the kind of person who would have committed’ those acts in Victoria. The judge repeated that direction by saying to the jury that they ‘may not and must not … reason that the accused is the sort of person who would commit any of those counts’ and ‘[i]mportantly you must not substitute evidence of the alleged acts in WA or Queensland in support of the counts before you.’
[3]See [17] above.
Putting aside the form in which the evidence was couched, evidence as to uncharged acts in Western Australia and Queensland alleged to have happened after the allegations the subject of the trial was in the circumstances admissible as so-called ‘context evidence’ to explain P’s failure to complain of the accused’s conduct while she continued to reside with him and the family.
The grounds of appeal based on s 398A(2) of the Crimes Act should therefore be rejected. Putting that provision to one side, the complaint in these grounds that ‘after the event’ evidence of this kind had no probative value is not made out. The complaint that the evidence was so vague as to have no probative value is no doubt correct in abstract but it went in without objection and, it might be thought, in a form least harmful to the applicant.
As regards ground 5, as the evidence of uncharged acts was not led to show the existence of an illicit passion or sexual interest of the accused towards P, it was not necessary for the judge to direct the jury that the uncharged acts had to be proved beyond a reasonable doubt.[4] In any event, as I have said, no exception was taken by defence counsel to the judge’s charge in this (or any other) regard.
[4]See R v Sadler (2008) 20 VR 69, [62]-[63].
As regards ground 10, it is true that the evidence of uncharged acts was ‘vague, imprecise and lacking in particularity’ but, as already stated, no objection was taken and the evidence was probably in a form least harmful to the applicant.
As regards ground 11, I consider that the judge adequately directed the jury as to the use of the evidence of uncharged acts. Although some of the expressions in the judge’s charge might give rise to concern if taken out of their context, I think that in the relevant passages,[5] taken as a whole, the judge sufficiently made clear to the jury what paths of reasoning based on the evidence of uncharged acts were impermissible and the limited way in which they could use this evidence. There was no miscarriage of justice and, again, I repeat that no exception was taken. Indeed, it is fair to say, that counsel for the applicant on the appeal was reluctant to rely upon this ground and only sought leave to introduce it by way of amendment to the grounds of appeal after considerable discussion with the bench as to the possible inadequacies of the applicant’s other grounds on this topic.
[5]See [17] above.
For the foregoing reasons, I would reject grounds 2, 5, 10 and 11.
Ground 3
This ground relates to the incident in the bathroom (counts 4 and 5) in respect of which it was said that the accused only stopped when one of the other children commenced to enter the bathroom. The matter arose in the cross-examination of P as follows:
Q There were how many other people at home at that time?
A I think all my brothers and sisters were.
Q Pardon?
A I think my brothers and sisters were.
Q Were at home?
A Yes.
Q And they could have walked into the bathroom, couldn’t they?
A One of them was walking into the bathroom.
Q Didn’t see anything apparently?
A No, he pulled away.
[P then gave evidence of what the accused did]
Q I see, so when your sister walked into the room you had nothing on?
A No I didn’t have anything on the top half.
Q So your sister could confirm that?
A Yes probably.
QThat when she, at some stage in 2003, and it would ring true in her mind that it was a time when your mother was taken to hospital by ambulance that she walked into the bathroom and you and [HGA] were in there, correct?
AYes.
QShe could confirm that?
AYes.
QAnd she could confirm that you were naked from the waist up?
AYes.
QAlright, I don’t know if [we’ll] hear from her or not. … [The questioning moved on to other topics]
It is to be noticed that defence counsel introduced the idea that it was P’s ‘sister’ rather than just ‘one of them’ (ie the brothers and sisters) and that P only said that her sister could ‘probably’ confirm ‘that’.
In his charge, the judge referred to the fact that defence counsel in his address had said that this was a case in which there was no corroboration and that there was no one who was called to say ‘well I saw the two of them in the bathroom together at that particular time …’. The judge later directed the jury as follows:
You will recall when [P] was questioned about the episode that happened in the bathroom when she was naked from the top up and she said her sister came into the room and [defence counsel] said well, your sister could confirm that. You will remember that suggestion being put and then [defence counsel] said ‘I don’t know if we’re going to hear from her or not’. Well we have not heard from her. She is not called.
I must give you this direction of law in these forceful terms. She is not called. You cannot speculate on what she would have said had she been called. You cannot draw any inference from it whatsoever. She may not have been called for a whole host of reasons, which I need not go into, because that would be speculation.
So the evidence just does not take that any further. You have got the evidence of [P] where she says her sister came into the bathroom at a time when she … had her top off and the accused man was in there. That is the end of it.
So do not fill up gaps in your mind about that. The simple fact is that you have got nothing from the sister as to whether that is right or wrong or anything else. Do not speculate. Eradicate it. Act on the evidence that you have got.
Defence counsel took no exception to the above direction.
The applicant submitted that, the Crown having been put on notice that the failure to call P’s sister might be the subject of criticism and having failed to lead evidence explaining the failure to call her, the judge ‘eradicated’ any issue arising from the failure to call the sister which might have been favourable to the applicant. The applicant submitted that the judge should have directed the jury that the failure of the Crown to call the witness was capable of raising an issue for the jury affecting the truthfulness and reliability of P’s evidence and going to whether the jury might entertain a reasonable doubt about the guilt of the accused.
The respondent submitted, in answer, that there was no basis for viewing the prosecution’s failure to call the sister as an acknowledgment that the evidence would not have advanced the prosecution’s case. The respondent submitted that, given the uncertainty as to the identity and age of the witness (ie the ‘sister’) and as to the evidence that the witness could give, no direction in accordance with R v GEC[6] was necessary.
[6](2001) 3 VR 334.
In R v GEC, Vincent JA (with whom Charles and Batt JJA agreed) discussed the applicability of the Jones v Dunkel[7] principle in criminal proceedings and, in the particular circumstances of that case, considered that the judge should have instructed the jury that they were entitled to draw an inference that certain evidence was not available to the prosecution having regard to the failure of the prosecution to adduce that evidence. His Honour emphasised that the circumstances were that ‘it was arguably reasonable to anticipate that [the evidence] would have been forthcoming if [the complainant’s] version was correct’ and this could have been regarded by the jury as significant.
[7](1959) 101 CLR 298.
In Dyers v The Queen,[8] the High Court[9] held that as a general rule a Jones v Dunkel direction should not be given in a criminal trial in relation to a failure to call evidence by the accused.[10] However, Gaudron and Hayne JJ went on to add, obiter, that:[11]
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[8](2002) 210 CLR 285 (‘Dyers’).
[9]Gaudron, Kirby, Hayne and Callinan JJ (McHugh J contra).
[10](2002) 210 CLR 285, 291 (Gaudron and Hayne JJ).
[11](2002) 210 CLR 285, 291.
In the same case, Callinan J referred with approval to what was said in the joint judgment in RPS v The Queen[12] which included a statement that, ‘if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.’ This passage was also referred to with approval in Mahmood v The State of Western Australia.[13]
[12](2000) 199 CLR 620, 632-633, [27]-[29] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ).
[13](2008) 232 CLR 397, 406, [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ).
In my opinion, this was not a case in which it was arguably reasonable to anticipate that the evidence of the ‘sister’ would have been forthcoming if P’s evidence concerning this incident was correct. There was uncertainty both as to the identity and age of the witness and as to the evidence that she (or he) might have been able to give. There was an insufficient basis for any conclusion that the ‘sister’ was a person who the prosecution might be expected to call. The direction given by the judge was therefore appropriate and within the general rule stated by Gaudron and Hayne JJ in Dyers. The failure of experienced defence counsel to take exception to the judge’s directions on this question reinforces that conclusion.
Ground 8
The applicant said that P’s motivation to lie in respect of her allegations against him had been the subject of cross-examination and address by defence counsel and submitted that the judge had failed to adequately direct the jury concerning the manner in which they ought scrutinise the evidence concerning P’s potential motives to lie. The respondent submitted that a number of bases for P’s dislike of the applicant had been admitted by her in cross-examination and hence her potential motive to lie had been demonstrated and this was recognised in the judge’s directions – but of course P had also maintained that she was nevertheless telling the truth and the jury had been properly directed that they had to assess all the evidence and be satisfied as to the truthfulness of her account beyond a reasonable doubt.
In my opinion, the applicant has failed to show that the judge’s directions were in error in this respect. Again, it is significant that defence counsel sought no redirection on this aspect.
Ground 9
This ground relates to the following part of the judge’s directions to the jury:
Now I say this and you have had observation made of it before, but you do have an advantage over most other jurors who hear cases in this state in that most – this is my experience – the first visual record of interview that I have seen conducted by police officers, because in Victoria they are done by sound only and I suppose you would think to yourselves well, you are better off with the witness in the witness box giving you evidence in this room so you can see how they are responding and what they are saying and their overall demeanour. I mentioned this yesterday.
You are in a position, with that interview, of seeing [HGA] being questioned and you will be able to see for example how quickly he responded to questions. [The judge here referred to the more usual audio-taped format of such an interview] So you will be able to form a view as to how spontaneous[ly] the allegations were responded to.
The applicant submitted that the judge’s comparison of the video-taped interview with sworn evidence could only have been taken by the jury as a reference to the ability of the applicant to have given sworn evidence in his trial, a course which he had not taken.
I do not accept that submission. In my view, the jury would not have taken the statement as relating to the ability of the applicant to have given sworn evidence. All that the judge was saying was that the video-taped interview of the applicant gave the jury an advantage in their assessment of this aspect of the evidence that was superior to an audio-taped interview. The statement was not a comment on the failure of the accused to give sworn evidence and was innocuous. Again, no exception was taken by defence counsel.
Ground 7
The contention that the trial miscarried due to an aggregation of errors fails as no errors have been established.
Ground 1
Counsel for the applicant did not seek to elaborate his written submissions on this ground. The written submissions opened with a general submission as follows:
It is submitted that on the whole of the evidence it was not open to the jury to be satisfied of the guilt of the applicant on counts [2-8]. Significant inconsistencies emerged in [P’s] version of events at trial when compared with what she had said at committal, and with the evidence given by other witnesses.
The written submissions then listed in relation to counts 4 to 8 what the applicant submitted were ‘significant inconsistencies’ in P’s version of events at trial when compared with what she had said at committal and with the evidence given by other witnesses.
In so far as the inconsistencies relate to P’s evidence, they principally relate to the surrounding circumstances, they are not particularly surprising in all the circumstances and they do not seem to me to be ‘significant’. They were very much matters for the jury to assess. In so far as there are inconsistencies with the evidence of other witnesses, these are few in number and principally arise in relation to the evidence of P’s mother and it was open to the jury to consider that P’s mother may have been ‘in denial’ in relation to the applicant’s alleged conduct.
Applying the principles stated in the oft-cited passage in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen,[14] and having read and
[14](1994) 181 CLR 487, 492-5.
considered the trial transcript, I consider that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on the counts in respect of which they found him guilty. The discrepancies and inadequacies relied upon by the applicant are not such as to lead me to conclude that it was not open to be satisfied of the applicant’s guilt beyond a reasonable doubt. Further, the evidence does not otherwise lack probative force in such a way as to lead me to conclude that there is a significant possibility that an innocent person has been convicted. It was clearly open to a reasonable jury to accept P as a witness of truth.
Conclusion
For the foregoing reasons, I would refuse leave to appeal.
BONGIORNO JA:
I agree with Mandie JA.
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