Hill v The Queen
[2021] VSCA 316
•18 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0183
| BEN HILL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and T FORREST JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 October 2021 |
| DATE OF JUDGMENT: | 18 November 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 316 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1193 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Conviction and sentence – Sexual penetration of a child under 16 – Indecent act with or in the presence of a child under 16 – Substantial miscarriage of justice – Whether conviction was unreasonable or cannot be supported having regard to the evidence – Whether inconsistencies and improbabilities in prosecution case individually or in combination made jury’s verdict unreasonable – Credibility of independent witness had no impact on credibility of complainant – Evidence ruled inadmissible in previous trial led in retrial – Leading of inadmissible evidence amounted to error or irregularity which may have made a difference to outcome of trial – Crimes Act 1958 ss 45(1), 47(1), Criminal Procedure Act 2009 s 276(1)(a)–(b); M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Baini v The Queen (2012) 246 CLR 469 applied – Unnecessary to consider application for leave to appeal against sentence – Leave to appeal against conviction granted – Appeal against conviction allowed – Retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Tehan QC, with Ms S Lenthall | Slades & Parsons Solicitors |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
T FORREST JA
MACAULAY AJA:
On 11 November 2019 a jury convicted the applicant of two charges of sexual penetration of a child under 16 and a charge of committing an indecent act with, or in the presence of, a child under 16.
On 6 August 2020 the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Sexual penetration of a child under 16[1] 25 years 8 years 3 years 2 Indecent act with or in the presence of a child under 16[2] 10 years 18 months 3 months 3 Sexual penetration of a child under 16 25 years 9 years Base Total effective sentence: 12 years and 3 months’ imprisonment Non-parole period: 9 years Other relevant orders: sentenced as a serious sexual offender on charge 3, Sex Offenders Registration reporting for life [1]Contrary to the Crimes Act 1958 s 45(1).
[2]Contrary to ibid s 47(1).
The applicant seeks leave to appeal against conviction and sentence. His grounds of appeal against conviction are:
1.The learned trial judge erred in failing to adjourn the trial because of the unfitness of the applicant to stand trial.
2.The learned trial judge erred in failing to have the swearing of the intermediary in the presence of the jury.
3.The learned trial judge erred in failing to give the jury a direction upon penetration.
4.The learned trial judge erred in failing to give the jury a forensic disadvantage direction.
5.The learned trial judge erred in failing to give an adequate direction upon the applicant’s alleged sexual interest in the complainant.
6.The learned trial judge erred in limiting cross-examination of the witness [PJ] on credit and motive.
7.The verdicts of the jury are unreasonable and cannot be supported having regard to the whole of the evidence.
8.By virtue of the contentions made under grounds 1 to 6 taken either individually or together, there has been a substantial miscarriage of justice.
At the oral hearing of the application for leave to appeal, the applicant was granted leave to add two more grounds of appeal:
9.The trial of the applicant miscarried because evidence which had been ruled inadmissible was led before the jury, namely that:
(i)The applicant had requested that [WM] provide him a ‘cute photo’ of the complainant;
(ii)The reason why [WM] would not allow the applicant to stay at the house was because he had sent text messages to her in the month of September 2017 demonstrating a sexual interest in the complainant.
10.The trial of the applicant miscarried because the jury had before them in their deliberations material which they should not have had, namely the evidence and ruling of Judge Marich upon the competence of the complainant to give sworn evidence.
Additionally, the applicant was granted leave to amend ground 8 so that it also referred to grounds 9 and 10.
Background
We shall provide a factual background to the offending. When considering certain grounds of appeal we may descend into more factual detail. What is set out below are the main allegations of the prosecution case.
The applicant was aged 30 at the time of the alleged offending. He met the complainant’s mother, ‘WM’,[3] online in April 2017, and in person shortly after that time. The two commenced a relationship which soon became sexual. In early May 2017 the applicant met WM’s children — the nine-year-old complainant, ‘WG’, and her younger brother, ‘R’.
[3]To prevent any risk of the identification of the complainant, the names of the complainant and her family members have been replaced with pseudonyms.
On 12 May 2017, the applicant visited the complainant’s home, either for the first or for the second time. He stayed the night and slept with WM in her bedroom. The complainant’s bedroom was adjacent to WM’s bedroom. During the night the applicant allegedly left WM’s bedroom, went to the complainant’s bedroom and got into her bed. The complainant stated that he then pulled her pants down and penetrated her anus with his penis (charge 1). At about this time he also touched the outside of her vagina with his fingers (charge 2). He allegedly told her not to tell anyone.
The complainant left her bed and went to the nearby laundry. She stated she commenced to cry. Her mother came to her and put her back to bed.
Later, during the same night, the applicant allegedly returned to the complainant’s bedroom. She stated that he again penetrated her anus with his penis (charge 3).
The relationship between the applicant and WM ended later in 2017. Some time after that, in December 2017, the complainant made allegations of sexual misconduct to her father, PJ. Shortly after that, she complained in more detail to her mother and father. The complainant attended with her parents upon police and a VARE was conducted on 13 December 2017.
The applicant was arrested and interviewed on 17 January 2018. He denied all allegations put to him.
Procedural background
The applicant was initially presented for trial before Judge M Bourke in the Geelong County Court in early April 2019. After jury questions concerning the meaning of ‘beyond reasonable doubt’ and the burden of proof, the judge gave the jury a majority verdict direction and a perseverance direction. The jury failed to agree and were discharged without verdict.
The applicant was retried at Geelong County Court before Judge Mullaly in November 2019. A good deal of the evidence at that trial was presented in audio-visual form, comprising the VARE tape, the cross-examination of the complainant at a special hearing, and a recording of WM’s evidence from the first trial. As we have said, the applicant was convicted of all three charges on 11 November 2019.
Ground 1
Ground 1 alleges that the trial judge erred in failing to accede to the applicant’s adjournment application at the commencement of the second trial. In short, defence counsel advised the judge that his client suffered from an anxiety disorder, and produced a medical certificate in which Dr Suma Shivara opined that the applicant’s anxiety severely affected his ability to give instructions and understand advice. Defence counsel advised the judge that he had come into the case only recently and that that was a further source of anxiety for his client. He requested a two-day adjournment of the matter.
The judge pointed out that at the first trial the applicant, while experiencing some anxiety symptoms, was able to get through that ordeal. Further, his Honour pointed out that the first one-and-a-half days of the trial would involve the playing of various forms of recorded evidence; it was not until the third day of the trial that live evidence would be called.[4] The judge proposed to deal with the applicant’s anxiety issues by keeping a close eye on him and, if his distress became obvious, taking a break from evidence, as well as allowing a support person known to the applicant to be present and within the applicant’s field of vision at all times, even during ‘in camera’ evidence.
[4]The second day of the trial was a half-day sitting.
It is apparent that the judge did keep a close eye on the applicant’s condition and, we respectfully observe, handled the situation with sensitivity and focus. The judge observed that at the end of the first day, the applicant ‘seemed to be travelling okay’ and defence counsel confirmed this was so. On the second day, in response to the judge’s enquiry, counsel confirmed that the applicant was ‘okay’ and thereafter the judge continued to monitor the applicant’s presentation.
There is nothing in the transcript of evidence that suggests that the applicant’s defence was in any way affected by his symptoms of anxiety. It should also be noted that defence counsel did not express a concern about his client’s fitness to stand trial.[5]
[5]See Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 s 6.
Leave to appeal under ground 1 must be refused. The judge’s refusal to grant a two-day adjournment was reasonable and did not result in a substantial miscarriage of justice.
Ground 2
This ground alleges that the failure to swear in the complainant’s intermediary in the presence of the jury resulted in a substantial miscarriage of justice.
The intermediary was properly sworn prior to the complainant being affirmed and examined for the special hearing. At the second trial the judge directed that the first 20 minutes of the special hearing video not be played to the jury. This portion of the recording included the introduction of court staff and barristers to the complainant; matters personal to the complainant clearly designed to put her at ease; discussion of the difference between truth and lies, including examples of both; and what the complainant should do if she did not understand a question. It also included the swearing-in of the intermediary.
The judge advised trial counsel that he thought it unnecessary to play this part of the special hearing video and this course was not opposed. The judge did, however, direct the jury about this first portion of the special hearing, in the process of which he directed them about the intermediary’s function, her identity, and the fact that the intermediary had taken an oath to assist in ensuring that the witness understood questions and that the questions were phrased in a way that accorded with the ground rules that had been set down for the conduct of the hearing.
Trial counsel did not object to this course.
Against this background the applicant now contends, without substantiation, that it is ‘fundamental that all witnesses and officers of the court performing functions in a trial are sworn or affirmed in the presence of the jury’.
This ground is devoid of merit. If this submission is correct, even if the recording of the special hearing were played in full it would still be a contravention of this allegedly ‘fundamental’ principle because neither the witness nor the intermediary were sworn in the presence of the jury.
His Honour, in a proper exercise of court management, directed that the substance of the complainant’s oath and evidence be played to the jury and the preliminary portions of the recording be summarised where relevant. This was all done with the acquiescence of both prosecutor and defence counsel, both of whom, no doubt, wished the jury to be focused on the real issues in the case. The jury were sufficiently advised of the intermediary’s role and of the fact that, as a participant in the case, the intermediary took the oath described above.
In any event, after the jury retired, they asked to view the complainant’s evidence again and were provided with the special hearing disc. Although it was cued to commence at the beginning of the complainant’s evidence, the complete disc was supplied. Once again the judge, with the concurrence of both counsel, explained to the jury why a portion of the recording had not been played to them earlier. The jury was not prevented from viewing the entire recording,[6] including the swearing of the intermediary. Defence counsel submitted that the course proposed (providing the jury with the whole special hearing disc) made ‘perfect sense’.
[6]We will return to this under ground 10.
Leave to appeal must be refused in relation to ground 2.
Ground 3
There is equally little merit to ground 3. This ground contends that the judge erred in failing to give the jury a direction on penetration.
Penetration was never an issue that required legal direction in the particular circumstances of this trial. The complainant said she was anally penetrated twice. Regarding the first penetration (charge 1), the complainant stated that the applicant’s penis was ‘inside my bum’; regarding the second penetration (charge 3) she said that the applicant’s ‘willy was just sitting there inside my bum’. The applicant in his record of interview, and through his trial counsel, denied the allegations totally — he did not ever get into the complainant’s bed or have any sexual contact with her. There was no fine issue of penetration to be determined — either the jury were satisfied beyond reasonable doubt of the complainant’s account or they were not.
The judge advised the parties that he did not intend to elaborate on the definition of sexual penetration as it was not an issue in the trial. On this aspect, the judge proposed directing the jury simply that ‘if [they were] satisfied beyond reasonable doubt that the act of penetration … occurred, then the crime was committed’. Defence counsel then said, ‘I don’t see an issue with that, your Honour’.
Section 11 of the Jury Directions Act 2015 requires defence counsel, before closing addresses, to inform the judge whether and which elements of the offence charged are in dispute. At no stage of this trial did defence counsel indicate that there was some fine issue of penetration that required a direction on its legal meaning. The conduct was of course denied in total, but there was never an issue as to whether the conduct alleged constituted penetration.
Leave to appeal on ground 3 must be refused.
Ground 4
The applicant contends that the judge erred in failing to give a forensic disadvantage direction.
The basis for the contention was that, due to the effluxion of time between the alleged offending and the complaint, the applicant was denied the opportunity of adducing physical evidence that may have favoured him — specifically, evidence from a timely medical and forensic examination of the complainant that may have indicated the absence of dilation of the anus or absence of spermatozoa in that area. Further, forensic examination of relevant bedlinen and the complainant’s sleepwear may have provided evidence capable of casting doubt on the complainant’s account.
A further basis for the contention was that a timely complaint may have prevented the loss of the text messages between the applicant and WM in which the applicant was supposed to have expressed a sexual interest in the complainant.
The applicant now contends that the combination of the above factors should have led the judge to direct the jury as to the forensic disadvantage suffered by him.
Initially, defence counsel foreshadowed that he would seek a forensic disadvantage direction. This occurred in discussion with the judge after the recorded evidence had been played to the jury but before the oral evidence commenced:
[DEFENCE COUNSEL]: There is — I would be seeking a direction in relation to delayed complaint on the basis that — there’s two things. There’s a loss of forensic advantage. The - - -
HIS HONOUR: So this is a forensic disadvantage direction that’s sought.
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: Yes. Okay.
[DEFENCE COUNSEL]: Firstly, that the physical evidence on the night has well since gone, so — and it may well have favoured my client, given the evidence that’s come out. Secondly - - -
HIS HONOUR: What would it favour? How would it do that?
[DEFENCE COUNSEL]: Well, if there was an absence of DNA in the bed - - -
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: - - - that - - -
HIS HONOUR: There’d be an absence of DNA.
[DEFENCE COUNSEL]: Yes, Your Honour, and that would - - -
HIS HONOUR: Who’s got the disadvantage here?
[DEFENCE COUNSEL]: Well, it would be my client because the - - -
HIS HONOUR: Right. So the absence of physical items, yes.
[DEFENCE COUNSEL]: Secondly, Your Honour, the loss of those messaging - - -
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: - - - that has taken place between the mother in the meantime. I will be certainly saying to the jury at the end of this that - - -
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: - - - my client kept text messages of the last conversation that they had.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: And that’s the reason why they have that, which will be at odds with what her evidence is.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: There is a disadvantage that flows to my client because he couldn’t keep the earlier ones.
HIS HONOUR: Yes. Yes. All right. Well, look, the transcript will help me with this as I consider it.
[DEFENCE COUNSEL]: Yes, Your Honour.
At the close of the Crown case, defence counsel indicated to the judge that he did not propose to request a forensic disadvantage direction relating to ‘DNA and medical [evidence]’. By this we take counsel to mean that he did not want a direction that related to any item of bedlinen or clothing that may have once had the applicant’s DNA on it, or the lack of any medical examination of the complainant.
If defence counsel had persisted in requesting a forensic disadvantage direction on the absence of the alleged sexual interest text messages, he was obliged to request such a direction after the close of all the evidence and before the closing address of the prosecution.[7] Counsel did not make such a request.
[7]Jury Directions Act ss 11–12.
If the request had been made, s 39(2) of the Jury Directions Act provides that a trial judge may then give a forensic disadvantage direction only if satisfied that the accused has experienced a significant forensic disadvantage. In the absence of a request under s 12 of the Act, s 16(1) provides that the judge was only required to provide such a direction if he considered that there were ‘substantial and compelling reasons for doing so’.
There were no substantial and compelling reasons for giving the direction in relation to the text messages. It will be recalled that the text messages were said to have been exchanged between the applicant and WM. She gave evidence that she had neither saved nor taken screenshots of these communications. Further, she stated that, on the platform she used, frequently many of the communications were automatically deleted after a short time.
Assuming this to be correct, in relation to the text messages, no forensic disadvantage resulted from the delay in complaint. Even if the complaint were made in a timely manner, it is unclear whether the relevant text messages would have survived to be preserved as evidence.
Further, defence counsel used the absence of the impugned text messages to mount an attack on WM’s credibility, suggesting that sexual interest messages had never existed and were a figment of her imagination. The absence of screenshots underpinned this attack.
There was no significant forensic disadvantage to the applicant; no proper request was made under s 12 of the Jury Directions Act for any form of forensic disadvantage direction; and there were no substantial and compelling reasons for the judge to give such a direction of his own volition. Leave to appeal under ground 4 must be refused.
Ground 5
The applicant effectively abandoned this ground during the hearing of the leave application. It is unnecessary to consider it further.
Ground 6
Ground 6 contends that cross-examination of the complainant’s father, PJ, was unnecessarily circumscribed by the judge, thus causing the trial to miscarry. At trial, defence counsel wished to pursue the line that PJ had planted the idea of making a complaint of sexual assault into his daughter’s mind, in order to break up the relationship between the applicant and WM.
Defence counsel had not put this hypothesis either to the complainant in the special hearing or PJ at the first trial, despite the applicant raising it squarely in his record of interview. Counsel at the second trial sought to put it to PJ. In short compass, the judge heard evidence from the witness on a voir dire and determined that he would allow the witness to be cross-examined about the hypothesis and matters that were relevant to it. Thus it was put to PJ that:
·He had planted the idea of falsely accusing the applicant of sexual assault into the complainant’s mind.
·He was a controlling person.
·An interim intervention order has been taken out against him by his ex-partner, WM, on 11 April 2017.
·The reason for the interim intervention order was violence and aggression demonstrated by him towards WM.
·There were multiple occasions on which this violence took place, including sometimes in front of their two children.
·On these occasions he was endeavouring to control WM.
While these propositions could barely advance this ‘idea planted’ hypothesis, this experienced judge was appropriately generous in allowing defence counsel latitude to pursue this line of questioning. The judge, however, drew the line at cross-examination designed to establish the following:
·That PJ had driven past WM’s house and listened through windows.
·That he had engaged in specific instances of violence.
·That he had taken the children to a police station when he believed WM was setting him up to be ‘bashed’.
·That there was an occasion when he called the complainant ‘retarded’.
In our view, none of the matters prohibited by the judge, if accepted by both PJ and the jury, could rationally affect (either directly or indirectly) the assessment of the probability of the accuracy of an ‘idea planted’ hypothesis. In plainer English, this suite of issues for cross-examination was irrelevant to such a hypothesis, or to any other issue in the case. Counsel had been given ample latitude to establish that the witness was a forceful and controlling person. The judge was correct to prevent defence counsel from making a welter of this line of cross-examination and to confine him to matters that were at least of some marginal relevance.
Leave to appeal under ground 6 must be refused.
Ground 7
The applicant’s submissions
The applicant contends that the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence.
The applicant pointed to a number of matters that, he submitted, in combination should have created a reasonable doubt as to whether any of the disputed events actually occurred.
In order to understand how this ground is argued it is necessary to set out the trial evidence in a little more detail. The applicant’s schedule of evidence sets out the evidence he relies upon in support of this ground. No issue has been taken with this schedule by the respondent and it is convenient to reproduce it.[8] We are satisfied that the schedule is an accurate representation of the evidence upon which the applicant relies.
[8]References to transcript pages and VARE and record of interview question numbers are omitted.
WITNESS TOPIC EVIDENCE [WG] (complainant) Lead-up to alleged offending [WG] said that she met the applicant two or three times and he slept over on two nights.
She said the first time she met the applicant was at her Nana’s house when they watched a movie and they all had a spa bath with Ben and her mother being naked in the spa.
She said her parents used to fight and shout at each other. She said she was upset her father was not living with her.
On the first night [the applicant] stayed over they had watched a horror movie.
Then her mother tucked her into bed.
She wore shorts and a top to bed.
Alleged offending Charges 1 and 2 [WG] said the applicant got into her bed beside her and the wall. When he came into the bedroom he was wearing black jeans and a black jacket. When he was in the bed he was wearing his jocks.
He pulled [WG’s] pants down to her ankles and inserted his penis into her anus (Charge 1) which caused her to wake up.
He then put his hand on her vagina and rubbed the outside of her vagina with his fingers (Charge 2).
Immediately after alleged offending in Charges 1 and 2 [The applicant] then told [WG] ‘Don’t tell anyone, it’s our little secret.’
[WG] did not say anything because she was scared her mother would not believe her.
The laundry incident [WG] got out of bed, went into the laundry and started crying. Soon after this, her mother entered the laundry and took her back to [WG’s] bed.
The applicant had followed [WM] into the laundry.
The following morning Charge 3 Sometime after this but in the morning the applicant entered [WG’s] bedroom and again got into her bed.
She said that when she woke up she had her shorts down and ‘his [willy] was just sitting inside my bum’ and he said ‘Are you gunna turn around?’ and she said ‘No’. She said his penis felt ‘big and a little bit hairy’ and she ‘felt hair touching my bum cheeks’. She did not see his penis. She then got out of bed and went to the toilet and ‘it sort of hurt when she did a poo’.
She said the applicant got dressed in her room and she saw him go back into her mother’s bed.
She said that after Ben got out of her bed she did not feel anything else (she had said that all she had felt on her bottom was his [willy]).
The following morning
After she had been to the toilet she went to the lounge room where she watched TV until she went in and woke her mother up. When she went into her mother’s room [R] was in her bed. She said the applicant was in her mother’s bed and her mother got up and made her breakfast. Later in the morning they all went to the beach at Torquay[9] after which they dropped the applicant off at the train station.
The applicant’s October visit Between the applicant’s visits [WG] said she did not get up from her sleep and walk around the house.
[WG] said she helped put the Playstation up which the applicant brought for them.
Complaint to cousin On 5 October 2017, at her birthday party, [WG] told her cousin [BT] that she had been ‘raped’ by one of her mother’s friends from online.
She said she disagreed with [BT] that his mum was at the house.
She said she could not say what she had exactly said to [BT] other than her mum’s friend came over and did something to her.
She disagreed with [BT] that it was at his house and that it was on a day different from her birthday.
She also disagreed that she had told [BT] that what happened with Ben occurred when she was 3 years old and that her mother was in the lounge room.
Complaint to parents She told her parents she had been raped. They kept asking why she didn’t like Ben. [WM] (complainant’s mother) Relationship background In early April 2017, [WM] and the applicant began communicating via the Meetme website. They had their first date in person on 26 April 2017. The applicant visited [WM’s] home while [WG] and [R] were at school and kinder arriving around lunchtime. They became intimate and ultimately had sex.
In her first statement she had lied when she said, referring to the first night the applicant stayed over ‘we hadn’t had sex at this stage’.
She said that on the second time she met the applicant they went to her mother’s house with the children and they did not have a spa bath where they were all naked.
In April 2017 her partner [PJ] was abusing her for seeing other men and she obtained an interim intervention order. He was aggressive and unpredictable.
[WG] continually expressed to her that she was extremely upset that her relationship with [PJ] had ended.
Lead-up of night of alleged offending They next met up on 12 May 2017 when [WM] picked the applicant up from the station. They had previously had some discussion about him staying the night. [WM] picked [WG] and [R] up from kinder and school and then the four spent some time at home and watched a movie before going to bed around 10:00 pm.
[WG] put herself to bed and [WM] tucked her in and said good night. She was still wearing her school uniform. [R] went to bed with [WM] and the applicant although once he was asleep [WM] moved him into his own bed. The applicant had been wearing pants and a jumper and he had taken his clothes off and placed them off to the side in the bedroom and wore only boxer shorts to bed.
Laundry incident During the night [WM] got up to investigate a light. When she did so she noticed that the applicant was not in the bed next to her. In her first statement she had said ‘I hadn’t noticed him getting out of bed.’
She thought that both the lights to the kitchen and the laundry were on.
It was about midnight; she felt like she had not been asleep for long.
She had put [R] in his own bed at around 11:00 pm.
She entered the laundry and [WG] was crouching down.
In her first statement she had not mentioned the laundry incident. Detective Kot had asked her specifically about whether [WG] was crying in the laundry and she had said ‘no that didn’t happen’ and she was asked whether she would remember something like that and she said ‘yes’. She had told the Detective that she had never found [WG] crying in the laundry. When she made her second statement she said she had a ‘vague memory’ of waking up and finding [WG] in the laundry.
[WG] was wearing leggings and her school polo shirt. She returned her to her bed.
Observations of the applicant in the kitchen She saw the applicant in the doorway of the kitchen and he was fully clothed. She did not know what he was wearing.
[WM] said she thought she asked the applicant what he was doing and he said he couldn’t sleep on her mattress.
She said that the following day he did mention the mattress saying it wasn’t very good for his back and that for this reason he did go into the lounge room at some point the previous night.
The next morning
[WM] said that when she got up that morning it was 8:00 am or 8.30 am and everyone was already up; the applicant was in the hallway and [WG] and [R] were in [R’s] room and she could hear everyone talking and laughing.
Second sleepover
A few weeks later the applicant stayed over again. [WM] went to Melbourne to pick him up. They had dinner, the children played outside and they watched TV. The applicant and [WM] slept in her bedroom. There was no discussion about the mattress. Nothing happened to [WG] overnight. When [WM] woke up in the morning the applicant was next to her. He went home before lunch.
She said that they went to the beach on the morning of the second night the applicant stayed over.
Applicant’s text messages
During the time leading up to the September school holidays there were probably five or six occasions probably over a month when the applicant by text message asked [WM] ‘if he could touch [WG] or have sex with her’. When asked what she did in response she said ‘I ignored it.’ She said she said ‘no’, ‘why were you asking me that?’. She said ‘I can’t remember what he replied to that but I shut it down and that’s the reason why I never had him at my house around my kids again.’ She said that sometimes he would talk about having sexual relations with children and sometimes she would go along with it and just say yes. The questions he asked were about [WG]. She also said that the applicant asked for a cute photo or photos of [WG]. She no longer has the text messages.
In cross-examination she said that she ignored these messages and kept talking to the applicant normally as a friend. She did not ask [WG] whether the applicant had done anything sexual to her after he had sent the text messages.
Before and after the applicant brought the Playstation to the house she kept talking to him online and texting him as she normally would.
Applicant’s visit in October
The next time the applicant came down to [WM’s] home was in October and on this occasion he brought a Playstation 4. [WG] knew he was coming but she did not really have any reaction.
[WM] said that [WG] was quiet but her usual self on this occasion.
On one of the last occasions the applicant came around she told him that she was still having sexual relations with [PJ]. She said the applicant never wanted a relationship.
[WG’s] complaint In December she received a phone call from [PJ] who told her [WG] had said the applicant was annoying. He came over the following day and they asked [WG] what she meant by that and she said ‘he touched me’ and [PJ] asked her ‘where did he touch you?’ and said some examples and then she said that she felt something go inside her bottom and she felt wet stuff.
They decided to go to the police the following day.
[WG] said that the applicant had gone to her bed only on one occasion.
Contact with the applicant before police contact
Before going to the police [WM] texted the applicant concerning [WG’s] allegations. She said that the applicant denied the allegations and he asked if he should get a lawyer and said that if she went to the police he would be in trouble. She said the applicant had sent her a text stating ‘I didn’t do anything.’ She said she did not remember sending a text to him stating ‘I don’t think so. What will you do for us not to go to the police?’
[PJ] (complainant’s father) Complaint of [WG] to father In December 2017, [WG] told her father, [PJ], that she did not like the applicant. When asked ‘Why?’ she said ‘He’s annoying’ and ‘He touches me.’ When he asked ‘What do you mean? Like muckin’ around?’ she said ‘No he touched me down there.’ She pointed to her vagina.
On the Sunday when he dropped the children back to [WM’s] home he relayed this information to [WM], but there was no further conversation with [WG] that day.
On the following Tuesday [PJ] was at [WM’s] home and they went into [WG’s] bedroom and he asked her ‘Did Ben touch you?’ and she said ‘Yes.’ When he asked ‘Where?’ [WG] pointed to her vagina. [WG] said the applicant jumped into her bed with her. He laid next to her and put his hand near her belly and he put his penis in her bum. She said when this happened she felt like white stickiness down there.
Text of [WM] to the applicant [WM] texted the applicant by Instagram asking him whether he had touched her daughter and he responded ‘I didn’t touch your daughter.’ The following day they went to the police.
In cross-examination [PJ] denied that he had put the idea of complaining that the applicant had sexually assaulted her to [WG].
[BT] (complainant’s cousin) Complaint of [WG] to cousin [BT] recalls that during the school holidays in Spring or Summer 2017, at his house in East Geelong, [WG] told him that she had been raped by a man her mother knew after he had been sleeping in her bed.
[BT] recalls that [WG] said she was aged 3 years when this happened. [BT] said it was not [WG’s] birthday.
[BT] didn’t tell anyone then. Nothing was brought up about it until [WM] spoke to [BT] at the start of 2018.
[BT] said he did not remember how it was that [WG] started to tell him about this matter. It was not at a birthday party.
[BT] said that [WG] had said that she ran off into her mother’s room and slept in there, and her mother was in the lounge room sleeping on the couch. He said that [WG] did not say there was any sexual behaviour between her and the man other than the man taking her clothes off.
[BT] said she heard his mum and [WM] speaking about what [WG] had said and what he heard was different from what [WG] had told him; she had told him that she ran to her mum’s room and it wasn’t on her birthday but she had told [WM] was that it was on her birthday and when he took he clothes off she had run to the bathroom.
[WG] had not told him about this on her 10th birthday. No one else was around when she told him. She told him that she had told two of her friends who were at the birthday party. [BT] said he had been to her 10th birthday and she had not told him about the incident then.
[BT] said [WG] had told him about the incident a couple of months before her birthday.
He had told [WM] that there were differences in [WG’s] story. [WM] had told [WG] in his presence that there were differences in her story and [WG] had responded that she did go [to] the bathroom.
Ben Hill (applicant’s record of interview)
Lead-up to alleged offending
The applicant’s case was that he had only stayed over on one occasion and that they had sex after going to bed with [R] remaining in the bed asleep.
Text communication surrounding report to police
The applicant said that [WM] had sent him a text message asking him ‘What can I do to stop them going to the police?’
Summary of admissions and denials in record of interview The applicant admitted meeting [WM] online, engaging in a sexual relationship with her, meeting [WG] and [R], and staying over at her house once.
He said that on the occasion he stayed over he had sex with [WM] whilst [R] was asleep in the bed.
He categorically denied ever getting into [WG’s] bed, touching her vagina, penetrating her anus with his penis or telling [WG] ‘Don’t tell anyone, this is our little secret.’
He also stated he does not shave or wax his genitals.
He denied telling [WM] that he wanted to involve [WG] in sexual activity.
In the interview the applicant suggested that a possible reason for the allegations was because [WG] may have wanted to get at her mum for having a relationship with a man other than her father.
Ms Kot (informant) Investigation Ms Kot the police informant gave evidence that she conducted [WG’s] VARE.
On 17 January 2018 she conducted a record of interview with the applicant.
Tendered as Exhibit D were six photographs/ screenshots taken from the applicant’s phone.
Ms Kot testified that [WM] had not kept any messages from the applicant on her phone. She asked [WM] about [WG] crying in the laundry on the first night when the applicant stayed and she said [WM] said ‘No that didn’t happen.’ She also said that [WM] agreed that this was something she would remember. She said that [WM] had told her that she had never found [WG] crying in the laundry then taken her back to bed. [WM] had said that since the incident [WG] does get up during the night. She made one change to her previous statement and that was that on the first night she had sex with Ben Hill. Two weeks later she made a further statement saying that she had found [WG] crying in the laundry. In that further statement she raised for the first time text messaging by Ben Hill seeking sexual relations with [WG].
The informant said that [WG] had not been taken to a doctor for examination at the time of the alleged incident or during the investigation. No DNA or fingerprints had been taken because of the lapse of time.
[9]There was some dispute, of no significance, over whether the beach excursion was to Torquay or Anglesea. We refer, later in these reasons, to Anglesea beach.
In written submissions, the applicant argued that the following combination of matters led to the conclusion that the jury, if they had acted properly, must have entertained a reasonable doubt on all charges:
(a) the differences in the content of the respective complaint evidence of WG and BT;
(b) the differences in the content of the respective complaint evidence of WG, WM and PJ;
(c) the differences in the respective evidence of WG and WM as to what occurred at meetings with the applicant;
(d) the unlikelihood of anal penetration of a child occurring on two separate occasions in a bedroom next to WM’s bedroom with the doors to both rooms open;
(e) the unlikelihood of the anal penetration occurring without the complainant making any noise;
(f) the unlikelihood of anal penetration occurring in the factual circumstances described by WG;
(g) the differences in the respective evidence of WG and WM as to what occurred during the evening of the alleged assaults; and
(h) the matters raised under grounds 3, 4 and 5.
In oral argument, senior counsel for the applicant emphasised divergences in the evidence of the complainant and that of other witnesses as to the events of the relevant evening; varying accounts of the timing of the trip to the beach; and evidence relating to a text message sent by WM at around the time the complaint was made.
The evening of the alleged sexual assaults
In the complainant’s VARE, she stated that after the first sexual penetration she pushed the applicant away, got out of bed and ran into the laundry. She started crying; after maybe three minutes her mother came in and asked her why she was crying. The complainant said she did not say anything ‘because I was scared to tell her. I thought she wouldn’t believe me.’ The complainant went on to say that the applicant followed WM into the laundry. Her mother took her back to bed and the applicant went back to WM’s bed.
WM said nothing of this ‘laundry incident’ in her first statement, dated 6 January 2018. In her second statement, dated 14 April 2018, she corrected another matter but stated to the police officer taking that statement that the laundry incident ‘didn’t happen’.[10] In her third statement, made on 28 April 2018, she mentioned for the first time that she had encountered her daughter crying in the laundry.
[10]Evidence of Detective Senior Constable Alana Kot.
In evidence, WM described this incident in similar terms to her third statement. She said that after she had returned WG to bed, the applicant was in the entrance to the kitchen fully clothed.
The applicant further contended that the alleged sexual assaults and the surrounding circumstances were inherently highly improbable. He submitted that:
·It was unlikely that this sort of activity would occur on the applicant’s first or second visit to the complainant’s house in circumstances where he barely knew the complainant.
·It was unlikely that the applicant would be brazen enough to attempt this sort of sexual conduct in the bedroom adjacent to WM’s bedroom, particularly with both doors open.
·It was unlikely that the applicant would have anally penetrated the child victim without the victim crying out or protesting or otherwise making a noise sufficient to wake WM.
·On WM’s account, the applicant was undressed, save for boxer shorts, when he entered her bed. He had put his other clothing aside in the bedroom. However, on the complainant’s account, he was dressed in black jeans and a jacket when he entered her bed. The applicant contended that it was highly improbable that the applicant would leave WM’s bed in boxer shorts, dress at least to the extent of putting on jeans and a jacket, and then enter the complainant’s bedroom intending to sexually assault her.
·On the second occasion, after the complainant was allegedly anally penetrated for a second time, the complainant stated that the applicant got dressed again after leaving her bed and then returned to WM’s bedroom. This meant that, on the Crown case, the applicant was getting dressed and then undressed each time he entered the complainant’s room, only to get dressed again after having sex with the child victim. This, it was submitted, compounded the improbability of these events occurring at all, particularly against the background of the applicant’s denials of any sexual contact whatsoever.
·The applicant then submitted that the timing of a trip to the beach at Anglesea by the complainant, the applicant and WM cast further doubt on the Crown case. The prosecution case, based on the complainant’s evidence, was that on the morning after she was sexually assaulted, she, her mother and the applicant went to Anglesea beach. Photos were produced (but for some reason not tendered) of all three at the beach on 27 May 2017. WM’s evidence was that the applicant had stayed over for the first time on 12 May 2017, that is, a fortnight earlier, and it was during this latter cited weekend that the laundry incident had occurred (and by implication, the sexual assaults). Thus, it was submitted, there was another inconsistency in the accumulating suite of inconsistencies and improbabilities that constituted the Crown case. It was further submitted that, had the assaults actually occurred, it was unlikely that the complainant would have accompanied the applicant and her mother to the beach without any apparent sign of distress or discomfort.
The text message from WM to the applicant
The applicant also placed emphasis on a text message sent by WM to the applicant at around the time of the complaint to the police. The message reads, ‘What will you do for us not to go to the police?’ This message was sent on the afternoon of Wednesday 13 December, after an initial complaint was made to the complainant’s father on the Saturday before, and a full complaint was made to both parents on the Tuesday before this impugned message. This was said by senior counsel for the applicant to ‘cast a doubt over the whole case’.
Complaints
The applicant relied on the delay in complaint, and inconsistencies between the complainant’s accounts of the circumstances of the complaint and that of BT, a ‘complaint witness’ called by the prosecution. In short, no complaint to anyone was made until October 2017 (to BT), approximately five months after the sexual assaults were said to occur. BT was the complainant’s then 13-year-old male cousin and the complainant complained to him that she had been raped. This was on 5 October 2017, at her birthday party. She said she told him, ‘it was one of Mum’s friends offline’ (sic). BT, in contrast, stated that the complainant told him, ‘I’ve been raped before … When I was three there was this man or guy … in the house that [WM] knew.’ BT stated that the complainant told him that this man had been sleeping in her bed, started taking off her clothes and she then ‘ran off into [WM’s] room and … slept in there’. WM was sleeping on the couch in the lounge room. Senior counsel for the applicant submitted that there was no reason not to accept BT’s evidence, and it cast further doubt on the Crown case.
The applicant also relied upon the delay between the alleged offending and December 2017, when the complainant told her father that she did not like the applicant: ‘[H]e touched me down there.’ After that, details were added as further complaints were made.
The sexual interest evidence
It was further submitted that the evidence of sexual interest was unreliable. We review this evidence in our consideration of ground 9. In short compass, the evidence of the applicant requesting a ‘cute photo’ of the complainant from WM was excluded at the first trial, should not have been led at the second trial, and nevertheless was relied upon by the prosecution to support the proposition that the applicant had a sexual interest in the complainant. The submission continued that, absent the ‘cute photo’ evidence’ the remaining evidence of sexual interest is constituted by allegations made by WM about the content of various text messages which were exchanged between her and the applicant and which no longer existed. It was submitted that the text messages evidence was entirely unreliable — there was no record of it and WM made no mention of it until her third statement, and did not produce her phone for forensic examination.
The case was said to be ‘riddled with inconsistencies, improbabilities and unreliabilities’ (sic).
The respondent’s submissions
The respondent submitted that, given the way in which the applicant approached this application, this Court must assume that the jury assessed the complainant to be credible and reliable. The Court must then examine her evidence to see whether, despite the jury’s assessment, it reveals inconsistencies, discrepancies or other inadequacies such that the Court is positively satisfied that, if the jury were acting reasonably, it should have entertained a reasonable doubt.
The respondent submitted that it was open to the jury to accept the complainant’s account of her complaint to BT and reject that part of his account concerning her reported age (three) at the time of the alleged rape. The jury had before them the recorded evidence of both parties and were well placed to determine this issue.
As to the asserted discrepancies between the complainant’s accounts and those recorded by her parents, those were differences in insubstantial detail only. The complainant, once she revealed she had been raped, maintained that allegation consistently, and it is unreasonable to expect precisely matching recollections of conversations that occurred over a period of time and concerned events of many months earlier.
It was submitted that inconsistencies as to timing arising from the beach excursion evidence are ‘insignificant and understandable’. It is human nature to remember with more precision traumatic events compared to innocuous or trivial events.
It was further submitted that the fact that the offending occurred at a time when WM was in the adjacent bedroom does not render the complainant’s account implausible or unbelievable. It is an unfortunate fact that brazen offending against children in a family setting occurs very frequently.
It was thus reasonably open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.
Consideration
The question to be resolved in an ‘unreasonableness ground’ was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen,[11] and more recently affirmed in Pell v The Queen.[12] The court must ask itself ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[13] This test was put another way by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen:[14] ‘[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.’[15] However expressed, the test is the same — to say the jury ‘must have had a doubt’ is to say ‘it was not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.[16]
[11](1994) 181 CLR 487.
[12](2020) 268 CLR 123 (‘Pell’).
[13]Ibid 146–7 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), quoting M (1994) 181 CLR 487, 493.
[14](2007) 230 CLR 559.
[15]Ibid 597–8 [113].
[16]Pell (2020) 268 CLR 123, 147 [45].
In this case we have concluded that on all the admissible evidence (that is, save for the inadmissible ‘cute photo’ evidence and the contentious ‘reason why’ evidence discussed under ground 9) it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. Many of the applicant’s criticisms of the prosecution case are criticisms of WM, rather than of the child complainant herself. WM was challenged about her account of the ‘laundry incident’, her recollection of the timing of the beach excursion and about whether the applicant had stayed over at her house two weeks prior to the alleged sexual assaults. The applicant contended that her account of text messages that she said passed between her and the applicant, in which he expressed a sexual interest in the complainant, was completely false. The applicant pointed to a surviving text message that he contended amounted to a ‘shakedown’ for money, and that ‘cast a doubt on the whole case’. The complainant’s father was also criticised by the applicant, who suggested in a text message and in his police interview that PJ had prevailed upon his daughter to give a totally false account of events that never occurred.
It must be borne steadily in mind that the complainant in this case was not WM or PJ; it was the nine-year-old WG. The prosecutor described her to the jury in his final address as a ‘truthful and reliable witness’ who stood the test of cross-examination and there was nothing in her evidence in the VARE or at the special hearing that ‘would cause you to have any doubt’ that she was speaking the truth. The prosecutor submitted that ‘this was not a little girl with a script’ but just a little girl ‘doing her best to say, “This is what I know.”’ From our analysis of the VARE and the special hearing, we consider that it was well open to the jury to reach this view of the complainant’s evidence. We have independently reached this view.
We consider that it was open to the jury to conclude that the complainant’s evidence of the offending was detailed in ways one would not expect from a nine-year-old girl unless it had actually been experienced. We have independently reached this conclusion also.
Assuming the jury assessed the complainant as a credible, reliable witness, we must then examine the evidence to see whether it reveals inconsistencies, discrepancies, improbabilities or other inadequacies such that the jury must have entertained a doubt about the applicant’s guilt.[17]
[17]See ibid 164 [118].
We do not consider that the attack mounted upon the prosecution case, which in large measure was a collateral attack upon the complainant’s parents, got close to compelling a reasonable doubt.
We shall deal with some of the applicant’s main criticisms of the prosecution case.
The laundry incident
The complainant’s account of going to the laundry straight after being anally penetrated, crying and being comforted by her mother, who put her to back to bed, was uncomplicated and consistent. The criticism of that account is made through WM, who did not mention encountering her daughter in her first statement to police, specifically denied verbally to a police officer that she encountered WG crying in the laundry at the time she made her second statement, and then finally stated that she did remember this occurring on the occasion of her third statement.
The defence went to the jury arguing that the applicant denied that anything happened that night, and that the jury should conclude that WM’s statement to police that the laundry incident ‘did not happen’ supported the applicant’s account. From this the jury could conclude, so it was contended, that WM had lied when she finally told the police about finding her daughter in the laundry crying and thus the complainant was lying as well. This does not follow. It was open to the jury to accept the complainant’s simple, consistent account as truthful and reliable, notwithstanding her mother’s oscillating account of it.
The beach visit
It will be recalled that the applicant contended photographic evidence of the excursion to the beach at Anglesea demonstrated that this occurred on Sunday 27 May. The complainant said that they went to the beach on the day after she was assaulted. However, WM said that the laundry incident had occurred on the night of 12–13 May. In our view, there is no internal inconsistency in the complainant’s account itself, and to the extent that the complainant’s account differs from her mother’s it is about a detail of no real significance, and in any event the jury were certainly entitled to prefer the complainant as a witness over her mother.
The complaint to BT
It was open to the jury to accept the complainant’s account of what she said to BT in October 2017, and to conclude that BT either misheard the reference to the age of three, or was mistaken about it.
The improbability of the offending
The brazenness of the alleged offending, occurring in the bedroom adjacent to WM’s bedroom, is not a compelling reason to disbelieve the complainant. The fact that behaviour in a family setting may be brazen or high-risk does not mean the behaviour did not occur.
The criticism of the dressing and undressing exercise spelt out by the applicant is also of little assistance to his case. It relies on human recollection, with all its flaws, about a relatively insignificant detail recalled by one adult who had just woken up and one child, and about an event that was said to have occurred many months earlier. It is a matter of human experience that recall is usually clearer and more accurate about events that are significant in one’s life, and peripheral circumstances will usually not be remembered with such clarity.
The ‘shakedown’ text message
The ‘shakedown’ text message sent by WM to the applicant at around the time police were to become involved, whilst having some theatrical appeal for the defence’s final address, does not bear upon the reliability or credibility of the complainant. Even if the jury were to conclude (as we do) that the message ‘What will you do for us not to go to the police?’ was a thinly veiled demand for money, it again has no impact on the truthfulness of the complainant’s account of events that occurred months previously. It may have been simply an opportunistic demand by the mother of a child sex victim. It neither supports nor casts doubt upon the complainant’s account.
The unpreserved sexual interest text messages
Similarly, the series of sexualised text messages, referred to in more detail under ground 9, or, more specifically, their absence, have no impact on the credibility or reliability of the complainant’s evidence. They were relied upon in the prosecution case as evidence of the applicant’s sexual interest in the complainant that bore upon the likelihood of his behaving as was alleged. The messages’ existence was amply tested at trial and it was open to the jury to accept WM’s word that those expressions of sexual interest in fact passed from the applicant to her. Even if the jury rejected WM’s evidence in this regard, that rejection would not spell the end of the prosecution case. The jury would still have to consider the complainant’s clear, uncomplicated and detailed (in important respects) account of events. The absence of supporting evidence of this account (through demonstrating sexual interest) did not extend to contradicting the complainant’s account.
If we leave the ‘cute photo’ and ‘reason why’ evidence discussed under ground 9 to one side, we are comfortably satisfied that it was open to the jury to convict the applicant of the charges alleged. Put more correctly, the applicant has failed to establish that, on all the admissible evidence, if the jury were acting reasonably it must have entertained a reasonable doubt. Leave to appeal under ground 7 must be refused.
Ground 8
Ground 8 is an aggregation ground. In its amended form, it contends that, if none of grounds 1–6 or 9–10 individually amounts to a substantial miscarriage of justice, then they do so in combination. As we have allowed this appeal under ground 9, it is unnecessary to consider ground 8.
Ground 9
This ground asserts that there were two separate pieces of evidence, ruled inadmissible at the first trial, and thus inadmissible at the second trial, which were nevertheless led in evidence by the prosecution in the second trial and relied upon in proof of the applicant’s guilt. For convenience we shall categorise these pieces of evidence as the ‘cute photo’ evidence and the ‘reason why’ evidence.
The ‘cute photo’ evidence
At the first trial, the prosecution gave notice (the ‘tendency notice’) under s 97(1)(a) of the Evidence Act 2008 (the ‘Evidence Act’) of its intention to adduce tendency evidence. In that notice the prosecution sought to rely upon two identified tendencies, the first of which is relevant to this ground of appeal, and was expressed as:
the tendency of the Accused to:
Have a particular state of mind, namely:
(a)To have a sexual interest in female children and in the Complainant, [WG], and a willingness to act on that interest by engaging in sexual activity with [WG] …
The evidence relied upon and said to support this tendency, among other evidence, was stated in the tendency notice to be as below:
Substance of evidence relied upon to support tendency Features of evidence establishing the tendency Relevant witnesses and depositions reference Date: Unknown
Time: After July 2017
Place: North Geelong
Substance of Evidence:
The accused sent [WM] pornographic images involving children. [WM] described one of these images as being of a seven or eight year old girl and an older woman touching each other’s vaginas. [WM] was shocked by this image. Mr Hill asked her if it turned her on and she told him no, that she ‘wasn’t into that’ and ‘that it was wrong.’ The accused asked [WM] to send him photos of the Complainant and [stated] that if she, [WM], wanted a relationship with him then he wanted [WM] to be sexually involved with [WG] and asked whether she would do with the Complainant what the woman and girl in the image were doing.· Sexual interest in the Complainant
· Sexual interest in female children
[WM] page 93 depositions at para 26–7
We have emphasised the words of the tendency notice relevant to the ‘cute photo’ evidence. It will be immediately observed that the prosecution linked this request for photos of the complainant with a demand of WM that, if she wanted a sexual relationship with him, she be sexually involved with her daughter. Clearly, if this evidence was accepted it would be potent evidence in the prosecution case.
The evidentiary basis for the ‘cute photo’ assertion in the tendency notice came from para 3 of WM’s fourth statement, dated 12 July 2018. It reads:
I did send naked photos of [WG] to Ben. I know that while we were communicating he asked me to send him a cute picture of [WG] and I would have sent him some pictures when he asked. I think I would have sent him around five images of [WG]. I can’t remember the exact photos that I have sent to Ben. I also sent Ben a few photos of [R]. I only sent Ben photos of the kids when he asked for them. I’m not sure if I sent any of the images before or after [B]en expressed interest in [WG] sexually.
At the committal hearing, [WM] was asked about this ‘cute photo’ conversation. She agreed that the applicant asked for a couple of photos of the children and that she sent him the first photos that came to mind. She further agreed that there was nothing from what the applicant said that indicated that he wanted ‘nude photos or anything of that kind’. She also sent photographs of her son to the applicant.
It was contended in legal argument before the first trial judge, Judge Bourke, that the ‘cute photo’ evidence was placed into a far less potent context by this explanation from WM and thus its probative value did not meet the test in s 101(2) of the Evidence Act. The fact that WM sent, among a selection, naked photos of her daughter in response to this request did not change the benign nature of the request.
Judge Bourke accepted this submission and ruled that, while some of the evidence the subject of the tendency notice met the s 101(2) test, the ‘cute photo’ evidence did not. Relevantly, s 101(2) prohibits the prosecution from adducing tendency evidence ‘unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused’. In considering the probative value of this evidence, Judge Bourke said:
What has the appearance of [an] implication of sexually motivated requests by the accused for naked or provocative images of the complainant becomes at committal … the somewhat vague circumstance that the accused, at best, [requested] photographs of both of [WM’s] children in the context of both adults exchanging photographs including of themselves. There is nothing, she concedes, indicating that he wanted naked photographs or similar.
Judge Bourke then held that, in that context, ‘[t]he apparent probative value tends to melt away’. The judge noted that the s 101(2) test was a stringent one. His Honour then ruled that the admission of the photographs in the overall circumstances of the case would be highly prejudicial, carrying with it a high risk that a jury, acting upon the receipt by the applicant of the images, would conclude that the applicant was a paedophile, despite the seemingly innocent nature of the initial request (as opposed to WM’s response). Judge Bourke noted that there was no evidence of the applicant managing these photos on his phone so as to demonstrate a particular interest in the complainant.
This ruling was delivered ex tempore in the presence of both prosecution and defence counsel at the applicant’s first trial. Its effect was unambiguous. There was to be no mention of the ‘cute photos’ request, or the response to it. After the jury failed to agree at this circuit trial, the relevant ruling was transcribed by Victorian Government Reporting Service on 1 May 2019.
Notwithstanding Judge Bourke’s pre-trial ruling, the following evidence emerged during WM’s evidence-in-chief at the first trial:
[PROSECUTOR]: … In these texts leading up to say the September school holidays, was there any talk between — and when I say ‘talk’ I mean or communication related to [WG]?---Yes.
Tell the court about that?---Um so he had come out, ah, he was showing interest in [WG] and asked — used to ask for photos or a cute photo of her and also asked if he could do things to her.
And you need to tell us, please, about what that meant, what did he ask to do with [WG]?---Um if he could … touch her or have sex with her.
How often did that occur?---On a few occasions.
When you say, ‘a few’ what do you mean?---Probably five or six.
Over what time period?---Probably a month.
Yes. When you say he was asking whether he could have sex with her, what words did he actually use in that text forum?---I can’t recall all the exact words but that’s what — I think that’s what he said exactly. He asked to have sex with her.
What did you do in response?---I ignored it.
Did you respond at all?---Um I said ‘no’, and ‘why were you asking me that?’
Defence counsel at the first trial raised this evidence with the judge at the first convenient opportunity. In discussion, the judge observed that to raise it with the jury ‘would be counterproductive and in any event, is it not really overwhelmed by what she went on to say about the matters that I have allowed[?]’ In short compass, the matters the judge had admitted as tendency evidence were:
·The applicant used to ask (in text messages) if he could touch the complainant or have sex with her. He did this on five or six occasions over a month-long period.
·Sometimes, in text messages, he expressed a wish to role play and fantasise about having sexual relations with WG, and WM would sometimes go along with that and say yes.
Defence counsel complained to the judge that the ‘cute photo’ evidence placed him in a difficult predicament. If he cross-examined about the photos he could not put to WM that there was no discussion about photos. The judge then observed that ‘any cross-examination … about photographs risks the introduction of the photograph I didn’t allow, which I think would be dynamite, quite frankly’. This was a reference to the naked photograph of the complainant supplied to the applicant by her mother.
The judge asked defence counsel again, ‘[W]hat do you want me to do?’ Defence counsel, whilst seeking time to consider his position, surmised that one option was to ‘just really let the whole thing disappear into the ether’. And that is what happened. The ‘cute photo’ portion of WM’s evidence was not mentioned again by counsel or the judge. It ‘disappeared into the ether’, and that is where it should have stayed.
In the second trial, before Judge Mullaly, the audio-visual recording of WM’s evidence was played in full, including the ‘cute photo’ portion set out at [99] above. It is accepted by all parties to this application that it should not have been so played. We shall come to consider the effect of the introduction of this evidence later in these reasons.
The ‘reason why’ evidence
In her evidence-in-chief, WM stated, in effect, that the ‘reason why’ she ceased allowing the applicant to stay at her house was because he had sent text messages to her which disclosed a sexual interest in the complainant. It will be recalled that during that evidence WM had stated that, in response to those text message requests she had said ‘no’, and ‘why were you asking me that?’ She continued:
And he said — I can’t remember what he replied to that but I shut it down and that’s the reason why I never had him at my house around my kids again.
The applicant asserts in ground 9 that Judge Bourke had ruled this evidence inadmissible. A close scrutiny of the transcript reveals that his Honour raised its doubtful admissibility in discussion with defence counsel about management of the ‘cute photo’ issue. There was no definitive ruling as to the ‘reason why’ evidence (which was volunteered unresponsively by WM), although it is clear enough that the judge thought its admissibility doubtful. We share his Honour’s doubts.
This particular complaint under this ground was pursued only faintly in the applicant’s initial written submissions, and again only faintly in his expanded supplementary submissions. It also received very little attention in the respondent’s written submissions under this ground or in oral argument, where the focus of both parties was on the ‘cute photo’ evidence.
Consideration
The ‘reason why’ evidence
The complaint about the ‘reason why’ evidence can be dismissed shortly. We have observed that it was never the subject of a ruling at the first trial. The evidence was volunteered unresponsively in the first trial by a difficult witness. No objection to it was taken at the time, although it was raised in discussion of the ‘cute photo’ evidence. It remained on the audio-visual recording of WM’s evidence and was played to the jury in the second trial.
In our view, when viewed in the context of the entirety of the evidence in the first trial, even if the ‘reason why’ evidence was inadmissible, its impact on the trial, viewed either in isolation or in combination with other evidence, was negligible, and incapable of causing the trial to miscarry. In criminal trials, evidence that is strictly inadmissible will frequently be given; often it is unresponsive to the question and given by well-intentioned witnesses who have no understanding of evidentiary rules. The remedy, upon objection, is usually a judicial direction to ignore that evidence, or, if it is thought that a judicial direction may serve to highlight what otherwise may be viewed by the jury as one innocuous answer out of thousands in the case, all parties may elect to leave the evidence well alone. If the evidence is perceived by counsel to be incurably damaging to the case, he or she may make an application for the jury to be discharged, and, if there is a ‘high degree of need’ to do so,[18] that is what will occur.
[18]R v Boland [1974] VR 849, 866 (Adam, Little and McInerney JJ), applying Winsor v The Queen (1866) LR 1 QB 390.
In this case, defence counsel did not object to the ‘reason why’ evidence in the first trial, no application for a discharge was made, and no further reference was made to the disputed evidence. This was, we infer, a forensic decision made by experienced counsel at the first trial. We consider it to have been a sound decision.
If, at the second trial, defence counsel considered this passage to be objectionable, given it had not been the subject of a ruling at the first trial, he could have raised the issue with Judge Mullaly and sought its exclusion. He did not. Accepting for the moment that the ‘reason why’ evidence was strictly inadmissible, in the context of the overall evidence in the second trial[19] we repeat what we have said of it in respect of the first trial — we consider its impact to be negligible and incapable of causing the trial to miscarry.
[19]Which was identical in all material respects to the evidence in the first trial.
Ground 9 cannot be made out on the basis of the ‘reason why’ evidence.
The ‘cute photo’ evidence
It is plain that the ‘cute photo’ evidence was ruled inadmissible by Judge Bourke. It is also plain that WM, in response to an open-ended question from the prosecutor at the first trial, gave evidence that directly contravened that ruling and linked the inadmissible requests for a ‘cute photo’ with the admissible requests to ‘touch [WG] or have sex with her’.
The impugned ‘cute photo’ evidence should have been edited from the audio-visual tape that was played to the jury at the second trial. Section 205 of the Criminal Procedure Act 2009 (‘CPA’) provides:
(1)If a new trial is held, the court may treat any order or other decision made at a directions hearing or other pre-trial hearing held in connection with the earlier trial as if it had been made at a directions hearing or other pre-trial hearing held in connection with the new trial.
(2)Despite subsection (1), the court need not treat an order or other decision in the manner set out in subsection (1) if the court considers that to do so—
(a)would be inconsistent with any order or decision made or direction given on an appeal; or
(b)would otherwise not be in the interests of justice.
If the ‘cute photo’ evidence was to be admissible in the second trial, a decision would need to be made by Judge Mullaly, either by application from either of the parties or on the Court’s own motion, to depart from the earlier pre-trial ruling.[20] No such application was made, nor does it appear that Judge Mullaly considered the desirability of doing so according to the factors set out in sub-s 205(2). It appears that the ‘other [pre-trial] decision’ of Judge Bourke was simply overlooked by both prosecutor and defence counsel and the prosecutor led the still inadmissible evidence seemingly unfettered by the earlier ruling. We have been advised that the five-page transcript of Judge Bourke’s ruling was not supplied to the prosecutor in his brief, notwithstanding that it had been generated six months earlier. This is not a complete answer to the prosecutor’s decision to allow this material to be introduced into evidence. The fact of the ruling and its effect are set out in the transcript of pre-trial argument from the first trial. The prosecutor must have had that material.
[20]Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 476 [104], n 91 (Redlich, Priest and Coghlan JJA).
No criticism of the second trial judge can be made in this regard. It is unrealistic to expect a judge in a busy criminal circuit to pore over the transcripts and depositions of every trial listed for that circuit. In this case the judge was entitled to rely on the prosecutor to be thoroughly familiar with the relevant material in the case and to lead only admissible evidence. The judge was also entitled to rely on defence counsel to be equally familiar with the material and, if inadmissible evidence were sought to be adduced, to object at once to the introduction. Regrettably, this did not happen.
Before this Court, the applicant argued that the trial turned on whether the complainant could be believed. That in turn depended (to a significant degree) on whether the applicant had demonstrated a sexual interest in the complainant. On WM’s evidence, the applicant had sent her a number of text messages over the course of a month requesting to touch WG or to have sex with her. None of these text messages had been preserved and whether they had ever existed was hotly disputed. The impugned ‘cute photo’ evidence tended to support the proposition that the applicant had a sexual interest in WG, and it could not be disputed without running the risk of opening up the fact that WM had sent naked photos of her children to the applicant. The failure to edit the ‘cute photo’ evidence out of WM’s taped evidence added some credibility or cogency to WM’s account of the content of the text messages. In a trial that was finely balanced and depended largely on the reliability and credibility of the complainant’s account, it was submitted, the introduction of this inadmissible material caused the trial to miscarry.
The respondent accepted that the ‘cute photo’ evidence was inadmissible, however, it was submitted, defence counsel at the second trial sought no editing of WM’s taped evidence and, at any event, the ‘cute photo’ evidence was overwhelmed by the admissible tendency evidence. Further, after the tape of WM’s evidence was played, defence counsel did not object to any part of it. Defence counsel’s cross-examination about the text messages was uninhibited by the introduction of the ‘cute photo’ evidence.
After much reflection we have concluded that the applicant has demonstrated that a substantial miscarriage of justice occurred when the inadmissible ‘cute photo’ evidence was led at the second trial. This question essentially involves this Court evaluating ‘on the one hand the [respondent’s] contention that, excluding the inadmissible material, whether the outcome at trial would nonetheless have been the same; and, on the other hand, the applicant’s response that, had there been no error, the jury may have entertained a doubt as to guilt’.[21] This approach derives from the wording of s 276(1) of the CPA and statements made by the majority in Baini v The Queen.[22]
[21]Saricayir v The Queen [2018] VSCA 319, [59] (Kaye, T Forrest and Ashley JJA) (‘Saricayir’).
[22](2012) 246 CLR 469 (‘Baini’).
Section 276 of the CPA reads:
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
In Baini the majority made the following statements:[23]
[23]Set out in Saricayir [2018] VSCA 319, [59].
Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms. As s 276(1)(b) contemplates, it will be possible sometimes to describe the cause of complaint as ‘an error or an irregularity in, or in relation to, the trial’. That is a description which is apt to encompass any departure from trial according to law. But as s 276(1)(c) shows by its reference to ‘any other reason’ (emphasis added), the description contemplated in para (b) is not exhaustive. When read together, paras (b) and (c) encompass any and every form of substantial miscarriage of justice. Yet the ultimate question will remain the same: ‘has there been a substantial miscarriage of justice?’
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Second, there is the case whether there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a ‘substantial miscarriage of justice ultimately requires a judgment to be made.[24]
…
[T]he possibility that the Court of Appeal may conclude that no ‘substantial miscarriage of justice’ occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been ‘a substantial miscarriage of justice’. The Court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by [ss] 276(1)(b) and (c).
If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant’s conviction was inevitable.[25]
[T]he inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by s 276(1)(a).) If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with ‘the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record’.[26] That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.
This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression ‘substantial miscarriage of justice’, not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as ‘serious’ departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a ‘substantial miscarriage of justice’ if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.[27]
[24]Baini (2012) 246 CLR 469, 479 [25]–[26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (emphasis in original) (citations omitted).
[25]Ibid 480–1 [30]–[31] (emphasis in original).
[26]Fox v Percy (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ) (citations omitted).
[27]Baini (2012) 246 CLR 469, 481–2 [32]–[33] (emphasis in original) (citations omitted).
In this case, the battleground at trial was primarily a contest between the complainant’s accusations and the applicant’s denials of sexual interest in and sexual contact with the complainant. If the prosecution were able to demonstrate that the applicant had this sexual interest then it was a short step to conviction on all charges. The primary evidence of that sexual interest (leaving aside the accusations themselves) came from WM. Most of the evidence of sexual interest was constituted by the ‘five or six’ text messages in which WM said the applicant expressed a desire to touch the complainant and have sex with her. As we have noted, whether these text messages ever existed was strongly contested at trial.
We cannot exclude in our deliberations the possibility that the request for a ‘cute photo’, unrefuted as it was, enabled the jury more readily to accept that the sexualised text messages in fact existed. In the first trial the ‘cute photo’ evidence was studiously avoided by all participants after the witness volunteered it, but this was not the case in the second trial. In his final address, the prosecutor said this:
But there is one piece of evidence in this trial that supports what she says Ben Hill did to her that doesn’t come from [WG], and that’s the text messages that [WM] told you about receiving from the accused man.
Now, she’s going to be criticised that this was in her third statement, and not in her first two, and that’s a fair criticism. But note this. She’s never caught out in some sort of ‘ah-ha’ moment. [WM] herself comes forward to the police and says, ‘I’ve remembered more, and I want to tell you about it.’ Criticise her if you like, but no barrister discovered that. She came forward with the information.
And that information was this … ‘He used to ask for photos, or a cute photo of her, and also asked if he could do things to her, if he could touch her or have sex with her. He did this on a few occasions, probably five or six, probably over a month. I can’t recall all the exact words, but I think that’s what he said exactly. He asked to have sex with her.’
She’s asked about her response. ‘I ignored it.’ Do you remember her [evidence] that she thought this was a roleplaying fantasy.
Now bear in mind again that you, I am sure, would have reacted differently to the way [WM] did, and defence attacked her in the pre-recording of her evidence. I suspect they’ll attack her in their argument today. But you’re not weighing up the reactions of [WM], [PJ], [BT], or anybody else. You’re weighing up the account given by [WG]. And if what [WM] says about these text messages is right, then that shows that the accused Ben Hill had a sexual interest in [WG]. And if you accept that, it is all the more likely that he behaved in just the way [WG] described. That’s why that evidence is in front of you. It is an independent way of supporting what [WG] says he did to her.[28]
[28]Emphasis added.
Thus the prosecutor, having introduced evidence that had been ruled inadmissible, then sought to rely upon it, together with the admissible evidence of sexualised texting, to demonstrate the applicant’s sexual interest in the complainant.
The trial judge in the second trial also referred to the ‘cute photo’ evidence in his charge to the jury. The judge when he summarised the prosecution case said,
In very brief terms [s]he said he was showing an interest in [WG] and he asked her for photos or a cute photo of her and he asked if he could do things to her, if he could touch her or have sex with her. He did that probably five or six times over a month. She said she ignored it, so he has a sexual interest in [WG] and he was willing to act on that. And that makes it, if you find that he had that interest and willingness — that makes it, in [the prosecutor’s] words, ever more likely that he committed the very offences that he is before you for.
The central place that the existence and content of the sexualised text messages had in the trial can be understood by reciting the following direction of law from his Honour:
But if you do find that Mr Hill, by reason of those text messages, had a sexual interest in the complainant and a willingness to act on it, then you can use that evidence to find that it is more likely that he committed the sexual penetration and the touching of the vagina.
We should add that, immediately after this direction, the judge correctly directed the jury that, if they accepted the evidence of WM, it was only one part of the prosecution case, and that it was not enough to find mere sexual interest — the jury must be satisfied beyond reasonable doubt of the elements of the charge they were considering.
It follows from the discussion above that we are not satisfied that the error did not make a difference to the outcome of the trial. There is some force to the respondent’s contention that the ‘cute photo’ evidence was only a small part of the prosecution case and would have been overwhelmed by WM’s other, admissible evidence of sexual interest. However, for the reasons outlined, we are of the view that the ‘cute photo’ evidence may have made that other evidence of sexual interest more likely to be accepted by the jury, and thus convictions more likely. In a trial that was relatively evenly balanced (as demonstrated by the ‘hung jury’ in the first trial, even with the impugned evidence before it), we cannot conclude that, absent the ‘cute photo’ evidence, the verdicts of guilty were inevitable. Applying the principles established in Baini:
(i) we are satisfied there has been an error or an irregularity in the trial; and
(j) we cannot be satisfied that the error did not make a difference to the outcome of the trial.
Ground 9 has been established in part and there has been a substantial miscarriage of justice.
Ground 10
Under ground 10, it is contended that the trial miscarried because, in providing to the jury the complete recording of the special hearing during their deliberations, it could not be ruled out that they did not watch the portion of that recording containing the judge’s questioning of the complainant and her answers to determine her competence to give sworn evidence. This, the applicant submits, is a departure from the evidentiary rules relating to determinations of witness competency, and amounts to a substantial miscarriage of justice.
Sub-sections 189(1) and (4) of the Evidence Act jointly provide that a jury should not be present at a hearing to determine a person’s competence to give evidence unless the court so orders. Sub-section 189(8) prohibits any evidence led in the course of such a hearing from being adduced in the trial.
It will be recalled that the jury during their deliberations requested to watch the complainant’s evidence again,[29] and were provided with the recording of the special hearing before Judge Marich at which the complainant adopted her VARE as true and correct and was cross-examined. As well as certain ‘introductory matters’ designed to put the complainant at ease, this recording also included the judge’s explanation to the complainant of the requirement to tell the truth in court; and her Honour’s questioning of the complainant, using examples, to ascertain her understanding of the difference between truth and lies, and of her duty to tell the truth when answering questions in court. It did not contain the judge’s declaration, based on this evidence, that the complainant was competent to give sworn evidence.
[29]See above [27].
When the jury requested the recording, the fact that it was unedited, and contained material that had not been before the jury during the trial, was discussed between counsel and the judge. Upon being informed that the disc would need to be conveyed to Melbourne and back in order to be edited, it was agreed between the judge and the parties that the unedited disc would be provided, cued to begin playing at the point of the complainant’s affirmation, and that his Honour would direct the jury as to what preceded that point and that they should not rewind the footage to watch that portion. Though defence counsel had expressed concern that the disc contained ‘material that hasn’t gone before the jury’, he acknowledged that it was ‘only material that goes towards the witness being comfortable’, and ultimately did not object to the proposed course of action.
The judge directed the jury accordingly:
Now, there is no difficulty with providing you with the interview that [WG] did with the police, that’s been called the VARE, the video-audio recording of evidence. So, that can be provided to you. Then the other interview or evidence that she gave was the evidence she gave before the judge in the previous [trial] with different lawyers.
… Now, the disc that we have for that, what happens in these matters as you could understand is that a judge spends some time just settling things in and making sure everyone understands everything about what’s going on …
But the judge sets that all up and that is on this disc that you will be provided but it’s not in evidence in this case. We will put the disc at the point where it starts … So, the previous parts of it are simply the judge saying things like, ‘this is a pre-recording of [WG] on the trial of the accused Ben Hill, I am Judge Martine Marich. There may be a different judge and perhaps a different counsel, [at] the trial’, which there was. So, it’s just her recording it. That’s on this disc.
Quite often these things are not on that disc, they’re on another disc but they’re on this one but we didn’t make you go through listening to that. So, it’s set up, it will be set up for you where [WG] speaks and it starts with her being — going through that she’ll tell the truth and then the prosecutor saying, ‘do you remember making the video recording?’ and she said she did ‘and is that — what you said on that video true?’ and she said yes. So, that’s the prosecutor. Then the cross-examination by the then barrister … with the intermediary occasionally and the judge occasionally and you can see all that.
All right, so what we’re doing is not requiring you to sit here in court silently watching it. It’ll be provided to you so you can see it and deliberate together, talk, say what you want about it, play it again, fast forward it, replay it, that’s for you. But there is a portion at the start of this that was not played before you, it’s got nothing, it’s just the introductory starting, we didn’t waste your time with it and we would have to take a day or more to get it back to Melbourne to chop it off at this point.
So, the parties have agreed that you will have it but just watch, just watch where she’s being asked questions, got that? All right? Thank you.
In the discussion between the judge and both counsel preceding this direction, it was agreed that, while nothing would prevent the jury from rewinding the footage and watching that material not previously put before them, in both principle and in practice juries were to be trusted to handle evidence unsupervised, and to go over it as they see fit. Defence counsel noted, ‘The benefit of allowing the jury to access material in this way with a direction to watching it in a balanced way is they can stop … look at the bits they want to see.’
The applicant now contends that, despite his counsel’s acquiescence at trial, because it cannot be guaranteed that the jury did not view the whole of the recording including the material that was not evidence in the trial, s 189 of the Evidence Act has been contravened. It is argued that this departure from the statutory requirement caused the trial to miscarry as the material thus (potentially) impermissibly viewed by the jury drew ‘undue attention to the truthfulness of the complainant’ in a way that was highly prejudicial to the applicant in a case where the complainant’s credibility was crucial to the prosecution case.
The applicant pointed the Court to the case of Caine v The Queen,[30] in which it was held that a miscarriage of justice occurred because the trial judge’s finding that three child complainants of sexual assault were capable of understanding their duty to tell the truth in court was put before the jury.
[30](1993) 68 A Crim R 233 (‘Caine’).
Consideration
In Caine the Court of Criminal Appeal observed that, though a witness’s competence and their credibility are separate questions, for the judge and the jury to determine respectively, the questions are apt to be conflated. If the judge’s view of the witness’s understanding of the duty to tell the truth is put before the jury, there is a risk that it will be used by them in their assessment of the witness’s credibility. In Caine such an outcome was said to undermine the purpose of s 23(2) of the previous Evidence Act, which in combination, as was submitted by the applicant, had an identical effect to ss 189(1), (4) and (8) of the current Act:
The determination of a child’s competency involves a question as to the admissibility of that child’s evidence. The facts found and the decision to be reached must therefore plainly be matters for the judge alone. The determination of such questions must undoubtedly require the judge to ask questions of the child. In doing so by convention and common sense (if not by law) he is not to be bound by the ordinary rules of evidence. The discharge of this duty can in no way involve the jury … However, once the question of competency is resolved in favour of the admission of the child’s evidence the child’s credibility is for the jury and the jury alone. Its judgment on this issue is to be reached untrammelled by the judge’s opinion that the child ‘understands the duty of speaking the truth’. The understanding of such a duty may, strictly speaking, be a different question from that as to whether the child is in fact speaking the truth. But the two concepts are so interlinked and are so likely to be fused by the jury into the one proposition that it appears to us that, at least in this case, there was a very real risk that the jury’s deliberations were bedevilled by what we think was the aim of the legislature to eliminate by the introduction of sub-s [23](2).[31]
[31]Ibid 238–9 (Phillips CJ, Crockett and Vincent JJ).
The need to segregate evidence going to competence from that going to credibility was also emphasised by the High Court in Demirok v The Queen,[32] where Gibbs J said,
The question whether a witness is competent is solely for the judge to consider and there is no reason why the jury should be present when evidence is being given on that question. Evidence which is relevant solely to the question of competence should not be used by the jury for some other question, such as determining the credibility of the witness.[33]
[32](1977) 137 CLR 20.
[33]Ibid 30–1.
In the present case, while the judge directed the jury as to how to view the disc, namely, not to view the footage preceding the point to which the disc had been cued, no direction was given as to how to use the evidence contained in that preceding footage. Given there was nothing to prevent the jury from viewing the earlier portion of the tape, and it cannot be known whether or not they did, there is a live possibility that the jury used the evidence going to the complainant’s competence in their assessment of the complainant’s credibility, in the same way, the applicant submitted, that the Court in Caine found led to a substantial miscarriage of justice.
In putting before the jury the recording of the judge’s questioning of the complainant, aimed at ascertaining her understanding of the difference between truth and lies and her duty to tell the truth in court, there was a contravention of s 189(8) of the Evidence Act. It was evidence given in a hearing to determine a preliminary question (as defined in s 189(1)) at which the jury was not present, and thus not to be adduced in the trial. Though it cannot be known whether the jury actually viewed the impugned material, it should be assumed that they did — the material was made accessible to them, and there was nothing to prevent them from viewing it. In that sense, it was before them, whether or not they actually viewed it. Insofar as there has been a breach of the statutory prohibition, the circumstances are analogous to those in Caine.
Whether that departure from the statutory rule has similarly produced a miscarriage of justice, however, is another question. The respondent correctly submitted that the Court’s observations in Caine on the danger of a jury conflating the question of competency with the question of credibility were inspired by materially different circumstances to those in the present case. In Caine, the jury were present for the judge’s questioning of the three child witnesses in order to determine their competence to give sworn evidence, but what was material to the miscarriage of justice was the combination of the nature of the judge’s questioning, which (as well as apparently applying the wrong test of competence) was inadequate to establish competency; and his remarks during the subsequent cross-examination of each child, including repeated reminders that they had agreed to tell the truth. This, it was said, may have led the jury to believe that the Court itself had previously deemed them to be truthful, rather than merely capable of understanding the concept.[34] It was not the jury’s exposure to the evidence upon which the judge formed his view that the witnesses were competent to tell the truth (though this breached the relevant statutory provision), but his implying in the jury’s presence that he had found they would tell the truth that the Court considered likely to affect their assessment of those witnesses’ credibility. It will be recalled that the Court expressed a concern that ‘[the jury’s] judgment on [the] issue [of credibility] is to be reached untrammelled by the judge’s opinion that the child understands the duty of speaking the truth’.[35]
[34]Caine (1993) 68 A Crim R 233, 242.
[35]Ibid 239 (emphasis added).
The impugned portion of the special hearing recording in this case, on the other hand, included no such expression by Judge Marich or other indication of her Honour’s own opinion as to the complainant’s capacity or likelihood to tell the truth. It consisted of the judge’s questioning as to the complainant’s understanding of rules, the concept of truthfulness and her duty to tell the truth; her Honour’s declaration that she found the complainant competent to give sworn evidence was omitted from the recording and the transcript of the hearing provided to the jury.
The applicant seeks to extend the principle in Caine in arguing that the questions and answers in themselves ‘drew attention to the purported truthfulness of the complainant in a way that was markedly different from any other witness’, and such that it might influence the jury to more readily believe her, thereby improperly using evidence going to competence in the assessment of credibility. We do not accept this. Any reasonably sensible person would recognise the purpose of such a procedure in respect of very young witnesses and, though they may not have turned their mind to the subject previously, would be unsurprised to observe it, and likely to presume, correctly, that it is a standard procedure in such cases. Absent any view expressed by the judge as to the witness’s understanding of the Court’s expectation that they tell the truth, in those circumstances, it is unlikely to impact on a juror’s assessment of the likelihood that the witness has actually done so.
This is especially so in this case as the impugned material on the special hearing disc was in substance identical to material which had been put before the jury as part of the VARE, which also commenced with a series of questions testing (by asking her to provide examples) the complainant’s understanding of rules and the difference between truth and lies. Once the jury had been exposed to that footage (without objection from defence counsel) the special hearing material was unlikely to increase the prospect of the jury accepting the complainant’s evidence over and above the evidence properly available to them.
Given our conclusion on the ‘cute photo’ aspect of ground 9, it is unnecessary to determine whether the material put before the jury in the asserted breach of s 189 of the Evidence Act is productive of a substantial miscarriage of justice. However, we do note that the following:
·Defence counsel acquiesced to the proposal that the jury be supplied with the complete disc.
·It was logistically impractical for the jury to be supplied with an edited disc. The jury’s request to re-view the complainant’s evidence was made during jury deliberations in a circuit trial, so it was necessary for the disc to be sent from Geelong to Melbourne, edited there, and returned to Geelong, in order to be supplied to the jury. This circumstance doubtless influenced the judge and counsel to adopt the pragmatic course taken.
·In this country, juries are presumed to follow judicial directions.[36] The effect of the judge’s remarks, set out at [133] above, was to suggest to the jury that they watch only from where the disc was cued, at the start if the substantive special hearing evidence, and not to concern themselves with the preliminary matters earlier on the disc. We doubt that this suggestion was delivered with enough gravitas and/or force so as to constitute a curial direction.
·Even if the jury were to view the impugned earlier portion of the recording, dealing with the issue of competency, they would have seen no more than Judge Marich’s innocuous questions about whether the complainant could distinguish between truth and lies. Nearly identical questions were asked at the start of the VARE, which was already before the jury.
·Unlike in Caine, there was nothing on the disc of the judge’s ruling as to the competence of the complainant to give sworn evidence.
[36]Dupas v The Queen (2010) 241 CLR 237, 248–9 [27]–[29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Conclusion
Leave to appeal will be granted under ground 9 and the appeal will be allowed. We shall order a retrial on all charges.
Given our decision as to the appeal against conviction, it is unnecessary to consider the application for leave to appeal against sentence.
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