Hudson (a pseudonym) v The Queen
[2017] VSCA 122
•29 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0136
| ARTHUR HUDSON (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 May 2017 |
| DATE OF JUDGMENT: | 29 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 122 |
| JUDGMENT APPEALED FROM: | DPP v [Hudson] (Unreported, County Court of Victoria, Judge Chettle, 21 June 2016) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Unreliable evidence – Evidence the reliability of which may be affected by ill-health or drug issues – Whether evidence of complainant was evidence of a kind that may be unreliable – Whether judge should have given direction that complainant’s evidence was evidence of a kind that may be unreliable – Jury Directions Act 2015, ss 12, 14, 31 and 32 – Appeal against conviction of rape allowed.
CRIMINAL LAW – Appeal – Conviction – Rape – Whether guilty verdict was unreasonable or could not be supported by the evidence – Verdict not unreasonable or unsupportable by the evidence.
CRIMINAL LAW – Appeal – Sentence – Indecent assault (3 charges) – Total effective sentence of 3 years and 6 months – Earlier sentence of 24 months’ imprisonment with 15 months wholly suspended for 3 other offences of indecent assault – Plea of guilty – Good prospects of rehabilitation – Delay – Totality – Whether sentence infringed totality principle in light of earlier sentence – Not reasonably arguable that totality principle infringed – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Ms A Burchill | Galbally & O’Bryan |
| For the Respondent | Mr D A Trapnell QC with Mr M D Stanton | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA
KAYE JA
BEACH JA:
On 27 April 2016, following a four-day trial in the County Court, the applicant was convicted of one charge of rape. The applicant had previously (on 10 April 2015) pleaded guilty to three charges of indecent assault on a separate indictment. On 21 June 2016, following a plea hearing held in respect of all four charges, the applicant was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment No E13123877 (Trial) | ||||
| 1 | Rape [Crimes Act 1958 (Vic) s 45] | 10 years’ imprisonment | 6 years’ imprisonment | |
| Indictment No C1510133 (Guilty plea) | ||||
| 1 | Indecent assault [Crimes Act 1958 (Vic) s 44] | 5 years’ imprisonment | 1 year’s imprisonment | 6 months |
| 2 | Indecent assault [Crimes Act 1958 (Vic) s 39] | 10 years’ imprisonment | 2 years’ imprisonment | 12 months |
| 3 | Indecent assault [Crimes Act 1958 (Vic) s 39] | 10 years’ imprisonment | 2 years’ imprisonment | Base |
| Cumulation between indictments | 2 years and 6 months on Indictment C1510133 upon the sentence on Indictment E13123877 | |||
| Total Effective Sentence on both indictments | 8 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 5 years and 9 months’ imprisonment | |||
| Pre-sentence Detention Declared: | 55 days | |||
| Other orders: Sentenced as a serious sexual offender in respect of all charges | ||||
The applicant seeks leave to appeal against his conviction for rape, and also seeks leave to appeal against the sentence imposed upon him. The applicant’s proposed grounds of appeal against conviction are:
1.A substantial miscarriage of justice occurred as a result of the trial judge’s:
(a)failure to direct the jury, under s 32 of the Jury Directions Act 2015 (Vic) that the complainant’s evidence was of a kind that may have made it unreliable;
(b)ruling that, ‘unless there’s a good reason to give that direction it shouldn’t be given’; and
(c)failure to warn the jury in terms consistent with s 32(3) of the Jury Directions Act 2015 (Vic) regarding the complainant’s evidence.
2.The guilty verdict returned by the jury on the charge of rape is unreasonable or unable to be supported by the evidence.
PARTICULARS
(a)CK’s account that he was raped by Father Rapson at or near the same time as he was raped by the applicant in almost identical circumstances beggars belief;
(b)the claim that CK subjected himself to the events that attended his alleged rape by the applicant, after his rape by Father RQ, is inherently implausible;
(c)the unreliability of CK and his evidence;
(d)the inherently weak nature of the complaint evidence; and
(e)the forensic disadvantage suffered by the applicant.
The applicant’s proposed grounds of appeal against the sentence imposed upon him are:
1.The learned sentencing judge erred, in sentencing the applicant for his offending on complainants D, AD and CK by:
(a)failing properly or at all to synthesise the sentence earlier imposed upon the applicant in 2011; and
(b) as a result of (a), offending the principle of totality.
2.The individual sentences imposed, the orders for cumulation and resultant total effective sentence, and non-parole period, are manifestly excessive.
CONVICTION
The Crown case
The applicant was a priest teaching at XY School, in 1988. In 1988, the applicant was aged 32 years. The complainant in respect of the rape charge, CK, came to XY School in 1988 as a boarding student, and slept in a dormitory that was close to the applicant’s office. In 1988, CK was a year 7 student.
The Crown case relied primarily on the evidence of CK. At trial, the Crown alleged that in the middle of the first half of the year (1988), the applicant invited CK to come to his office after lights out to play computer games. That evening, CK waited half an hour after lights out and, at 10:00 pm, made his way to the applicant’s office. CK knocked on the applicant’s door and went in. The applicant was sitting at his desk at the computer. CK closed the door and sat down at the computer and started playing space invaders. CK played Space Invaders for about 15 minutes, while the applicant sat beside him. There was soft drink on the desk (Fanta). The applicant asked CK whether he wanted to have a drink of Fanta. CK replied that he would love one, and then drank it. CK’s evidence at trial as to what happened next was ‘I must have got dizzy and I woke up on the floor … and he was molesting me’.
The Crown case (in conformity with CK’s evidence) was that when CK woke up on the floor, the applicant had him pinned to the ground and the applicant ‘was moving backwards and forwards with his penis in my backside’. CK described being in the foetal position on his left side, with his pants down to his knees, and with the applicant having one hand on CK’s head and one hand on his right leg. The force being used by the applicant was described by CK as ‘strong’ while the applicant was moving ‘backwards and forwards in me’.
CK described being in excruciating pain in his backside, and telling the applicant to stop. CK felt the applicant ejaculate, and then the applicant said ‘Get out of my sight. You disgust me’. CK left the applicant’s office, went to his locker, grabbed some cigarettes, and hid on the roof of the school for a couple of hours smoking cigarettes.
Some weeks later, the applicant asked CK to again come to his office to play computer games. CK refused.
The trial
At trial, the Crown called CK and four other witnesses: CK’s mother, BK; CK’s grandfather, FD; and two police officers, Detective Sergeant MN and Detective Acting Senior Sergeant BC. The applicant did not give evidence and no other evidence was called on his behalf.
CK gave evidence that he was raped by the applicant in the circumstances we have already described. He said that the applicant’s office was 15 to 20 metres from the door of the dormitory in which he, and 30 or 40 boys in total, slept. He also gave evidence that directly opposite the door of the applicant’s office were toilets that students could come and go freely from.
In cross-examination, CK said that when he woke up and experienced the excruciating pain in his backside, he screamed. He said that he screamed for the applicant to stop and screamed for help.
CK also gave evidence of having behavioural issues in 1988 that resulted in him being expelled from the school. In cross-examination he agreed that he had trouble in his primary schooling and that he had behavioural issues at that time. CK also gave evidence of having been on an antipsychotic medication (Mellaril); of suffering from frontal lobe epilepsy and of abusing alcohol and drugs. CK admitted to having smoked a lot of marijuana and having had some speed and ecstasy, and also having taken Valium, Serepax and painkillers at various times. CK admitted in cross-examination to subsequently having developed symptoms of schizophrenia, and suffering from a drug-induced psychosis where he would hear voices and talk to people who were not there. CK gave evidence that he was ultimately diagnosed and medicated for those problems, and that he remained on medication at the time of trial. We will return to this evidence in more detail when considering the applicant’s proposed grounds of appeal.
CK was cross-examined about an account he had given of being raped at the school by another teacher, Father RQ, prior to the rape he alleged against the applicant. It was put to CK that he had originally described the circumstances of being raped by Father RQ in very similar circumstances to those described by him in respect of the applicant. Specifically, CK had previously alleged that he had been raped in Father RQ’s office in the following circumstances. Father RQ asked CK to attend his office after lights out. CK attended Father RQ’s office at 10.00 pm. Upon entering the office, Father RQ asked him whether he wanted to play Space Invaders or Pac-Man. CK chose Pac-Man, and then played that game for around 20 minutes or so before being offered a soft drink. At trial, CK said the soft drink was lemonade, but it was put to him that he had previously said it was Fanta. CK then agreed with his previous recollection that he drank the soft drink straight down; he passed out or fell asleep; he woke up in the foetal position; he was on the floor right next to the computer desk, lying on his left side; he had a large amount of pain in his bottom; the priest was over him and had his penis in CK’s bottom, and the priest was moving backwards and forwards; he was in agony and screaming in pain and telling the priest to stop; he could not move because the priest was on top of him; he felt the priest ejaculate inside his bottom and the priest then climbed off him; he (CK) got up and ran straight out of the office, while the priest was yelling at him to come back and tried to grab him as he ran away. Again, we will return to this evidence in more detail when we come to consider the applicant’s proposed grounds of appeal.
Ultimately, it was put to CK in cross-examination that it was at least possible that the rape he described as having been committed by the applicant was a rape that was in fact committed by Father RQ. CK admitted that the rapes ‘happened the same way’, but rejected the suggestion that the applicant never in fact raped him.
In re-examination, the judge, having received a question from the jury, asked the following:
[CK], after the experience you had with [RQ]?---Yes.
When [the applicant] asked you to come around and play computers and then raped you, were you scared to go to [the applicant] when he asked you about — to go to play computers as well? And the same thing?---No. I was innocent.
The same thing — he — did it cross your mind it was the same thing as what [RQ] had said to you, 10 o’clock at night?---No.
All right. Were you afraid or hesitant about [the applicant]?---No.
CK’s mother, BK, gave evidence. While we will refer to this evidence in more detail below, in summary, BK gave evidence that CK had some learning difficulties with reading and writing, and struggled with his concentration at primary school. CK was diagnosed with right temporal lobe epilepsy. For secondary school, the family decided boarding school would be a ‘great option’ for him.
CK’s grandfather, FD, gave evidence that CK told him that he had been raped twice. FD’s evidence was that CK made this disclosure when CK was 13 or 14 and after he had left the school. FD gave evidence that if he was told the names of the people who raped CK then he had forgotten their names.
Detective Sergeant MN gave evidence that he took a statement from CK in August 2011. CK gave a description of the applicant that ‘he looked a bit like Jesus’. However, Detective MN accepted that a photograph of the applicant in the 1988 school year book did not bear any real resemblance to Jesus.
Detective Acting Senior Sergeant BC was the informant. Detective BC interviewed the applicant in a record of interview conducted in August 2012. In the record of interview, the applicant admitted to ‘vaguely’ recalling CK, but denied as ‘absolute rubbish’ CK’s allegations. Detective BC also gave evidence that in the 1988 and earlier school yearbooks that he obtained, the applicant ‘never looked like Jesus’.
Ground 1: the failure to give an unreliable witness direction
Ground 1 concerns the refusal by the judge, when requested by counsel for the applicant, to give a direction to the jury, pursuant to s 14 and s 32 of the Jury Directions Act 2015 (‘the Act’), that the evidence of CK might be unreliable, so that the jury need exercise caution in determining whether to accept that evidence and the weight to be given to it. It is submitted by the applicant that the judge was obliged to give such a direction as to the potential unreliability of CK’s evidence, based on a number of circumstances, including the behavioural difficulties of CK when he was a child, his evidence that he was drugged at the time at which he alleges that he was raped by the applicant, CK’s drug and alcohol abuse, his poor mental health, the effect of vivid nightmares experienced by him, and the lapse of time.
Evidence relevant to ground 1
In support of the contention, that such a direction should have been given, the applicant relied at trial, and on this application, principally on the evidence of CK in cross-examination.
In that evidence, CK agreed that, during his time at XY School, he actively tried to get himself expelled, and that he embarked on a dedicated campaign to achieve that result. He agreed that he deliberately did things to get into trouble, including fighting, stealing, missing class, getting caught smoking and telling lies. Before attending the school, he had already experienced behavioural issues, in respect of which he was treated by a medical practitioner, Dr RR, and was also assisted by a welfare officer at the PP Family Care Centre. CK agreed that his parents had difficulty managing him at home, so much so that he was then on anti-psychotic medication, Mellaril.
CK agreed that he also had a number of ‘issues’ going into his adulthood. In particular, he was diagnosed with frontal lobe epilepsy, as a result of which he tended to get worked up quite easily. During his teenage years, he commenced abusing marijuana and alcohol. He also had used speed (amphetamine) and ecstasy when he was 23 years of age. He had smoked a lot of marijuana during his adulthood, and he also had doctor-shopped to obtain prescription medications Valium and Serepax. As a result, CK had suffered drug induced psychosis. In that state, he had experienced visual and auditory hallucinations. Eventually he was diagnosed at the age of 26 to suffer from schizophrenia, and he was medicated for it. He said that he was still on medication at the time of the trial.
Later in cross-examination, CK said that he was prompted to go to the police, in 2011, because he was experiencing nightmares. He agreed that he had suffered nightmares when he was younger, after he had been to XY School. He again experienced the same nightmares in his 30s, about being sexually assaulted by religious brothers. The content of the nightmares was exactly the same as what CK recalled had happened to him in 1988. They were very vivid and appeared real to him. The nightmares got worse in the period leading to when he ultimately went to the police in 2011. CK said that he had trouble waking up from the nightmares, and that he would experience them repeatedly. In addition, the frequency of the nightmares increased. He said that although he had the same nightmares when he was younger, he had managed to put them out of his mind for a time, and then they came back to haunt him when he got older.
At the conclusion of his cross-examination, CK agreed that he had suffered from schizophrenia, and that he used to hallucinate, which, at times, made him believe things that were not real. He again agreed that he had had vivid life-like nightmares about the two rapes that he had experienced at XY School. He did not accept the possibility (put to him by the cross-examiner) that his mind might have been playing tricks on him in relation to his memory, by making him believe something that was not real. CK rejected the possibility (put by counsel) that the first priest might have raped him on more than one occasion, and he also rejected the possibility (put in cross-examination) that when he was describing the rape upon him by the applicant, he was really describing a rape that had been perpetrated by the first priest.
In re-examination, CK said that he first started using marijuana when he was about 14 years of age. At that time he had left school. He agreed that it had become a problem for him, so much so that he had attended a rehabilitation clinic a few times, because the habit had got out of control. He also agreed that he started using alcohol at the age of 14 years, when he had commenced working, and his boss would buy a slab of beer for the workers. CK said that he had drunk a lot during that time, but that he had ceased drinking when he was 31 years of age. He said that he had turned to drink to ‘drown (his) sorrows’. He said that he was originally prescribed Valium for his schizophrenia and Serepax to help him sleep, but he had taken those medications when he was abusing speed and ecstasy, because the Valium overcame the cramps he suffered when he used those drugs.
CK again reiterated that he had suffered a drug induced psychosis, which had caused him to experience hallucinations, in which he heard voices and had conversations with people who were not there. He said that those symptoms had disappeared, some five years previously (in 2011), when he stopped smoking marijuana. CK stated that before he suffered the psychotic symptoms when he was 26 years of age, he had not previously experienced hallucinations of hearing voices or having conversations with non-existent persons. CK also stated that he had first suffered nightmares when he was 12 years of age. He said there was no period in his life when they were not a problem for him.
The other evidence, relevant to ground 1 of the application, was given by CK’s mother, BK. In her evidence, she said that during CK’s primary school years, he had learning difficulties with reading and writing, but he was very good at mathematics. She said that CK struggled with his concentration, and ‘… he was a little bit of a clown I suppose’. The school asked BK to get CK some help, and so CK was referred to Dr RR, who was a paediatrician, and to PP Family Care, which assisted CK with his learning difficulties. After Dr RR carried out some tests, he discovered that CK had right temporal lobe epilepsy, and he was prescribed an anti-epileptic drug.
Apart from that evidence, BK did not give any further evidence about the matters relied on by the applicant, and she was not cross-examined in relation to them. CK’s grandfather, FD, also gave evidence in the trial, but he did not give any evidence, nor was he cross-examined, about any of the matters that are relevant to ground 1 of the application.
Trial judge’s ruling
At the trial, counsel for the applicant submitted that, based on that evidence, the judge should give a direction to the jury, pursuant to s 32 of the Act, that the evidence of CK might be unreliable. In particular, counsel relied on CK’s evidence as to his mental illness, and his nightmares, and also on the effect of the effluxion of time between the events described by the applicant in the trial. The submissions made by counsel for the applicant were brief, due, it would seem, to the intervention of the judge, who promptly gave a ruling that he would not give such a direction to the jury. His Honour stated:
Now, I’ll be putting that that’s your case but he does not in any way - I mean, there’s no - he doesn’t meet, in my view, the categories that make his evidence unreliable and the authorities make it clear that unless there’s a good reason to give that direction it shouldn’t be given. It’s just really going to his credit.
You’re seeking - this obviously is a direction which is used or relied upon to undermine the credibility of the witness. It should be given in certain circumstances. I’m not of the view that's been established here having read those Bench notes in the section which sets out the categories.[1] It’s not exhaustive. It’s inclusory. It doesn't fit any of the categories in my view that appear in the notes.
[DEFENCE COUNSEL]: Well, I’ve made my submission, Your Honour.
HIS HONOUR: Yes, you have.
[DEFENCE COUNSEL]: I’m only going – I’m only going to repeat myself.
HIS HONOUR: No, no. I’m really saying what I’m saying for the purposes of the transcript so that in any other - if in the remote possibility this ever gets anywhere in another place they will know the reason that I have made the ruling I have made.
[1]The Bench notes to which the judge referred were contained in the Victorian Criminal ChargeBook, published by the Judicial College of Victoria. Part 4.17 of the Charge Book contains Bench notes dealing with the topic of unreliable evidence.
Submissions on Ground 1
In argument, senior counsel for the applicant submitted that the ruling by the trial judge contained a number of errors. First, it was submitted, when addressing the ‘significant matters’ on which defence counsel had relied, the judge found that none of them fell into the categories of evidence which were prescribed by the Act (presumably by s 31 of the Act), or which were contained in the Bench notes. However, as noted by the judge himself, the definition of ‘evidence of a kind that may be unreliable’, in s 31 of the Act, is inclusive. It has been long recognised, in the context of s 165 of the Evidence Act 2008 (which, relevantly, is similar to s 31), that evidence, which may not come within any of the categories listed in that section, nevertheless may be of a kind that is unreliable, requiring the judge to give the warning prescribed by s 165(2) of that Act. Additionally, while the Bench notes contain a list of other categories not listed in s 31 (referred to in the Bench notes as ‘Non-Listed Categories’), that list is, likewise, not exhaustive.
Secondly, it was submitted, counsel at the trial having made the request for the direction at trial, the judge was required, by s 14 of the Act, to give the direction, unless there were good grounds for not doing so. Instead, the judge effectively reversed that process, by proceeding from the premise that the direction should not be given ‘unless there’s a good reason to give that direction’. Thirdly, it was submitted that the judge erred by twice referring to the direction sought as one attaching to CK’s credibility and the jury’s assessment of his credibility. However, the application for the direction was addressed to the jury’s assessment of CK’s reliability.
Counsel for the applicant further submitted that the circumstances of this case were such as to compel the conclusion that the judge should have given the direction sought by counsel. The application for the direction was made in the context of a case in which CK had given evidence that the accused had raped him in almost exactly the same circumstances in which he had been previously raped by the first priest. At an early stage, the jury had asked two questions relating to that matter, namely, as to why the details of the two incidents were so similar, and as to whether CK had been ‘getting things mixed up between cases’. In those circumstances, it was submitted, the matters pertaining to CK’s behavioural problems, the fact that (if CK’s evidence was accepted) he was drug affected at the time he says that he was raped by the applicant, and his subsequent alcohol and drug abuse and mental ill-health, together with the effluxion of time, were central to an assessment by the jury as to whether CK’s evidence was reliable. Accordingly, it was submitted that it was necessary for the judge to give an appropriate direction to the jury, as to the potential unreliability of the evidence of CK due to those factors, and as to the need for the jury to take particular care in assessing it. In support of that submission, counsel relied on the decisions of this Court in Allen v The Queen[2] and Boyer v The Queen.[3]
[2](2013) 39 VR 629 (‘Allen’).
[3][2015] VSCA 242 (‘Boyer’).
It was further submitted, on behalf of the applicant, that although counsel for the applicant at trial had not specifically relied on CK’s evidence of his drugged state at the time of the alleged rape, that fact was relevant and should have been included in the factors affecting CK’s reliability. In that respect, it was pointed out that, in three parts of her final address, counsel at trial had relied on the fact that CK was drugged at the time of the alleged rape as one of the factors which the jury should take into account in assessing the reliability of CK’s evidence.
In response, senior counsel for the respondent submitted that there was no basis upon which the judge was required to give a direction pursuant to s 14 of the Act. In particular, it was noted that the matters relating to the applicant’s ill-health had all taken place after the alleged offending. No evidence was adduced by either side as to how CK’s ill-health, or drug addiction, might have interfered with his capacity to accurately remember the offending. Thus, it was submitted, those matters did not bring the evidence of CK within paragraph (b) of the specific categories of unreliable evidence referred to in s 31 of the Act. Counsel submitted that the decisions of this Court in Allen and Boyer should be distinguished, because in each of those cases the complainant was significantly cognitively impaired at the time of the alleged offending, and there was evidence about the nature and extent of that impairment. On the other hand, in this case, it was submitted, it is significant that CK’s drug addiction problems, and his mental health issues, post-dated the offending, and no evidence had been adduced as to the potential effect of those circumstances on the capacity of CK to recollect accurately the circumstances in which he alleged that the applicant raped him.
Counsel further submitted that all of the factors, now relied on by the applicant, were fully exposed to the jury, in cross-examination, in final address, and by the judge in his final charge to the jury. They were each matters for the jury to evaluate. Counsel submitted that the jury, from its own knowledge and experience, was well capable of fully evaluating and appreciating the potential impact that those matters might have had on the accuracy of the recollection of CK of the event described by him in his evidence.
In that connection, counsel relied on the decisions of this Court in R v Maple,[4] Scannell v The Queen[5] and Young & Ors v The Queen,[6] in support of the proposition that a judge is only required to give such a direction where it might be apparent that the jury, from its own knowledge and experience, might not be capable of properly evaluating and appreciating the impact of such circumstances on the reliability of the evidence. In the present case, it was not necessary for the judge to give a direction to the jury in relation to its evaluation of the evidence of CK. In particular, the questions asked by the jury in the course of the case demonstrated that the jury was fully conscious of the potential impact of the matters, now relied on by the applicant, on the reliability of the evidence given by CK. In those circumstances, it was submitted, it is clear that the judge considered that there was good reason not to give the direction that was requested.
[4][1999] VSCA 52 [15] (Tadgell JA) (‘Maple’).
[5][2014] VSCA 330 [15]–[17] (Priest JA) (‘Scannell’).
[6][2015] VSCA 265 [69] (Osborn, Beach and McLeish JJA) (‘Young’).
The Jury Directions Act — unreliability directions
Section 12 of the Act provides that, after the close of all evidence, each side must request the trial judge to give, or not give, particular directions in respect of the matters in issue, and the evidence in the trial relevant to those matters. Section 14(1) provides that the trial judge must give a requested direction unless there are good reasons for not doing so. Section 32(1) provides that the prosecution or defence may request, under s 12, that the judge direct the jury on evidence ‘of a kind that may be unreliable’. Section 32(3) specifies the content of the particular direction that must be given by the judge.
Section 31 defines ‘evidence of a kind that may be reliable’ as follows:
31 Definition
In this Division—
evidence of a kind that may be unreliable includes—
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies; and
(b)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; and
(c)evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial; and
(d) evidence given by a witness who is a prison informer; and
(e)oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused.
It might be noted that s 31 contains five of the seven kinds of evidence that might be unreliable that were defined in s 165(1) of the Evidence Act 2008 before its amendment in 2015.[7] Section 36 deals separately with the direction that is required to be given in relation to identification evidence.[8] Like s 165, the definition of ‘evidence of a kind that may be unreliable’, in s 31, is inclusive, and not exclusive. It is trite, and not in issue, that, in a particular case, a circumstance, or combination of circumstances, that does not fall within any of the particular categories specified in s 31, may nevertheless be such as to produce the conclusion that evidence, adduced in a trial, is ‘of a kind that may be unreliable’, with the consequence that a judge, on request, must give a direction in relation to that evidence under s 32 of the Act.[9]
[7]See s 75(1) of the Jury Directions Act 2015.
[8]Cf s 165(1)(b) of the Evidence Act 2008.
[9]See, e.g., R v Baartman [2000] NSWCCA 298 [61] (Kirby J) (‘Baartman’); Cioban v R (2003) 139 A Crim R 265, 275 [52] (Mason P); RRS v R (2013) 231 A Crim R 168, 181 [83] (Hall J); Scannell [2014] VSCA 330 [15]; Young [2015] VSCA 265 [69].
Analysis: ground 1
The starting point, for a consideration of ground 1, involves an analysis of the reasons given by the judge in ruling not to give the direction to the jury that was requested by counsel for the applicant. In considering that issue, we are conscious that the ruling was given by the judge ex tempore in the course of the submissions made on behalf of the applicant. Nevertheless, as the judge made clear in discussion with counsel, he intended that passage in the transcript to contain his reasons for ruling against the application.
The reasons contained in the ruling are not entirely clear. However it would seem that the principal reason given by the judge, for rejecting the application for the direction, was that the circumstances did not fit within any of the categories prescribed in the definition of ‘evidence of a kind that may be unreliable’ in s 31 of the Act, or any of the non-listed categories in the Bench notes. The judge did acknowledge that those categories are not exhaustive, but inclusive. However, his Honour did not give any consideration to the question whether the combination of circumstances, relied on by the applicant, was sufficient to demonstrate that the evidence of CK was ‘of a kind that may be unreliable’. Indeed, it is not clear whether the judge gave consideration to the question whether the age of CK, and his health issues, were sufficient for the purposes of paragraph (b) of the definition contained in s 31 of the Act.
The provisions of the Act, which we have set out above, have the effect that, where counsel makes a request under s 12 for a direction stipulated in s 32 of the Act, the judge must first consider whether the evidence, that is the subject of the requested direction, is ‘evidence of a kind that may be unreliable’, either because it comes within one of the categories prescribed by s 31 of the Act, or because of a circumstance or circumstances which have the effect that the evidence, given by a particular witness, may be of a kind that may be unreliable. If the judge reaches such a conclusion, s 14(1) of the Act requires the judge to give the requested direction ‘unless there are good reasons for not doing so’. In the present case, it would seem, the judge conflated and inverted that process. Having concluded that the facts of the case did not come within any of the specific categories prescribed by s 31 or contained in the Bench notes, his Honour considered that he should not give the requested direction ‘unless there is a good reason to give that direction’. By approaching the matter in that way, the judge did not, as he was required to do, first consider whether the evidence, in respect of which the direction was requested, was evidence of a kind that may be unreliable, and, if so, whether there were otherwise good reasons why he should not give the requested direction.
For those reasons, we consider that the judge erred in his consideration, and determination, of the request made by counsel for the applicant, under s 12 of the Act, that a direction be given to the jury, under s 32 of the Act, in respect of the evidence of CK. Having reached that conclusion, the question, then, is whether, if the judge had approached the question in the correct way, he ought to have determined that such a direction should be given to the jury.
In support of his submission that such a direction should have been given by the trial judge in this case, senior counsel for the applicant contended that the issues pertaining to the age and ill-health of the applicant, and related matters, brought that evidence within the category of unreliable evidence defined in paragraph (b) of s 31 of the Act. However, counsel did not confine his submissions to that category of unreliability, but, rather, as his principal submission, contended that the combination of factors, relied on at trial and on this application, were such that the testimony of CK was potentially unreliable, notwithstanding that some of those factors might not come within any of the categories of unreliable evidence defined in s 31.
With the exception of the category of evidence specified in paragraph (b) of s 31, the other four categories, contained in the definition of unreliable evidence in s 31, specify evidence that can be clearly identified as such, and without any further evaluation, either by reference to the nature of that evidence (sub-paras (a) and (e)) or by reference to the identity or status of the person who gives the evidence (sub-paras (c) and (d)). At common law, in any case in which evidence of that description had been given (with the exception of hearsay evidence which ordinarily was inadmissible), judges had been required to give particular precautionary warnings to the jury concerning either the nature of the evidence or the nature of the person who gave the evidence. In particular, in the case of evidence given by a co-offender (or accomplice) or by a prison informer, the judge was required, in each instance, to give the jury a direction that the evidence may be unreliable, and that it would be dangerous to convict on it in the absence of corroborative evidence. In the case of oral admissions by an accused person, the judge was required to give a ‘Burns’[10] direction, that to rely on such evidence, the jury must first be satisfied that the admission was made by the accused, and secondly that it was truthful. Ordinarily that direction was given by judges according to the criminal standard of proof. In the case of each of those categories of evidence, the common law required such a direction to be given, without the judge being required to evaluate the potential reliability or otherwise of the evidence. By defining those four categories of evidence, in sub-paras (a), (c), (d) and (e) of s 31 of the Act, as evidence that may be unreliable, it would seem that the legislature has adopted a similar approach to such evidence. Thus, it would seem, where evidence, given by a witness, comes within one of those four categories contained in the definition of s 31, it is, ipso facto, considered to be evidence of the kind that may be unreliable.
[10]Burns v R (1975) 132 CLR 258.
The category of evidence, described in paragraph (b) of s 31, broadly reflects the kind of evidence considered by the High Court in Bromley v The Queen,[11] in determining whether a direction should have been given in in respect of a witness who was schizophrenic. Like the position at common law, the question, whether particular evidence fits within the category specified in s 31(b) of the Act, must depend on an assessment whether the reliability of that evidence ‘may be affected’ by one of the specified factors set out in the definition, namely, age, ill-health (whether physical or mental), injury or the like. In Allen,[12] this Court referred to two apparently different approaches, adopted in New South Wales cases, to the resolution of the question whether, for the purposes of s 165 of the Evidence Act 2008, the reliability of evidence may be affected by one of those factors. In Allen it was not necessary for the Court to resolve that issue. Nor, in the present case, is it necessary to enter upon that issue. As this Court noted in Allen,[13] under either approach, the requesting party must demonstrate that there is a reasonable possibility that the particular evidence, that is in issue, is of a kind that a jury, acting rationally, may consider to be unreliable.
[11](1986) 161 CLR 315 (‘Bromley’).
[12](2013) 39 VR 629.
[13]Ibid 639 [37].
In the present case, it is not necessary to consider the narrower question whether some or all of the circumstances, relied on by the applicant, fit within paragraph (b) of the definition in s 31 of the Act, and, if so, whether by reason of them the reliability of the evidence ‘may be affected’ by reason of those factors. Rather, in our view, the better approach, is to determine whether the combination of circumstances, relied on by the applicant, is such that the evidence of CK was of a kind that may be unreliable for the purposes of div 3 of pt 4 the Act, notwithstanding that it might not fit within any of the categories prescribed in s 31 of the Act.
In approaching that question, it is not sufficient that one or more, or all, of the circumstances, relied on by the applicant, might in some way have impacted on an assessment of the reliability of the evidence of CK by the jury. For, as noted by Kirby J in a passage in his judgment in Baartman,[14] which we shall set out below, evidence given by all witnesses may be potentially unreliable. At common law, the principal reason for directing a jury, that the evidence of a particular witness might be unreliable, in a case in which the evidence of that witness fell outside the recognised categories of unreliable evidence, was that, in such a case, the jury may not be sufficiently alert to the potential unreliability of that evidence, or to the reasons why that evidence might be unreliable.[15]
[14][2000] NSWCCA 298.
[15]See, for eg, Bromley (1986) 161 CLR 315, 324 (Brennan J); DPP v Faure [1993] 2 VR 497, 504 (Hampel J); R v Kotzmann [1999] 2 VR 123, 146 [77] (Batt JA).
In cases to which s 165 of the Evidence Act 2008 applies, the same rationale has generally been applied by the courts to determine the question whether evidence, which does not fit within the categories prescribed by sub-s (1) of that provision, nevertheless is evidence of a kind which may be unreliable, so as to require a direction by the judge to that effect. Thus, in Baartman[16] Kirby J stated:
Section 165(1) is not an ‘exclusive code’ … The opening words of s165(1) make it clear that the circumstances in which evidence may be unreliable extend beyond the classes of evidence identified by subsections (a) to (g). …
In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence …[17]
[16][2000] NSWCCA 298.
[17]Ibid [61]–[62].
That approach has been adopted and followed in a number of subsequent decisions in New South Wales[18] and in Victoria.[19] In Young,[20] this Court stated:
The kinds of evidence set out in s 165(1)are not exhaustive of the categories in respect of which a warning as to potentially unreliable evidence may be given. The question whether a warning should be given in cases not within the specific provisions therefore depends upon all the circumstances, but especially whether or not the jury would be able, relying on its own knowledge and experience, fully to evaluate or appreciate the subject matter said to call for the warning. The point was made in the common law context in the following way by Brennan J in Bromley v The Queen:
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer ‘partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’: see also per Lord Ackner and per Lord Diplock in Hester. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.[21]
[18]See Cioban v The Queen (2003) 139 A Crim R 265, 275 [52] (Mason P); R v Stewart (2001) 52 NSWLR 301, 308 [38]–[39] (Hulme J), 321 [97], 322 [101] (Howie J); Kanaan & Anor v R [2006] NSWCCA 109, [182]; RRS v R (2013) 231 A Crim R 168, 181 [87] (Hall J).
[19]Allen (2013) 39 VR 629, 639–640 [38]; Boyer (2015) 47 VR 640, 657-9 [86]–[90] (Kaye JA); Scannell [2014] VSCA 330 [15] (Priest JA).
[20][2015] VSCA 265.
[21]Ibid [69] (citations omitted).
The question then is whether, based on those principles, the factors relied on by the applicant were such as to have rendered the evidence of CK unreliable in a manner which might not be fully or sufficiently appreciated by the jury, in the absence of an appropriate judicial direction to that effect.
At trial, and in this Court, the applicant relied on a number of such circumstances. At the risk of repetition they can be briefly stated as follows.
At the time of the offence alleged against the applicant, CK, on his own account, was heavily drugged by the person who raped him. In the years before he attended XY School, CK had had a number of behavioural problems, so much so that he was referred to a paediatrician, and received a course of treatment at the PP Family Care Centre. During that treatment, he was diagnosed with frontal lobe epilepsy, as a result of which he tended to become over excited. After the applicant left school, he suffered vivid nightmares of being raped by religious brothers in circumstances identical to those alleged against both the applicant and RQ. During that period, at the age of 14 years, he commenced abusing marijuana and alcohol, and as a consequence developed a drinking and drug problem during his teenage years and into adulthood. As a result of his abuse of marijuana, and other substances, he suffered a drug induced psychosis, and was diagnosed and treated for schizophrenia from his mid-20s. At the time of the trial, he was still taking medication for that condition. Until the schizophrenia was controlled by appropriate medication, CK suffered auditory hallucinations. In that state, he would carry on conversations with persons who were not, in reality, present. In his early 30s, CK suffered a recurrence of his vivid nightmares, which persisted, became worse, and more frequent, in the period leading to his decision to report the allegations to the police in 2011.
Taken together, each of those matters were clearly relevant to the jury’s assessment of the evidence of CK against the applicant. Most of those factors individually, and a number of them in combination, had the potential to significantly affect the capacity of the applicant to remember and recall accurately the incident in which he alleged he had been raped by the applicant. The potential effect of each of those matters was compounded by the passage of time which, ordinarily would have had the tendency to erode the accuracy and reliability of CK’s memory.
It might be argued that each of the matters, that we have outlined, are matters which might be sufficiently understood by members of a lay jury. Individually, most of them are matters about which it could not be said that the court could or would possess any particular knowledge or experience over and above that of a lay person, other than, to some extent, the effects of mental ill-health, and abuse of drugs and alcohol. The question, then, is whether there was a risk that, in the absence of a judicial direction to that effect, the jury might not fully appreciate or sufficiently understand the weight of the combination of those circumstances on the reliability of the evidence given by CK against the applicant.
That question must be considered in light of three important considerations relevant to the case. First, at trial, both the credibility and the reliability of CK were very much in issue. The question with which we are concerned relates to the latter, namely, CK’s reliability. The case, being considered by the jury, was one in which CK’s evidence, as to the circumstances in which the applicant raped him, bore a striking similarity to the circumstances in which CK had also been raped by RQ some three or four weeks previously. As a consequence, the issue was squarely raised — and was put in cross-examination — that there was a possibility that CK, when describing the rape upon him by the applicant, was really describing a rape that had been perpetrated on him by RQ.
Secondly, and in that context, it is significant that, when CK first spoke to the police (six weeks before he made his statement), he said that while he was at XY School, RQ had drugged and raped him on three occasions, and that the applicant had drugged and raped him on two occasions, and had attempted to do so on a third occasion. In his evidence, CK was firm in maintaining that RQ raped him once, and that the applicant raped him once.
Thirdly, in order to determine its verdict, the jury was almost solely dependent on its assessment of CK as a witness, and of its assessment of the reliability of CK’s evidence. There was little, if any, other evidence upon which the jury could rely to be satisfied beyond reasonable doubt that the evidence given by CK was truthful and reliable.
It was in those circumstances that the jury was required to determine whether there was a reasonable possibility that CK’s memory might have been confused, so that he was erroneously alleging that the applicant had committed an offence against him that had, in fact, been perpetrated by RQ.
Taking those matters into account, we consider that the circumstances that we have outlined, relating to CK’s age, mental and emotional health, drug and alcohol abuse, and the lapse of time, were factors which had the capacity to have materially affected the reliability of CK in a manner, and to an extent, which might not have been fully appreciated and understood by the jury, in the absence of a direction by the judge requiring the jury to take particular care about its assessment of the reliability of CK’s evidence, and setting out the reasons why such care must be taken. While, as we have stated, it might be expected that a lay person would have an understanding of the effects of alcoholism, drug abuse, mental ill-health, and each of the other matters relied on by the applicant, the courts, from their own experience, have gained particular familiarity with the ravages caused by alcohol and drug abuse, and with the effects of mental ill-health of the kind suffered by CK. The concatenation of circumstances in this case, to which we have adverted, had a real potential to adversely affect the reliability of CK’s memory. Given the centrality of the issues as to the reliability of CK’s memory, and particularly the issue whether he might have been transposing the wrongdoings of one priest onto another, there was, we consider, a material risk that the jury might not have approached its task fully conscious of the risks associated with that combination of factors pertaining to CK’s background, in the absence of a judicial direction to that effect, bearing, as it would, the weight and authority of the office of the judge.
Accordingly, we are persuaded that the direction, sought by the applicant under s 12 and s 32 of the Act, should have been given to the jury. For those reasons, we uphold ground 1 of the application for leave to appeal.
Ground 2: whether the verdict was unreasonable or unable to be supported by the evidence
Applicant’s submissions
The applicant submitted that there were a number of features pertaining to CK and the account of his alleged rape that, at the least, ‘warranted appellate scrutiny and real concern’. First among them was the ‘striking similarity’ between the circumstances surrounding the two rapes. Second was the ‘all but incredible’ claim by CK that he would place himself in surroundings vis-à-vis the applicant that were almost identical to those attending his rape by Father RQ. Third were the circumstances in which CK claimed to have been raped. It was submitted that these ‘beggared belief’, having occurred a very short distance from a dormitory housing a large number of students, and directly across from toilets in which students were free to come and go, while CK was screaming in pain and screaming for help.
Fourth in the list of matters that were submitted to cast doubt upon CK’s reliability were:
·his (less than robust) mental health and diagnosed schizophrenia;
·his nightmares of faceless religious brothers raping him in precisely the way he alleged against the applicant;
·the passage of 28 years between his alleged rape and his report to police;
·the lengthy periods in his life during which he abused alcohol and drugs, accompanied at times by drug-induced psychoses;
·being under the influence of an unknown drug at the time of his rape.
The fifth of the features asserted by the applicant was the fact that CK’s evidence was ‘replete with inconsistent statements which demonstrated that CK’s memory was especially susceptible to distortion’.
The sixth of the features asserted by the applicant was that the ‘corroborative’ (complaint) evidence relied upon by the Crown given by CK’s grandfather, FD, was ‘bereft of any real probative value’.
Finally, it was submitted that there were features of the proceeding that caused or contributed to the applicant’s forensic disadvantage. Specifically, reference was made by the applicant to the fact that the police did not make enquiries from witnesses who may have been in a position to verify or discredit CK’s account. Residents in CK’s dormitory or students of the school may have been able to comment on the location of the applicant’s office, its features and on whether students resided in adjoining rooms.
In summary, the applicant submitted that, on the whole of the evidence, and in all of the circumstances, the jury were bound to have a reasonable doubt about the truth and reliability of CK’s account.
The respondent’s submissions
The respondent submitted that, consistently with authority, it is not sufficient for the applicant to demonstrate that the jury might have entertained a doubt about the applicant’s guilt; rather, the question is whether the jury must have entertained such a doubt. In making this submission, the respondent relied upon the High Court’s decisions in M v The Queen,[22] MFA v The Queen,[23] Libke v The Queen,[24] R v Nguyen,[25] SKA v The Queen[26] and R v Baden-Clay.[27]
[22](1994) 181 CLR 487 (‘M’).
[23](2002) 213 CLR 606 (‘MFA’).
[24](2007) 230 CLR 559 (‘Libke’).
[25](2010) 242 CLR 491 (‘Nguyen’).
[26](2011) 243 CLR 400 (‘SKA’).
[27](2016) 90 ALJR 1013 (‘Baden-Clay’).
The respondent submitted that it was open to the jury to conclude that the two rapes of CK ‘occurred in very similar circumstances’. It was submitted that even if some of the details and surrounding circumstances of the earlier rape had been transposed to the rape committed by the applicant, or vice versa, it was still open to the jury to be satisfied beyond reasonable doubt that it was the applicant who raped CK on the second occasion.
As to the applicant’s submission that it was ‘all but incredible’ that CK would place himself in surroundings that were almost identical to those attending his rape by RQ, the respondent submitted that CK’s explanation that he was ‘innocent’ at the time was one that the jury was entitled to accept. As to the circumstances ‘beggaring belief’ because the alleged rape occurred a very short distance from a dormitory and toilets to which the students had access, the respondent submitted that these were all matters about which CK was cross-examined and it was open for the jury to accept his evidence.
With respect to the asserted unreliability of CK and his evidence, the respondent’s short point was that the applicant’s arguments were based on speculation about how the various conditions relied upon could have affected CK’s memory of the rape. Again, it was submitted by the respondent that it was open to the jury to be satisfied beyond reasonable doubt that CK’s recollection and evidence of being raped by the applicant was reliable.
In respect of the applicant’s submissions concerning the complaint evidence given by FD, the respondent submitted that this evidence was of far less significance than CK’s recollection and evidence of the incident itself. In support of that submission, the respondent said it was open for the jury to find that CK did complain to his grandfather as a child, and to prefer CK’s evidence at trial. In any event, FD’s evidence was not critical to the Crown case.
Finally, the respondent submitted that the forensic disadvantage suffered by the applicant did not (either alone or in combination with the other matters relied upon by the applicant) lead to a conclusion that the jury should have had a reasonable doubt. The issue of forensic disadvantage was explained to the jury during the course of the trial. The judge gave an appropriately detailed direction to the jury about forensic disadvantage, and no exception was taken at trial (or in this Court) to that direction.
Analysis: ground 2
In ground 2, the applicant contends that the verdict of the jury is unreasonable or could not be supported by the evidence. Given our conclusions on ground 1, ground 2 is relevant to the question of whether there should be a retrial, or whether an acquittal should be ordered.
The principles to be applied, where it is argued that a verdict is unreasonable or is not supported by the evidence, are well known. They were summarised by Kyrou and Kaye JJA in Mejia (a pseudonym) v The Queen:[28]
The ground of appeal relied on is based on s 276(1)(a) of the Criminal Procedure Act 2009, namely, that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence. The principles, applicable to such a ground, have been outlined in a number of cases since the decision of the High Court in M v The Queen in 1994, including in R v Hillier, Libke v The Queen and SKA v The Queen. Most recently they were restated by the High Court in R v Baden-Clay.
In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted. It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant’s guilt. Rather, the critical question is whether, on the evidence, that the jury must (as distinct from might) have entertained a doubt about the guilt of the applicant. Ordinarily, in that respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered. However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court. Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury’s advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[29]
[28][2016] VSCA 296 (‘Mejia’).
[29]Ibid [139]–[140] (citations omitted).
At trial, much was made by defence counsel of all of the matters to which we have referred concerning CK’s reliability and the reliability of his account. The matters were fully ventilated in the cross-examination of CK and in submissions made by defence counsel in final address. The jury had the benefit of seeing and hearing the evidence, and in particular how CK dealt with all of the suggestions made to him during the course of cross-examination. In the end, CK was unshaken in his evidence that it was the applicant who raped him in the circumstances he described. Having regard to our conclusion in respect of ground 1, the question on the present ground is whether a properly instructed jury must have entertained a doubt about the applicant’s guilt.
As was said by the High Court in Baden-Clay,[30] in our system of criminal justice in relation to allegations of serious crimes tried by jury, it is the jury that is the constitutional tribunal for deciding issues of fact. This Court must not substitute trial by an appeal court for trial by jury.[31] That said, in the light of the submissions made by the applicant, we have conducted our own independent assessment of all of the evidence given at trial. Having conducted that assessment, we are unable to conclude that, if properly instructed, the jury must (as opposed to might) have entertained a doubt about the applicant’s guilt.
[30](2016) 90 ALJR 1013, 1023–1024 [65]–[66].
[31]Ibid.
The various conditions from which the applicant has suffered, and suffers, were not, on the evidence given at trial, an impediment to conviction. It was open to a properly instructed jury to conclude, after giving due allowance for all of the matters established during the course of the evidence of CK and BK, that they were satisfied beyond reasonable doubt that it was the applicant who raped CK in the circumstances described by him. It is of particular note that, while defence counsel elicited from CK and BK all of the conditions and matters from which one might infer that the reliability of CK’s account was open to question, no evidence was called or sought to be elicited that demonstrated the actual effect of those matters and conditions upon the reliability of CK’s perceptions, recollections and evidence. Moreover, while CK was extensively and comprehensively tested in cross-examination, even without the benefit of seeing and hearing him, he appeared to handle himself well – providing rational and reasonable responses to the questions asked of him.
In short, we are far from persuaded that CK’s account was so implausible or unlikely as to require a properly instructed jury to have a doubt about the essential elements of his testimony; nor are we persuaded that the various matters personal to CK (to which we have referred), the substantial lapse of time and the associated forensic disadvantage, and the fact that he was under the influence of a drug at the time of his rape, required the jury to have a doubt about the applicant’s guilt.
For these reasons, ground 2 must be rejected.
Conviction: conclusion
We will grant the applicant leave to appeal in respect of ground 1 only. Notwithstanding that we have concluded that a properly instructed jury could have convicted the applicant on the evidence adduced at trial, we are persuaded that the failure of the judge to the direction to the jury, that was the basis of ground 1, constituted a substantial miscarriage of justice. Accordingly, the appeal will be allowed. The applicant’s conviction for rape and the sentence imposed on that charge will be set aside, and there will be a retrial of that charge.
SENTENCE
Introduction
The applicant’s proposed grounds of appeal against the sentence imposed by the judge related to both the sentence imposed for the rape of CK and the sentences imposed for the three indecent assaults to which the applicant pleaded guilty in April 2015. Having regard to our conclusions on the conviction appeal, it is now no longer necessary to consider the judge’s sentence for the rape of CK — that conviction and sentence having been set aside. We turn, therefore, to sentences imposed by the judge in respect of the three indecent assaults. Before dealing with the applicant’s complaints in relation to the sentences for indecent assault, it is necessary to describe briefly the offending that relates to those sentences.
Circumstances of the offending
The three indecent assaults to which the applicant pleaded guilty occurred in the following circumstances. After his ordination as a priest in 1987, the applicant befriended a family with four children. The youngest, D, was then 7 years of age. The applicant visited frequently, the family trusted him and the applicant would often stay overnight at their home. On one such visit, the applicant went to D’s bedroom and while D was in bed, the applicant pulled down D’s pyjamas and rubbed D’s penis for several minutes (charge 1 of indecent assault).
In 1995, the applicant visited the same family. On this occasion, the applicant slept on a mattress in the lounge with D and his brother. D, who was then 14 years of age, awoke when the applicant touched his penis. The applicant pulled down D’s boxer shorts and put his mouth against D’s penis. The applicant stopped when lights came on in the kitchen ( charge 2 of indecent assault).
D told his family about the applicant’s conduct when he was 18 or 19. His parents arranged a meeting with the applicant, and the applicant apologised for what had occurred. D went to the police in November 2011.
In mid-1995, the applicant arranged for himself and a relative’s family to visit D’s family and stay at their farm. The relative’s family contained a young girl, AD, who was aged 7 or 8 at the time. When AD had gone to bed for the night, the applicant entered the room she was in, knelt beside her and put his hand under her bed clothes. The applicant touched her vagina over her clothing with a finger. The applicant did this for some minutes before AD pretended to wake up and clenched her legs together. The applicant moved away for some time, before coming back to the bed and putting his hand under her bed clothes again. The applicant forced his hand between her thighs, under her clothes and towards her vagina. The applicant stopped after a few minutes and sat on another bed.
The applicant returned to AD’s bed on a third occasion. He put his hand under her blankets, inside her pants and tried to get his fingers close to her vagina. AD crossed her legs to stop the applicant and he then went to bed. Charge 3 of indecent assault related to the sexual activity with AD. She disclosed the offending to friends when she was 14 and to her family in 2004. The applicant was confronted about these allegations then and denied them. AD went to the police in August 2012.
Other offending
On 22 August 2011, the applicant was sentenced in the County Court, by Judge Wood, in respect of three charges of indecent assault.[32] Two of the charges were representative counts and one was a discrete count. The offending involved the applicant fondling the penis and testicles of his victim and putting his tongue in the victim’s mouth while trying to kiss him. The offences were committed in 1983, and the victim of the offending was a 12 year old Year 7 student at the school at which the applicant was teaching.
[32]DPP v [Hudson] (Unreported, County Court of Victoria, Judge Wood, 22 August 2011).
Having regard to the issue of delay, the applicant’s pleas of guilty at the first reasonable opportunity and the rehabilitation then demonstrated by the applicant, Judge Wood sentenced the applicant to a total effective sentence of two years’ imprisonment, 15 months of which was wholly suspended for a period of two years. In the result, the applicant served nine months in prison.
The judge’s reasons for sentence
In sentencing the applicant, the judge referred at length to the victim impact statements filed on behalf of D and AD.[33] Those victim impact statements disclose the significant harm to D and AD caused by, and the substantial effects of, the applicant’s offending against D and AD.
[33]DPP v [Hudson] (Unreported, County Court of Victoria, Judge Chettle, 21 June 2016) [17]–[18] (‘Reasons’).
The judge then dealt with a submission that had the matters to which the applicant pleaded guilty before Judge Wood been before him, then the applicant would have been given substantial concurrency of the sentence imposed. The judge rejected that submission, noting that the applicant fell to be sentenced as a serious sexual offender on each of the current charges (the applicant having become a serious sexual offender when Judge Wood sentenced him).[34] The judge said:
In sentencing you, I must regard protection of the community from you as the principle purpose of sentencing. To achieve that purpose, the court may impose a disproportionate sentence to the sentence that would otherwise be imposed. The prosecution submitted that a disproportionate sentence is not required in your case, and I accept that I can adequately protect the community with the sentences otherwise available to the court on the charges before me.
However, I do direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on all four charges for which I am to sentence you.
Section 6E of the Sentencing Act directs that every term of imprisonment imposed in these circumstances must be served cumulatively unless the court otherwise orders. It is for this reason that I cannot accept the argument addressed by your counsel as to what would have been the sentence if all matters had been heard at the same time, that is, at the time of Judge Wood's sentence.
There may have been some small amount of concurrency, however s 6D would have, in my view, required substantial, if not total, cumulation of sentence. I will however, have regard to the sentence imposed by Judge Wood, that was two years' imprisonment with 15 months suspended for two years, when arriving at a total sentence on all these charges. You have served nine months in prison, and I accept your counsel's submission in that regard that such term of imprisonment has relevance to the narrative of your life subsequent to your offending, and therefore is relevant to your future prospects of rehabilitation.[35]
[34]Ibid [20]–[21].
[35]Ibid [21]–[25].
The judge then described the applicant’s personal circumstances. The applicant was 60 years of age at the time of sentencing. The judge described him as an intelligent and well educated man, who became a priest and teacher and ultimately held positions as deputy principal, and later as a principal of a school in South Australia.[36] The judge also described in some detail psychological matters affecting the applicant that were relevant in sentencing.[37] The judge accepted that the applicant’s prospects for rehabilitation were good, saying:
Not only have you not offended for over 20 years, but your life has completely changed, you will not have the opportunity to reoffend, it seems to me. You have lost your vocation as a priest and as a teacher. You are highly unlikely to find yourself in a position of trust with young children in the future.[38]
[36]Ibid [27]–[32].
[37]Ibid [33]–[38], [46]–[47].
[38]Ibid [46].
The judge discussed other relevant sentencing considerations. In the course of this discussion, the judge said that principles of general deterrence, denunciation and just punishment were predominant sentencing considerations for all of the applicant’s offending.[39]
[39]Ibid [53].
Submissions on sentence
The applicant’s submissions on sentence were directed primarily to the sentence of six years’ imprisonment imposed for the rape of CK. Having regard to our conclusions in respect of the conviction appeal, it is not necessary to address these submissions. As to the sentences imposed in respect of the applicant’s offending against D and AD, the applicant contended that the sentences infringed the principle of totality when one had regard to the sentence imposed by Judge Wood. Totality was said to be infringed because if the applicant had been sentenced on the one occasion for all of his offending, then there would have been greater concurrency.
In addition to his complaint about totality, the applicant submitted that the individual sentences and the orders for cumulation were manifestly excessive having regard to:
·the applicant’s guilty pleas in relation to D and AD were entered at the earliest practicable opportunity;
·the guilty pleas spared D and AD the distress of cross-examination, and also manifested the applicant’s remorse and the facilitation of the course of justice;
·there had been significant delay between the applicant’s interviews with police and the sentences ultimately imposed;
·the existence of significant rehabilitation, with the applicant not having offended since 1995;
·the fact that applicant’s risk of reoffending is very low;
·the fact that the applicant’s time in custody would be more burdensome as a result of the psychological matters referred to by the judge in his reasons for sentence.
The respondent submitted that the judge’s reasons for sentence did not disclose any error. The judge expressly had regard to the principle of totality.[40] There is no basis for saying that the principle of totality has been infringed, particularly having regard to the fact that the applicant fell to be sentenced as a serious sexual offender.
[40]Ibid [59].
As to the complaint of manifest excess, the respondent submitted that the sentences imposed were within range.
Analysis: sentence
There is no substance in the applicant’s complaints about totality and manifest excess.
In respect of the issue of totality, it is to be observed that the sentence imposed by Judge Wood only required the applicant to serve nine months’ imprisonment. It is not reasonably arguable that Judge Wood’s sentence coupled with the sentences imposed for the offending against D and AD infringed the principle of totality, or that the judge made any error with respect to totality. To borrow from the words of the sentencing judge in the present case, the applicant’s offending must be seen as serious serial sexual exploitation of young victims, in a predatory and calculated manner (notwithstanding the setting aside of the applicant’s rape conviction).[41] Moreover, there can be no doubt that the judge had regard to the issue of totality when sentencing the applicant.[42] Ground 1 must be rejected.
[41]Ibid [55].
[42]Ibid [19], [25] and [59].
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[43] The sentences and orders for cumulation made in respect of the indecent assaults committed on D and AD cannot reasonably be said to be wholly outside the ranges available. While there were substantial mitigating features (plea of guilty at earliest reasonable opportunity, delay, good prospects of rehabilitation and the other matters relied upon by counsel for the applicant, and referred to by the sentencing judge in his reasons), those matters did not require the sentencing judge to impose lesser sentences or shorter orders for cumulation than those he in fact imposed. Ground 2 must be rejected.
[43]R v Abbott (2007) 170 A Crim R 306.
As it is not reasonably arguable that the sentences for the applicant’s indecent assaults or the orders for cumulation were affected by any error, the application for leave to appeal against sentence must be refused.
There remains, however, one final issue. As we will set aside the applicant’s rape conviction and the sentence imposed on that charge, the total effective sentence and non-parole period imposed by the judge must now be set aside, and a new total effective sentence and non-parole period must be fixed. Leaving the judge’s sentences and orders for cumulation on the indecent assaults in place, produces a total effective sentence of three years and six months’ imprisonment. There is no basis for interfering with this sentence. Consistently with the way in which the judge sentenced the applicant, we would fix a new non-parole period of two years and six months.
Orders
The applicant’s application for leave to appeal against conviction will be granted. The appeal against conviction will be allowed, and the conviction and sentence imposed on indictment No E13123877 will be set aside. There will be a retrial of the charge on that indictment.
The application for leave to appeal against sentence on the charges on indictment No C1510133 will be refused. On the charges on that indictment, the total effective sentence is three years and six months’ imprisonment. A non-parole period will be fixed of two years and six months.
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