Hutton (a pseudonym) v The King
[2024] VSCA 282
•25 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0208 |
| NICHOLAS HUTTON (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, KENNEDY AND BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 October 2024 |
| DATE OF JUDGMENT: | 25 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 282 |
| JUDGMENT APPEALED FROM: | DPP v [Hutton (a pseudonym)] (Unreported, County Court of Victoria, Judge O’Connell, 24 October 2023) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Sexual assaults – Text exchange between complainant and applicant – Whether trial judge erred by failing to exclude evidence of applicant’s post-offence text requesting that complainant delete text exchange – Whether protective direction given pursuant to s 23 Jury Directions Act 2015 highlighted error – Applicant’s post-offence text admissible – Protective direction ameliorated risk of prejudice – Application for leave refused.
Evidence Act 2008, s 137; Jury Directions Act 2015, s 23.
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| Counsel | |||
| Applicant: | Mr R Nathwani SC with Ms F Fox | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Applicant: | Doogue + George Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
KENNEDY JA
BOYCE JA:
Introduction
The applicant faced trial in the County Court on five charges of sexual assault. He also faced one charge of rape. The applicant was convicted of all charges, save for one of the charges of sexual assault. That particular charge was withdrawn from the jury at the close of the prosecution case. The applicant was sentenced to a total effective sentence of 4 years and 9 months’ imprisonment, with a non-parole period of 2 years and 6 months. The individual sentences, total effective sentence and non-parole period imposed upon the applicant are described in the table set out below.
Charge
Offence
Maximum
Sentence
Cumulation
Indictment L12756561 1 Sexual Assault[1] 10 years Fine of $2,000 N/A 2 Sexual Assault[2] 10 years Fine of $2,000 N/A 4 Sexual Assault[3] 10 years 9 months 3 months 5 Sexual Assault[4] 10 years 9 months 3 months 6 Rape[5] 25 years 4 years & 3 months Base Total Effective Sentence: 4 years and 9 months’ imprisonment Non-Parole Period: 2 years and 6 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 11 days Section 6AAA Statement: N/A Other Relevant Orders: Pursuant to s 6F of the Sentencing Act 1991, sentenced as a serious sexual offender on charge 6 [1]Contrary to s 40 of the Crimes Act 1958.
[2]Contrary to s 40 of the Crimes Act 1958.
[3]Contrary to s 40 of the Crimes Act 1958.
[4]Contrary to s 40 of the Crimes Act 1958.
[5]Contrary to s 38 of the Crimes Act 1958.
The applicant seeks leave to appeal against his conviction on three proposed grounds of appeal. Those proposed grounds are in the following terms:
1. His Honour erred in ruling that the ‘please delete’ text message was relevant pursuant to section 55 of the Evidence Act 2008;
2.The probative value of the evidence (if any) was outweighed by its prejudicial effect, and so should have been excluded by the judge pursuant to s 137;
3. Judicial Direction only highlighted the evidence and gave it undue prominence.
For the reasons that follow, we consider that the applicant’s application for leave to appeal against conviction must be refused.
The prosecution case
The complainant, her partner, the applicant, and his wife, were all serving police officers. Apart from the complainant’s partner, all were stationed at a town in rural Victoria. The complainant and her partner hoped that the partner would, at some stage, also commence working at this station.
Shortly after 6:00 pm on 25 April 2020, the complainant, her partner and the complainant’s three daughters,[6] visited the applicant, his wife and their two boys at the applicant’s home. The adults congregated in a shed located on the property. A fifth police officer also attended. That person stayed for a period but then left. He was gone by the time of the events which form the subject matter of the present case. The shed had been converted into a living area with a fireplace, couches and a television. The children spent the bulk of their time inside the house.
[6]From an earlier relationship.
It had been an emotional time for the adults. A police colleague had recently committed suicide; and, only days earlier, four police officers had tragically lost their lives when they were hit by a truck on Melbourne’s Eastern Freeway.[7] The four adults sat around a table in the shed. Alcohol was consumed. Estimations as to the amount of alcohol drunk varied. At one point a preliminary breath-testing device was produced, and blood-alcohol readings were taken. The evidence suggested that the complainant’s partner was probably the most affected by alcohol. He was said to be ‘heavily intoxicated’ by the time of the alleged offending. At one point a photograph was taken of him passed-out while seated in a camp chair. At another point he apparently vomited.
[7]The applicant and the complainant had earlier sent text messages to one another by means of Facebook Messenger concerning these matters.
As the evening progressed, food became an issue. The complainant opened a bag of chips and placed them in a bowl on the table. The four adults, at this point, were each seated on two couches positioned close to the table. The applicant and complainant were seated on one couch; the applicant’s wife and the complainant’s partner were seated on the other.
The complainant said in evidence that the applicant squeezed her lower right hip with his left hand. The complainant said that she ‘froze’; she said that this was ‘really out of the blue’. The complainant said that the applicant squeezed the complainant’s hip two further times at an interval of 10 seconds apart. The first time the complainant just looked at the applicant; the second time she pushed the applicant’s hand away.
A short time later, the complainant said that the applicant attempted to touch her a further time. The complainant said that when she again tried to push the applicant’s hand away, the applicant grabbed her hand and pulled it onto his lap. The complainant was able to feel the applicant’s penis. It was erect. The complainant pulled her hand away immediately. This conduct formed charge 1. It did not appear to the complainant that the other adults had noticed what had occurred. The attention of the complainant’s partner was focussed on patting the applicant’s dog. The applicant’s wife was focussed on the TV.
The complainant then said that the applicant touched her again in the area of her hip. When the complainant looked at the applicant he nodded at her as if to indicate that she ought look downwards. She did so. She noticed that the applicant’s legs were crossed; but they were crossed in a manner which revealed the tip of the applicant’s penis. The applicant’s penis could be seen protruding from the left side of his cargo shorts. It appeared to the complainant that the applicant’s shorts had been pulled up so as to permit this to occur. The complainant’s partner was still patting the dog. He was said to be unwell due to intoxication. This activity formed the basis of charge 2.
The complainant did not say anything. Nevertheless, she stood up and asked to swap seats with the applicant’s wife. The complainant then sat next to her partner. At one point the applicant’s wife left the shed and went inside the house. The complainant said that the applicant then got up and walked behind the couch on which she and her partner were seated. The complainant said that she looked at the applicant. She saw the applicant pull his penis out of his pants. The complainant said that, again, the applicant nodded at the complainant as if to offer her encouragement. The complainant shook her head. The complainant’s partner was still patting the dog. The applicant’s wife was still out of the shed. The complainant said that she turned away from the applicant but she then felt the applicant touch the back of her neck; indeed, she felt the applicant kiss her to the left side of the back of her neck. The complainant said that she shuffled forward so that the applicant could not reach her. This conduct was said to justify a charge of sexual assault — charge 3. At the close of the prosecution case the trial judge upheld a no-case submission in respect of this charge; the jury were discharged from entering a verdict in connection with it.
The complainant said that the applicant’s wife returned to the shed. The complainant and her partner left the shed and went inside the house. The complainant put her partner to bed in a spare bedroom. By this stage, the complainant’s partner was significantly affected by alcohol. The complainant checked on her children (who were asleep in the lounge room) and then got into bed with her partner. The complainant said that she went to bed wearing a long-sleeved top, her bra and underwear.
Once in bed, the complainant’s partner went straight to sleep. At 1:33 am the complainant received a Facebook message. It was from the applicant. The message appeared in a ‘chat-log’ which was described as a ‘secret conversation’. The applicant then engaged in the following text exchange with the complainant.
Applicant
Are you coming back out
Complainant
Nah I don’t reckon
Applicant
You should
Complainant
Don’t you need to cut wood in the morning?
[A’s][8] not silly
Applicant
Come back out
She is up for it
3 way
Complainant
Haha no she’s not
Applicant
Walk in on us now
Complainant
I can’t do it to [B][9]
Applicant
She is sucking my cock
Complainant
I’m no home wrecker [C].[10] Enjoy your wife [smiling emoji]
Applicant
Please come out
Complainant
I can’t do it [to B]! I love him too much
Applicant
She is fucking me
Come out
Complainant
I won’t [C]. Seriously.
Complainant
[A] is mad about you. She’s your everything [C]. Don’t let one silly night ruin your marriage
Applicant
I’m walking in soon. I want to lick your boobs. Meet me in the hall
Complainant
It’s your beer talking. Just sleep it off and you’ll feel different tomorrow
[8]‘A’ here is a reference to the name of the applicant’s wife.
[9]‘B’ here is a reference to the name of the complainant’s partner.
[10]‘C’ here is a reference to the applicant’s name.
The complainant said that, almost directly after the last message, the applicant appeared in the doorway of the spare bedroom. The complainant said that she jumped out of bed and pushed the applicant out into the hallway. The complainant’s partner did not stir. The complainant testified that she said to the applicant ‘what the fuck are you doing?’. She said that she told the applicant to ‘pull [his] head in’.
The complainant said that the applicant kept repeating to her that he wanted to ‘lick [her] boobs’. The complainant said that she told the applicant not to be stupid and that his wife loves him. The complainant said that she tried to push the applicant away but that the applicant grabbed her right hand and pulled it towards him. He kept hold of the complainant’s hand and placed it on his exposed erect penis. The complainant said that the applicant kept repeating ‘please, please, just let me lick your boobs’. The complainant continually responded ‘don’t be stupid, no, go back to bed’. This conduct, on the applicant’s part, was led in support of charge 4.
The complainant said that she was frustrated and angry. She said that she began to panic. She said that she put her left hand to the applicant’s collarbone in an attempt to hold him at bay. She said that the applicant was pushing towards her. At some point the complainant stopped pushing back. The complainant said that her right hand was still being held to the applicant’s penis. The complainant then said that the applicant pulled up her top, pulled down her bra, and started sucking on the nipple of her right breast. This conduct formed charge 5. The complainant said that this went on probably for something less than 10 seconds.
The complainant testified that the applicant then attempted to kiss her. While he was doing this, and while he continued to hold the complainant’s right hand onto his penis, the complainant said that the applicant penetrated her vagina with his finger. This was after he had used his right hand to push aside the complainant’s underwear. The complainant said that she ultimately broke free from the applicant. She said, ‘don’t’ and then returned to the spare bedroom. The penetration of the complainant’s vagina constituted charge 6 — the offence of rape.
Once back in bed, the complainant tried to wake her partner but was unsuccessful. She then received a further message from the applicant. It read: ‘I want to fuck you’. There was then a further text exchange between the complainant and the applicant. It went as follows:
Complainant
I know you do!
Applicant
Do you want to fuck me
Complainant
No. My relationship with [B] means more to me
Applicant
Sorry if I have upset you
Complainant
You haven’t. We’re good x
At 1:51 am the complainant received a Facebook text message from the applicant’s wife. It read: ‘Love you sweetheart. Thank you for visiting tonight. Your girls are gorgeous’. It was accompanied by an emoji face blowing a love-heart kiss. The complainant replied with: ‘Thank you for having us [followed by three love-heart signs] I love you too [followed by four emoji faces each blowing a love-heart kiss]’.
It seems that, by this stage, the applicant, his wife and the complainant all obtained some sleep. The complainant’s partner remained asleep throughout the hallway incident and was unaware of the text exchanges that had been engaged in by the complainant.
Earlier in the evening, and as referenced in the text exchange extracted above, it had been discussed that the applicant was required to rise at 7:00 am the following morning to chop firewood. It seems that the applicant conducted a side-business selling firewood. There was evidence to suggest that it had been loosely arranged that the complainant’s partner might assist the applicant in this endeavour. But this was not to be. When the complainant’s partner did awake the following morning, he was not feeling well.
But the applicant did get up early. He left to chop wood. At 6:29 am he sent a Facebook message to the complainant. It read ‘Please delete our messages’. It was accompanied by a smiley-face emoji.[11] At 6:58 am another message was sent by the applicant to the complainant. It read: ‘So hungover’. This text was accompanied by a sad-face emoji. At 9:59 am the complainant sent a Facebook message to the applicant. This message read: ‘Done. Water under a bridge’. This message was accompanied by a ‘peace sign’ emoji.[12] The applicant replied with a ‘thumbs up’ emoji. The complainant did ultimately delete these messages, but not until after she had taken screenshots of them.
[11]This message, and its accompanying emoji, will be referred to throughout the rest of these reasons as the ‘please delete’ text.
[12]This message, and its accompanying emoji, will be referred to throughout the rest of these reasons as the ‘water under a bridge’ text.
The complainant said that she did not reply immediately to the applicant’s ‘please delete’ text because she did not feel comfortable deleting the earlier messages. She said that she was not sure about what to do. She said that she did not want to respond saying that she had, or had not, deleted the earlier messages. She said that she ‘hadn’t yet decided what [she] was going to do with the messages’.
The complainant did not get up the next morning until about 10:00 am. Her partner got up with her. The applicant’s wife was still in bed. There was a further text exchange between the complainant and the applicant’s wife. The complainant, her partner and the applicant’s wife met in the house. The complainant said nothing to the applicant’s wife about the applicant’s offending. The complainant said that she was still ‘processing what [she] should do’. The complainant did not tell her partner about what had occurred. At some point later, the applicant returned from chopping wood. The complainant, her partner and her children then left.
The complainant did not go immediately to the police. As the complainant put it: ‘they’re [meaning the applicant and his wife] our colleagues. There’s no way I would have done that’. She said that she did not think that she would be believed. She said that she did not wish to jeopardise her partner’s chance of joining her at the local police station.
The following Saturday, 2 May 2020, the complainant and the applicant had a further text exchange. It concerned some beer that the applicant thought the complainant’s partner may have left in the applicant’s refrigerator. Further messages were exchanged between the two on 9 and 10 May 2020. The applicant invited the complainant for a ‘quiet beer’. The complainant said that she was unable to attend. The applicant later said that the complainant had missed out on a ‘good night’. He also wished the complainant ‘Happy mother’s day’.
On 2 May 2020, the complainant spoke to her partner. She told her partner about what had happened with the applicant the week earlier in the shed. She did not tell her partner about the events she said had later occurred inside the applicant’s house in the hallway. The complainant testified that she felt that she could not ‘verbalise what had happened in the hallway’. She said that she felt ‘a lot of shame’ about not having done more to resist the applicant. She showed her partner the screenshots of the messages that she had exchanged with the applicant. The pair decided not to go to the police. It was thought that they ought protect the applicant’s wife.
The complainant met with a senior police officer (an inspector) on 14 May 2020. The reason for this meeting was that the complainant had been successful in obtaining a position at another rural police station. The complainant told the inspector about what had happened in the applicant’s shed. Again, the complainant said nothing about the hallway incident. The complainant showed the inspector the text messages that she had exchanged with the applicant. The complainant said that she did not tell the inspector about what had occurred in the applicant’s hallway because she felt that ‘the words just [got] stuck whenever [she tried to] say it out loud’. She said that she also felt ‘embarrassment’ and ‘shame’.
The complainant spoke again with the inspector on 15 May 2020. During this conversation the complainant provided no further detail concerning what had happened on 25 April 2020 with the applicant. The inspector said to the complainant that she would support the complainant if she wanted to make a complaint about the applicant. The complainant later made some notes of what she said had occurred at the applicant’s place.
The complainant saw the inspector again on 18 May 2020. During this conversation, the complainant told the inspector about what had happened with the applicant in the hallway of the applicant’s house. The following day, the complainant made a formal statement to police. She later told her partner about what had occurred in the hallway.
The complainant said that she did not see the applicant in the period between 25 April 2020 and 19 May 2020 when she made her statement.
The prosecution called the complainant’s partner to give evidence. He was unable to recall much of what had occurred on the evening of 25 April 2020. He confirmed that he had initially only been told by the complainant about what she said had occurred in the applicant’s shed.
The applicant’s wife gave evidence. She said that she had been present in the shed but had not seen, or noticed, anything out of the ordinary. She confirmed that she had engaged in consensual sex with the applicant in the shed after the complainant and the complainant’s partner had gone to bed.
The Crown called the inspector to confirm the terms of the complainant’s later complaints to her.
The defence case
The applicant relied, in his defence, upon the version of events that he gave police in his record of interview. In summary, the applicant told police that when he was in the shed he sat on the couch next to the complainant. He said that the complainant voluntarily rubbed his erect penis. He said that at some point his penis came out of his shorts, but that the complainant kept rubbing it. He said that there was no other sexual contact with the complainant in the shed.
He said that after the complainant and her partner went to bed he engaged in consensual sex with his wife. This was in the shed. He said that he messaged the complainant to join in. He said that he had an open sexual relationship with his wife. He texted the complainant asking her to meet him in the hallway. The complainant did so. Upon meeting in the hallway, the applicant said that the complainant kissed him and touched his penis. The applicant said that he touched the complainant’s breasts, but he said that he did not lick them. He said that the complainant grabbed his hand in an attempt to move it to her underwear. The applicant said that he resisted this and told the complainant ‘no’; he said that he told the complainant that this was not to happen unless his wife was included. The applicant said that the complainant declined this offer. The applicant said that he then went back out to the shed and continued having sex with his wife. The applicant denied committing the acts said to constitute charges three, five and six.
The applicant said that he had sent the ‘please delete’ text because ‘more so on [the complainant’s partner’s] part, a bit embarrassed once you’re not in the mood, drinking and things like that’. He said: ‘clear light of day, I didn’t want [the complainant’s partner] to see … I didn’t want him [sic] to lose a friendship with him … I was more — more worried about if [the complainant’s partner] found out because he wasn’t part of it’.
An application to exclude the ‘please delete’ text
Submissions
It is apparent that the Crown intended to lead as part of its case the applicant’s ‘please delete’ text and the complainant’s ‘water under a bridge’ text.
Prior to trial, the applicant applied to have the ‘please delete’ text ruled inadmissible. The applicant noted that the prosecution had not filed a notice of incriminating conduct in respect of this evidence; nevertheless it was submitted that there was a risk that the jury would use the ‘please delete’ text in the manner of incriminating conduct. More specifically, it was submitted that there was a risk that the jury would think that the applicant had something to hide. This risk was heightened, so it was said, because in the complainant’s statement she hypothesised as to why the applicant had sent this text. The complainant had said in her statement: ‘At 6:29 am I received a message from [the applicant] saying “Please delete our messages”, smiling emoji, I remember thinking that this was [the applicant] showing that he was feeling guilty about his behaviour’.[13]
[13]Emphasis added.
The applicant submitted that it was accepted by the Crown that he had sought deletion of the earlier messages for fear that they may have been discovered by the complainant’s partner. It was submitted that the ‘please delete’ text was not relevant, or if it was, it was only marginally so. To the extent that the ‘please delete’ text possessed probative value such probative was, it was submitted, outweighed by the risk of unfair prejudicial effect to the applicant. It was submitted that protective directions calculated to ameliorate this risk would serve only to highlight the problem. It was submitted that the ‘please delete’ test could not amount to context or relationship evidence. It was submitted that the ‘please delete’ text was unnecessary in order to understand the complainant’s narrative of events.
The prosecutor confirmed that the ‘please delete’ text was not going to be relied on as incriminating conduct. The prosecutor assured the judge that she was not going to adduce from the complainant that part of the complainant’s statement where she hypothesised as to the applicant’s reason for sending the ‘please delete’ text. The prosecutor submitted that the ‘please delete’ text was relevant as it formed part of the narrative ‘of what occurs in the immediate aftermath of the charged offending’. Its relevance was said to lie in the fact that, apparently, ‘what was to occur in the hallway was open knowledge’. The ‘please delete’ text was said to be relevant, also, in that it provided necessary context to the complainant’s ‘water under a bridge’ text. It could also — so it was submitted — relevantly explain why the complainant had delayed, to some extent, in making her complaint. It was submitted that any risk of unfair prejudice consequent upon admitting the ‘please delete’ text could be cured by appropriate protective judicial direction.
Ruling
The trial judge, in a brief but comprehensive ex tempore ruling, determined that the ‘please delete’ text was ‘part of the narrative’. His Honour considered that this evidence was relevant to an assessment of the complainant’s credit, in particular, in respect of her ‘water under a bridge’ text and, additionally, it was relevant to the unfolding of the complainant’s complaint to others. The judge ruled that any risk of prejudice could be dealt with through a direction given in accordance with s 23 of the Jury Directions Act 2015 (‘JDA’).[14]
[14]Section 23 of the JDA states that ‘(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge — (a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and (b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged’.
The proposed grounds of appeal
The proposed grounds of appeal were argued together by the applicant. The submissions made in support of them largely mirrored what had been put below. It was submitted that in the absence of it being alleged that the ‘please delete’ text amounted to incriminating conduct, this text was simply irrelevant; it did not prove any element of the offence charged; nor was it relevant as context/relationship evidence or as part of the complainant’s narrative.
In the alternative, it was submitted that if the impugned evidence was relevant then it was only ‘marginally’ so. Accordingly, the trial judge ought to have excluded the evidence through the application of s 137 of the Evidence Act 2008 (‘EA’). There was a ‘very real risk the jury could misuse the evidence as incriminating conduct’. This risk was enhanced in circumstances where the complainant had, in evidence before the jury, when she was asked to examine the ‘please delete’ text, quite unresponsively commented that this message had been sent by the applicant ‘cause he’s guilty. He knows he’s done something wrong’. The risk of unfair prejudice was enhanced even further — it was submitted — when the prosecutor, in closing to the jury, argued that the applicant was ‘expressing concern’ in the ‘please delete’ text by asking the complainant to delete the earlier exchange, and was lying when he said in his record of interview that the reason for seeking such deletion was that he did not want the complainant’s partner to find out about the text exchange.
It was submitted that no application for a discharge of the jury had been made at trial in light of the pre-trial ruling made by the trial judge. It was accepted that the trial judge had directed the jury not to use the ‘please delete’ text as evidence which suggested the existence of a belief on the applicant’s part that he considered himself to have done the wrong thing. But — as had been submitted below — this direction served merely to ‘highlight that the evidence should have been excluded’ in the first place.
The respondent submitted, in writing, that the impugned text message was relevant on two bases. First, it was relevant to the applicant’s credit, in particular to his claim that ‘what was to occur sexually between he and the complainant was open knowledge and would not have been of concern to his wife’.
Secondly, it was submitted that the impugned text message was relevant as providing ‘necessary context’ to the complainant’s ‘water under a bridge’ text. It was said also to bear relevantly upon the complainant’s conduct the following morning and the general unfolding of the complainant’s complaint in the ‘days and weeks that followed’.
It was emphasised that the applicant had not sought exclusion of the complainant’s ‘water under a bridge’ text. It was submitted that the applicant could not claim the benefit of the complainant’s ‘water under a bridge’ text without the jury knowing about the text to which the ‘water under a bridge’ text had been a response. It was submitted that the applicant could not claim the benefit of the exchange which occurred between the applicant, his wife and the complainant later on the morning of the 26th without the jury having a complete picture of what had earlier passed between the applicant and the complainant.
The respondent submitted that the complainant was cross-examined on the basis that she had delayed in making a full complaint about the applicant’s offending. The ‘please delete’ text message was, it was submitted, thus apt to re-establish the complainant’s credibility in this regard. It was open to the jury to reason that this text stood as encouragement by the applicant to forget ‘what had occurred’ and, as such, might have contributed to the complainant’s delay in complaining.
In oral submissions, these arguments were refined. It was ultimately conceded by the respondent, orally, that but for the admission into evidence of the complainant’s ‘water under a bridge text’, the ‘please delete’ text would have been inadmissible.
It was submitted that the trial judge’s direction given to the jury in accordance with s 23 of the JDA (which it must be assumed the jury followed) in effect ‘nullified’ the risk of prejudice in this case.
The manner in which the ‘please delete’ text featured at trial
In order properly to assess the applicant’s grounds of appeal it is necessary to give some attention to how the ‘please delete’ and ‘water under a bridge’ texts featured at trial.
In opening her case before the jury the prosecutor outlined the evidence that she intended to adduce. This included giving a summary of the applicant’s version of events that he gave in his record of interview. The prosecutor referred to the fact that the applicant said that he had asked the complainant to delete his text exchange with the complainant so that the complainant’s partner would not see it, and because the applicant was ‘embarrassed’.
Defence counsel, in his opening, also outlined his client’s case. He told the jury that it was not in dispute that the applicant sent the ‘please delete’ text. It was put that:
His reason for doing so he said were [sic] to ensure that [the complainant’s partner] didn’t find out.
In evidence-in-chief the complainant was taken through her text exchange with the applicant. She identified the applicant’s ‘please delete’ text as well as her ‘water under a bridge’ response.
In cross-examination it was suggested to the complainant that her text exchange with the applicant, which took place after the hallway incident, was inconsistent with her claim of rape. It was suggested to the complainant that the sexual encounter in the hallway had not occurred as she had described it in her evidence-in-chief. It was put to the complainant that any sexual contact that she had with the applicant was consensual. The complainant denied this. The complainant rejected the suggestion, for instance, that the applicant’s ‘sorry if I’ve upset you’ text was the applicant apologising for having asked the complainant to come back out to the shed.
The complainant was then taken, in cross-examination, to the ‘please delete’ text and asked: ‘Do you see that?’. The complainant answered: ‘Yeah, ‘cause he’s guilty. He knows he’s done something wrong’. A little later defence counsel took the complainant to her ‘water under a bridge’ text. The complainant agreed that she was meaning to convey, by this text, that she had deleted the earlier messages. It was put to the complainant that she had deleted these messages because she did not want her partner to find out about them. The complainant rejected this suggestion.
It was then put to the complainant, in cross-examination, that her ‘water under a bridge’ text did not indicate that she was upset or concerned about anything that the applicant had done to her. The complainant rejected this assertion. She was pressed on this particular issue. She was asked: ‘What in this message demonstrates you are either upset or concerned … about what — anything that [the applicant] has done to you?’. The complainant answered that her intention was to make sure that the applicant knew that she was not upset or concerned about what she said had occurred. The complainant said that she ‘didn’t want to create that tension and drama’. It was suggested to the complainant that this lack of concern was consistent with the nature of various texts that she had sent the next morning to the applicant’s wife. The complainant was asked whether she agreed that this was the case because ‘no criminal act was perpetrated against you’. The complainant did not agree.
During a break in the complainant’s cross-examination defence counsel raised with the trial judge the fact that the complainant had said in evidence that the applicant sent the ‘please delete’ text because he was guilty and knew that he had done something wrong. Defence counsel emphasised the fact that it had been agreed, prior to trial, that this evidence would not be led. Defence counsel told the judge that he would ‘reflect on the best course’. In terms of options open to ameliorate any prejudice that might flow to the applicant as a result of this evidence, defence counsel suggested to the judge that:
One is for everyone to make clear that’s not the Crown’s case but if the Crown don’t want to make that concession, then I have to consider where we are given the Crown’s position that they never were intended to go to the jury on that basis and that arguments et cetera are said by Your Honour and the Crown that they don’t go to — they don’t rely on.
The judge responded by indicating that he would give a direction pursuant to s 23 of the JDA concerning the evidence that defence counsel had highlighted. The prosecutor confirmed that she would not rely on incriminating conduct reasoning in respect of the ‘please delete’ text and the evidence that the complainant had given about this text. She said that she would address the jury, as she put it, in terms of the applicant’s explanation for having sent the impugned text. The judge said that he would give defence counsel the opportunity to ‘think about all that’. There was then a brief adjournment.
After the adjournment, the judge confirmed with the prosecutor that the complainant had, prior to giving evidence, been warned not to mention her suspicions concerning why the applicant had sent the ‘please delete’ text. The prosecutor said that she had warned the complainant to this effect ‘in no uncertain terms’. The prosecutor suggested that the judge might wish to warn the complainant about this, again, in the absence of the jury. The judge agreed. Defence counsel submitted that the complainant ought to have known not to give the evidence that she gave. The judge responded that ‘[i]t might also depend on the tightness of the questions and answers’. Defence counsel submitted that the answer that the complainant gave was ‘not responsive to the question [that he had] asked’. The judge responded: ‘I accept that … but the questions do need to be very tight on that particular topic’. The cross-examination of the complainant then continued.
The complainant was taken, in cross-examination, to later text exchanges that she had with the applicant over the following two weekends after 25 April. It was suggested to the complainant that:
And again there’s no way here you’re saying, ‘What you did to me was outrageous’. There’s no sign, for example, of anger or anything untoward insofar as what’s occurred with him, do you agree?
The complainant answered: ‘That’s correct, yeah’.
After the close of evidence there was discussion concerning directions that the trial judge would give to the jury. The prosecutor sought a direction in accordance with s 23 of the JDA to be given concerning the ‘please delete’ text. Defence counsel agreed that this direction should be given. In particular, defence counsel sought that this direction warn the jury that they were not to reason in respect of the ‘please delete’ text in the manner hypothesised by the complainant. Defence counsel submitted that the jury be told that the Crown does not seek to rely on this form of reasoning. Defence counsel even submitted that the jury be told that the applicant’s explanation, given in his record of interview, for sending the ‘please delete’ text — namely, that he wanted to keep the text exchange from being seen by the complainant’s partner — ‘doesn’t appear to be challenged’ by the Crown.
In the prosecutor’s closing, it was argued that in text exchanges between the applicant and the complainant it was not the case — as had been put to the complainant in cross-examination by defence counsel — that the complainant was concerned about her partner finding out about any sexual encounter that she had had with the applicant. To the contrary, it was argued that the complainant was only concerned to rebuff the applicant. The prosecutor then argued:
And I suggest to you that there is only one person expressing concern in those messages and that’s [the applicant], ‘please delete our messages’.
The prosecutor at a later point centred upon the version that had been given by the applicant in his record of interview. The prosecutor alleged that the applicant had lied in his record of interview. Dealing with the applicant’s expressed reason for asking the complainant to delete their text exchange, the prosecutor submitted as follows:
When [the applicant] was asked in his interview why he told [the complainant] to delete their messages he said it was because he didn’t want [the complainant’s partner] to see them and he didn’t want to lose a friendship with him … But this conflicts with his own actions, I suggest to you.
He doesn’t want [the complainant’s partner] to see his sleazy messages to his partner, but he was more than happy to get handsy with her, and ‘handsy’ was the word that he used in his interview and let her rub his penis when they were on the couch, and tell her he was hard, right in front of [the complainant’s partner] in the shed. And then he was more than happy to meet [the complainant] in the hallway when [the complainant’s partner] was sleeping nearby and kiss her and feel her breasts. This doesn’t make sense and I suggest that it doesn’t make sense because it’s not true.
This drew a further exception from defence counsel. Defence counsel submitted that the prosecutor had attempted to undermine the applicant’s reason — as expressed in his record of interview — for asking the complainant to delete their text exchange. Defence counsel complained that what the prosecutor had argued:
potentially engages with the incriminating conduct the Crown has said they don’t rely on that text message for at all, in particular as the only evidence as to the purpose of that text message comes from the accused in interview where he says — well, there were two, as Your Honour permitted. One of them in particular was, ‘Well, it’s because I wanted to hide the relationship from [the complainant’s partner]’.
The judge responded that he did not understand the prosecutor to be relying on incriminating conduct. As the judge put it:
I took the submission as seeking to criticise the explanations as to why he sought to have the messages deleted, which is a point that seemed to me to go to credibility, didn’t seem to me to expressly invite consciousness of guilt reasoning.
Defence then observed that ‘[o]ne wonders if it goes to credit what else is left if one rejects that, as the jury have been invited to do so’.
The judge sought to solve this further difficulty by outlining what he proposed to say about the ‘please delete’ text in his directions to the jury. The judge set out the directions that he planned to give concerning this matter. Those directions were then described in the following terms:
You will recall that in the Facebook messages … at 6:29 am, [the applicant] messaged [the complainant] stating, ‘Please delete our messages’. You will recall that message and you will also recall that when [the complainant] was cross-examined about that message, she was asked the following question: ‘All right, then we see at 6:29, “Please delete our messages” with a smiley emoji, do you see that?’ Answer: ‘Yeah, because he’s guilty. He knows he’s done something wrong’.
…
[I]n respect of that answer given by [the complainant], that evidence, the prosecution have not suggested, and I direct you as a matter of law, that you must not conclude that the accused is guilty because he asked the complainant to delete the messages. There are all sorts of reasons why a person in the position of the accused might ask for those messages to be deleted. He may, for example, as he said, be embarrassed or concerned as to what would happen if [the complainant’s partner] saw those messages. Indeed, there may be any number of reasons why he might request the messages be deleted. In those circumstances it would be wrong for you and unfair to reason that he’s guilty from that request and you must not do so.
The judge then asked defence counsel whether that direction was ‘adequate for [defence counsel’s] purposes?’. Defence counsel answered: ‘Thank you. It is, thank you’.
In his closing to the jury, defence counsel took the jury to the text exchange between the applicant and the complainant and submitted that the terms of this exchange were inconsistent with the complainant’s account of being raped. It was submitted that if the complainant had been raped then, after the applicant’s ‘Sorry if I have upset you’ text, the complainant would not have replied ‘You haven’t. We’re good x’.
Defence counsel then dealt specifically with the ‘please delete’ text and submitted:
Now the deleting the message, when asked about the message that says ‘Please delete these messages’, you may recall [the complainant] said, ‘Well, that means he’s guilty’, or it demonstrates his guilt. And you might have thought when you heard the prosecution deal with the delete of the text message it may not have been clear.
Let’s be clear because you’ll receive a legal direction about this. Absolute rubbish that it indicates that he’s guilty of this offence. Absolute rubbish. And more so you’re not allowed to use it in that way. It doesn’t mean that at all. Look at what he says. It’s because he was embarrassed and because he in effect wanted [the complainant’s partner] not to know about the relationship.
It’s a red herring. Ignore it, it does not evidence anything apart from the narrative between the two. And you know as it happens, he didn’t want [the complainant’s partner] to know, neither did [the complainant].
After closing arguments the judge gave, as part of his directions to the jury, the exact s 23 JDA direction that he had suggested to counsel he would give and is extracted above. There was no exception taken to this direction.
Analysis
In circumstances where it was agreed between the parties that the complainant’s ‘water under a bridge’ text would be admitted into evidence, it was plainly correct for the judge to rule that the applicant’s ‘please delete’ text was relevant evidence. The complainant’s ‘water under a bridge’ text, whether considered in isolation or in conjunction with the ‘please delete’ text, was able rationally to affect the assessment of the probability of a fact in issue.[15] On one view, indeed perhaps the only view, it was evidence of behaviour on the complainant’s part that was inconsistent with her having been offended against by the applicant. This may explain why the complainant’s ‘water under a bridge’ text was not the subject of objection by defence counsel. But the ‘please delete’ text clearly bore upon the meaning to be attributed to the ‘water under a bridge’ text; and the ‘please delete’ text was, for this reason, also relevant. Put simply, was the ‘water’ that was under ‘a bridge’ the offending, the earlier text exchange, or perhaps a combination of both?
[15]Evidence Act 2008, s 55.
The respondent effectively conceded that the ‘please delete’ text’s admission into evidence was dependent on the admissibility of the ‘water under a bridge’ text. Thus, had successful objection been taken to the ‘water under a bridge’ text,[16] the ‘please delete’ text would have been rendered irrelevant and thus also inadmissible.
[16]Had it, for instance, been included in the exception taken.
When the judge made his pre-trial ruling, this ruling was based on various assumptions. It was assumed, for instance, that the prosecutor would not adduce evidence from the complainant concerning why she believed that the applicant had sent the ‘please delete’ text. It was assumed, also, that the prosecutor would not rely on the ‘please delete’ text as incriminating conduct. Defence counsel — it seems — appeared to assume that the prosecutor would not call into question the applicant’s expressed reason (as stated in the record of interview) for sending the ‘please delete’ text.
At the time of the preliminary ruling the judge considered that a direction given to the jury in accordance with s 23 of the JDA would be sufficient to protect the applicant against any risk of unfair prejudice consequent upon the admission into evidence of the ‘please delete’ text.
We consider that, in view of the assumptions upon which the trial judge’s pre-trial ruling was based, his Honour’s decision to admit the ‘please delete’ text was correct; the ‘please delete’ text was relevant evidence and its probative value was not outweighed by the danger of unfair prejudice to the applicant. Put another way, the applicant had to take the rough with the smooth; if he wanted to obtain the benefit of the ‘water under a bridge’ text then he had to live with any modifying influence that the ‘please delete’ text might provide.
But, obviously enough, matters developed after the ruling. Both the relevance of, and the prejudice associated with, the ‘please delete’ text became enhanced as the complainant’s cross-examination ensued. The relevance of the ‘please delete’ text increased once it was suggested to the complainant, in cross-examination, that her sending of the ‘water under a bridge’ text was inconsistent with her claim that the applicant had offended against her. Once that suggestion was made, the need for the balancing context of the ‘please delete’ text became even more pressing. But the risk of prejudice also grew when the complainant, contrary to prior understanding, hypothesised in evidence that the applicant had sent the ‘please delete’ text because he was ‘guilty’ and that he knew that he had done something wrong. At least from defence counsel’s perspective prejudice increased when the prosecutor in her closing address called into question the applicant’s stated reason for sending the ‘please delete’ text.
Whilst the trial judge’s ruling was correct, an issue arises as to whether, in light of these nominated developments at trial, there arose a substantial miscarriage of justice (as alleged in the applicant’s proposed grounds of appeal) on account of an ‘error or an irregularity in, or in relation to, the trial’ or ‘for any other reason’.[17] For reasons that follow, we are not persuaded that there was any error or irregularity, nor any substantial miscarriage of justice.
[17]Criminal Procedure Act 2009, s 276(1)(b)–(c).
Examining, for the moment, the manner in which the prosecutor closed on the applicant’s reason, given in his record of interview, for sending the ‘please delete’ text; we are not persuaded that the prosecutor’s argument amounted to a contention that the applicant had sent this text because he believed himself to be guilty. To the extent that focus was placed on the applicant’s ‘concern’, namely that the complainant’s partner might find out about what had passed between the applicant and the complainant, this topic was referred to initially by the prosecutor as part of an argument in rebuttal of the suggestion that had been made to the complainant that she had also shared such a concern. Of course, the complainant had rejected this suggestion. It was not suggested by the prosecutor that the applicant was so concerned because he believed himself to have done the wrong thing or that he considered himself to be guilty. It was argued that the complainant’s lack of concern about her partner finding out told against her having consented to the applicant’s requests that she join him in sexual activity.
But then, later in her closing, the prosecutor questioned whether the applicant might really have been concerned, at all, about the complainant’s partner finding out about the text exchange. The basis of this contention was that on his own account the applicant was prepared to engage in consensual sexual conduct in the shed with the complainant in the physical presence of the complainant’s partner. It was argued that there was thus an internal inconsistency in the applicant’s account and that this tarnished the applicant’s credibility generally. But again, at no stage did the prosecutor submit that the applicant had lied because he believed himself to be guilty.
Whilst the relevance of, and prejudice associated with, the ‘please delete’ text increased as the cross-examination of the complainant developed, we do not consider that the balance between the probative value of the ‘please delete’ text and the danger of unfair prejudice to the applicant associated with that text altered materially from the point at which the trial judge made his original ruling. Thus, the course that the trial took did not require exclusion of the ‘please delete’ text by operation of s 137 of the EA.
Important to this calculus is that the judge did ultimately give the s 23 JDA direction as promised. To the extent that the applicant argued that once the prosecutor had called into question the applicant’s reason for sending the ‘please delete’ text there was an unacceptable risk that the jury might reason along incriminating conduct lines (even though the prosecutor had not made any such argument), we do not consider that in the circumstances of this case this risk was particularly pronounced, or that this risk was unmanageable by means of protective direction.
For one thing, the prosecutor’s credit argument had some difficulties. Although the exact timing of events in the shed was, at least to some extent, unclear; the evidence did suggest that the complainant’s partner was the most influenced by alcohol. For a period of time, he was effectively unconscious. This was confirmed by the almost total lack of recall on the part of the complainant’s partner. For a period when he was heavily intoxicated his attention was focussed on patting the applicant’s dog. Engaging sexually in a surreptitious way with the complainant, in the manner described by the applicant in his record of interview, may not have been such a tall order in these circumstances.
And even if the jury had cause to doubt whether the applicant had feared that his text exchange might come to the complainant’s partner’s attention, there were many other objectively rational reasons why a person in the applicant’s position would seek deletion of what he considered to be perfectly innocent messages, of the type exchanged, sent to a work colleague: revelation later at the office might be one such reason.
Also, in its terms, the text exchange describes, perhaps most eloquently the nature of the applicant’s desires, rather than anything that he had actually done.
It is to this kind of situation that s 23 JDA is directed. That the direction given pursuant to this section was successful in avoiding the risk of prejudice may be gauged — at least in part — by the attitude of defence counsel. As the chronology of events at trial outlined above demonstrates, after the complainant had given her unexpected evidence concerning the applicant’s motivation for sending the ‘please delete’ text, and even after the prosecutor had closed to the jury calling into question the applicant’s reason for sending that text, when asked directly by the trial judge whether a s 23 JDA direction would be sufficient for defence counsel’s purposes to protect the applicant from unfair prejudice, the reply given was in the affirmative. And no further exception was taken.
But as noted above, the applicant submitted before this Court that no application for a discharge of the jury had been made because doing so would have been inutile given the trial judge’s pre-trial ruling. But this is unpersuasive. As has been described, in point of objective fact at least one of the assumptions that underpinned the pre-trial ruling had evaporated by the time the applicant accepted, as sufficient for his purposes, the protective balm of a s 23 JDA direction. That assumption was that the complainant would not hypothesise before the jury as to why the applicant had sent the ‘please delete’ text. Once the complainant had given that evidence the landscape altered and it was at least open to seek a discharge should this have been thought necessary.
And, to the extent that defence counsel may have been surprised when the prosecutor, in closing, called into question the applicant’s reason for sending the ‘please delete’ text; still, it might have seemed to defence counsel that a further pillar supportive of the judge’s original ruling had fallen away. But, again, no application to discharge the jury was forthcoming. To the contrary, it was accepted that a s 23 JDA direction was adequate to protect the applicant in all the circumstances.
It ought be observed, perhaps for completeness, that senior counsel for the applicant (who was defence counsel at trial) submitted in this Court that he would not have cross-examined the complainant about the ‘water under a bridge’ text had the ‘please delete’ text been ruled inadmissible at the pre-trial stage. So much may be accepted. But had successful exception been taken to the ‘water under a bridge’ text, any problems associated with the ‘please delete’ text would have vanished entirely. Of course, such exception was not taken. In these circumstances, it is difficult not to conclude that the decision to cross-examine the complainant on the ‘water under a bridge’ text was the product of tactical forensic consideration. If that was so, then it was a perfectly rational approach to take.
On any objective analysis, the ‘water under a bridge’ text constituted a powerful weapon in the defence arsenal. And it was rational to conclude that any troublesome side-effects associated with the ‘please delete’ text could be suitably mitigated by the giving of an appropriately targeted s 23 JDA direction. The applicant’s best-case scenario may have been to have the ‘water under a bridge’ text placed before the jury in splendid isolation; but, failing this, it was still much better to have the ‘water under a bridge’ text before the jury than not have it at all.
It was correct of the judge to rule that the ‘please delete’ text was admissible. The correctness of that decision was not altered by the course that the trial took. The s 23 JDA direction did not highlight, or give undue emphasis to, the ‘please delete’ text. To the contrary, and as is reflected in the approach taken by defence counsel at trial, the s 23 JDA protective direction was sufficient to ameliorate the risk of unfair prejudice to the applicant and provide a reason why the ‘please delete’ text was admissible in the first place.
Conclusion
The applicant’s proposed grounds of appeal are not reasonably arguable. Leave to appeal must be refused.
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