James v The King
[2023] VSCA 34
•2 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0159 |
| PETER JAMES (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant, the complainant and other witnesses.
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| JUDGES: | EMERTON P, KYROU and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 January 2023 |
| DATE OF JUDGMENT: | 2 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 34 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1176 (Judge M Bourke) |
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CRIMINAL LAW – Appeal – Conviction – Two charges of sexual activity in presence of child under 16 (charges 2, 6) – Intermediary not sworn as required by s 389K(4) of Criminal Procedure Act 2009 – Whether irregularity in proceeding resulting in substantial miscarriage of justice – No substantial miscarriage of justice.
CRIMINAL LAW – Appeal – Conviction – Inconsistencies between complainant’s visual audio recorded evidence (VARE) and evidence at special hearing – Conviction not reasonable or not supported having regard to evidence in relation to charge 2 but not charge 6 – Leave to appeal granted and appeal allowed – Conviction set aside and judgment of acquittal entered for charge 2 – Sentence of 16 months’ imprisonment for charge 6 set aside – Appellant resentenced to time served (265 days) for charge 6.
Criminal Procedure Act 2009 ss 276(1), 389F–389K; Evidence Act 2008 ss 21, 22, 30, sch 1; Criminal Procedure Regulations 2009 reg 21, sch 1; Juries Act 2000 sch 3.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, M v The Queen (1994) 181 CLR 487 applied; Awad v The Queen (2022) 405 ALR 589, Baini v The Queen (2012) 246 CLR 469 considered.
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| Counsel | |||
| Applicant: | Mr PJ Smallwood with Mr M Weinman | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Chris McLennan & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
F5 dec
TABLE OF CONTENTS
Introduction and summary
Extension of time application
Overview of prosecution and defence cases
Ground 1: Effect of intermediary not being sworn
Statutory provisions relevant to ground 1
Legal principles relevant to ground 1
Facts relevant to ground 1
Parties’ submissions on ground 1
Decision on ground 1
Grounds 2 and 3: Adequacy of evidence for charges 2 and 6
Statutory provisions and legal principles relevant to grounds 2 and 3
Complainant’s evidence relevant to charges 2 and 6
Other prosecution evidence relevant to charge 6
Defence evidence relevant to charges 2 and 6
Parties’ submissions on grounds 2 and 3
Decision on grounds 2 and 3
Conclusion and resentence
EMERTON P
KYROU JA
KAYE JA:
Introduction and summary
On 12 May 2022, the applicant was convicted by a County Court jury of two charges of sexual activity in the presence of a child under 16 (charges 2 and 6).[2] The victim of his alleged offending was his stepdaughter, Leyla James.[3] He was acquitted on one charge of an indecent act with a child under 16 (charge 1), three charges of attempted sexual penetration of a step-child (charges 3, 4 and 5) and one charge of sexual assault of a child under 16 (charge 7).
[2]Contrary to Crimes Act 1958, s 49F(1). The maximum penalty is 10 years’ imprisonment. The standard sentence is 4 years’ imprisonment: See s 49F(2A) of the Crimes Act and ss 5A and 5B of the Sentencing Act 1991.
[3]A pseudonym.
On 22 July 2022, the applicant was sentenced by a County Court judge to 16 months’ imprisonment on each of charges 2 and 6.[4] The sentence on charge 2 was treated as the base sentence and 4 months of the sentence on charge 6 was cumulated, resulting in a total effective sentence of 20 months’ imprisonment. A non-parole period of 10 months was fixed and the applicant was required to report as a registrable offender under the Sex Offenders Registration Act 2004 for 15 years.[5] A period of 42 days’ pre-sentence detention was declared.
[4]DPP v James (a pseudonym) [2022] VCC 1176 (Sentencing Remarks’).
[5]This is the length of the reporting period set by s 34 of the Sex Offenders Registration Act.
The applicant has sought leave to appeal against his conviction on the following three grounds:[6]
1As the result of an irregularity in the trial, Ms Wheelan having acted as an intermediary when prohibited from doing so by s 389K(4) of the Criminal Procedure Act 2009 (Vict.), there has been a substantial miscarriage of justice.
2The verdict of the jury on charge 2 was unreasonable or cannot be supported having regard to the evidence.
3The verdict of the jury on charge 6 was unreasonable or cannot be supported having regard to the evidence.
[6]In these reasons, proposed grounds of appeal are referred to as grounds of appeal. In ground 1 and in the trial transcript, the intermediary’s surname is spelt ‘Wheelan’. In some other documents, it is spelt ‘Whelan’. We will use the spelling in the trial transcript.
As the notice of application for leave to appeal was filed outside the 28 day time limit prescribed by s 275(1) of the Criminal Procedure Act 2009 (‘CPA’), the applicant also seeks an extension of time under s 313(1) of the CPA.
For the reasons that follow:
(a)the applications for an extension of time and for leave to appeal will be granted;
(b)ground 2 is made out, but grounds 1 and 3 are not;
(c)the appeal will be allowed, the guilty verdict on charge 2 will be set aside and a judgment of acquittal will be entered in respect of that charge; and
(d)the sentence on charge 6 will be set aside and the applicant will be resentenced on that charge as set out at [141] below.
Extension of time application
Before us, it was common ground that, if we form the view that any ground of appeal has merit, the applicant should be granted an extension of time within which to file his notice of application for leave to appeal. In the light of our conclusion that ground 2 is made out, the application for an extension of time will be granted.
Overview of prosecution and defence cases
The alleged offending comprised 6 incidents represented by 7 charges. The complainant was aged 6 at the time of the first incident and 7 or 8 at the time of the remaining incidents. The applicant was aged between 67 and 69 during the period covered by the incidents.
The complainant was born on 20 April 2010 and her sister, Miya,[7] was born in 2013. The complainant and Miya share a mother, Meagan James.[8] The applicant is not their biological father. He and Ms James commenced a relationship in approximately 2013 and were married in 2014. The complainant and Miya adopted the applicant’s surname and referred to him as their father. Ms James and the applicant have two sons, Samuel[9] (born in 2014) and Adam[10] (born in 2017).
[7]A pseudonym.
[8]A pseudonym.
[9]A pseudonym.
[10]A pseudonym.
According to the prosecution case:
(a)On a date between 1 October and 1 December 2016, while the complainant was sharing a bed with Ms James and the applicant in their home, he pulled the complainant’s pants and underwear halfway down and rubbed his penis against her vagina (charge 1, indecent act with a child under 16 — acquitted).
(b)On a date between 1 April and 31 August 2018, the applicant and the complainant were sharing a hotel room in a coastal town. She saw him masturbate his penis until he ejaculated (charge 2, sexual activity in the presence of a child under 16 — convicted). The evidence relevant to charge 2 is discussed in detail below.
(c)On a date between 1 September and 30 October 2018, the applicant and the complainant were home while Ms James was absent. The applicant carried the complainant into the bathroom and locked the door. He sat her on the bench next to the sink, removed her leggings and underpants, made her open her legs and attempted to introduce his penis into her vagina (charge 3, attempted sexual penetration of a stepchild — acquitted).
(d)On a date between 1 September and 31 December 2018, when Ms James was not home, the applicant again took the complainant into the bathroom and locked the door. He lifted her onto the bench next to the sink, removed her shorts and underpants, and attempted to introduce his penis into her vagina (charge 4, attempted sexual penetration of a stepchild — acquitted).
(e)On a date between 28 August and 31 December 2018, while the complainant and the applicant were alone at the office of his security business in a suburban shopping centre, he attempted to introduce his penis into her vagina while she was on a couch (charge 5, attempted sexual penetration of a stepchild — acquitted). She asked him to stop, which he did. After that, while she was on the computer watching a video game, she saw him masturbating until he ejaculated (charge 6, sexual activity in the presence of a child under 16 — convicted). The evidence relevant to charge 6 is discussed in more detail below.
(f)On 1 January 2019, while the complainant was sharing a bed with Ms James and the applicant in their home, he pulled down the complainant’s pants and underwear and rubbed his penis against the outside of her vagina (charge 7, sexual assault of a child under 16 — acquitted).
Towards the end of 2018, the complainant said to her cousin, Nina Bartholomew,[11] that the applicant was touching her in ‘parts’ she did not want to be touched, that he touched her ‘rude spot’, and that she felt disgusted and asked him to stop. On 3 January 2019, while the complainant was holidaying in Queensland with her family, she told another cousin, Amanda Zima,[12] that: the applicant sexually abused her ‘heaps of times’; he tried to penetrate her but did not actually do so; the abuse occurred on her mother’s bed, in the bathroom and in a hotel at a coastal town; she was scared; and she told him to stop. Amanda told their aunt, Narelle Odina.[13] In response to questions from Ms Odina, the complainant stated that the applicant ‘takes his pants off and he tries to put it in me.’ The family then reported the matter to Queensland police.
[11]A pseudonym.
[12]A pseudonym.
[13]A pseudonym.
On 4 January 2019, the complainant was taken to a Queensland police station and participated in the Queensland equivalent of visual audio recorded evidence (‘VARE’). She gave further VAREs to Victorian police on 17 January 2019 and 14 August 2019. As the evidence that is presently relevant is contained in the 17 January 2019 VARE, unless otherwise indicated, all reference to the complainant’s VARE below are to that VARE.
The applicant was arrested and interviewed on 22 January 2019. He denied the allegations of sexual misconduct and relevantly stated: the complainant, Ms James and he would all sleep together in the same bed; the complainant would sometimes come to his office, which contained a couch; he went to a coastal town with the complainant for three days for her to shoot a commercial, and they stayed in a hotel room; he was diagnosed with erectile dysfunction in 2012 and, approximately two years ago, he was prescribed medication which makes it difficult to get an erection and to ejaculate, but he was still able to achieve both. He also drew a diagram of the hotel room at the coastal town, which showed only one bed.
The complainant gave evidence and was cross-examined at a special hearing on 27 and 28 November 2019. Fiona Wheelan acted as intermediary for the complainant’s evidence on 27 November 2019 and Katherine Collins acted as intermediary on 28 November 2019. Ms Collins made an affirmation prior to acting as intermediary, whereas Ms Wheelan did not take an oath or make an affirmation prior to doing so.
The applicant gave evidence at trial.[14] He denied that he engaged in the conduct the subject of each of the seven charges.
[14]There were two trials, the first in November–December 2019 and the second in April–May 2022. The jury in the first trial was discharged without verdict during its deliberations. The second trial was delayed due to the COVID-19 pandemic. See Sentencing Remarks [2].
Ground 1: Effect of intermediary not being sworn
Statutory provisions relevant to ground 1
The CPA and the Evidence Act 2008 contain provisions regarding evidence to be given by witnesses in court proceedings — including evidence given through an interpreter or with the assistance of an intermediary — and the oaths or affirmations that apply to witnesses, interpreters and intermediaries.
The respective roles of witnesses and interpreters are self-evident. A witness gives evidence about facts relevant to a proceeding. In the case of a witness who lacks sufficient competence in the English language, an interpreter interprets questions asked of such a witness from English into the witness’s own language and answers given by the witness from his or her own language into English. An interpreter may be used in any case in which a witness requires one, irrespective of the age or other personal attributes of the witness or the type of proceeding in which he or she gives evidence.
Neither the CPA nor the Evidence Act defines the role of an interpreter. However, s 30 of the Evidence Act provides that: ‘[a] witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.’ As set out at [25] below, the Evidence Act also prescribes forms of oath and affirmation for interpreters.
By way of contrast, div 2 of pt 8.2A (ss 389F to 389K) of the CPA contains detailed provisions regarding the role of an intermediary and the circumstances in which evidence may be given with the assistance of an intermediary.
Section 389F(1) of the CPA confines the involvement of an intermediary to criminal proceedings and to witnesses (including a complainant, but not an accused) who are under the age of 18 years at the time the proceeding commences or who have a cognitive impairment.
Section 389I of the CPA sets out the function of intermediaries in the following terms:
Function of intermediaries
(1)The function of an intermediary is—
(a)to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and
(b)to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person.
(2)An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness.
Section 389J(3) of the CPA provides for evidence to be given without the assistance of an intermediary in the following limited circumstances:
A court must not appoint an intermediary for a witness if the court is satisfied that the witness—
(a)is aware of the right of the witness to make an application for an intermediary to be appointed; and
(b)is able and wishes to give evidence in the criminal proceeding without the assistance of an intermediary.
Section 389K of the CPA sets out requirements that must be met before a person can act as an intermediary and the manner in which an intermediary may assist a witness, in the following terms:
Witness to give evidence in presence of intermediary
(1)In a proceeding in which an intermediary has been appointed, the evidence of the witness must be given in the presence of the intermediary.
(2)Subject to any direction of the court and rules of court, the evidence of the witness given in the presence of the intermediary must be given in circumstances in which—
(a)the court and any legal practitioner appearing in the proceeding are able to see and hear the witness giving evidence and to communicate with the intermediary; and
(b)the jury (if any) is able to see and hear the witness giving evidence (including any assistance given by the intermediary) …
(3)The provisions of Division 2 (other than section 22(2)) of Part 2.1 of the Evidence Act 2008 which apply to interpreters are taken to apply to an intermediary. …
(4)A person must not act as an intermediary in a particular proceeding unless the person has taken an oath or made an affirmation in the prescribed form.
The form of oath required by s 389K(4) of the CPA which applied to the present case was prescribed by reg 21 and sch 1 of the Criminal Procedure Regulations 2009 (‘CP Regulations’),[15] in the following terms:
[15]The Criminal Procedure Regulations 2020 have replaced the Criminal Procedure Regulations 2009.
Oaths by intermediaries
I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person’s religion) that I will well and truly communicate questions and answers, and make true explanation of all matters and things, that are required of me in this case to the best of my ability.[16]
[16]The form of affirmation prescribed by sch 1 to the CP Regulations follows the form of the prescribed oath, save that the intermediary ‘solemnly and sincerely [declares] and [affirms]’ rather than swears by Almighty God or a god recognised by his or her religion.
It will be recalled from [22] above that s 389K(3) of the CPA stipulates that the provisions of div 2 (other than s 22(2)) of pt 2.1 of the Evidence Act — which deal with interpreters — are to be taken to apply to intermediaries. Division 2 of pt 2.1 of the Evidence Act is headed ‘Oaths and affirmations’ and comprises ss 21 to 25. Only section 22 of the Evidence Act is presently relevant. It provides as follows:
22Interpreters to act on oath or affirmation
(1)A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding.
(1A)An oath taken, or an affirmation made, by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken or affirmation made by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter.
(2)The person is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.
(3)Such an affirmation has the same effect for all purposes as an oath.
Although s 22(2) of the Evidence Act is not to be taken to apply to intermediaries, it is useful to set out the prescribed oaths for interpreters, as well as witnesses, in order to highlight the differences in the roles of witnesses, interpreters and intermediaries. Schedule 1 to the Evidence Act prescribes the following forms of oath for witnesses and interpreters:
Oaths by witnesses
I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
Oaths by interpreters
I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.[17]
[17]The forms of affirmation prescribed by sch 1 to the Evidence Act for witnesses and interpreters follow the forms of the prescribed oaths, save that the witness or interpreter ‘solemnly and sincerely [declares] and [affirms]’ rather than swears by Almighty God or a god recognised by his or her religion.
The oath of a witness is relevant to subss 21(1) and (4) of the Evidence Act, which provide that a witness must either take an oath or make an affirmation, in the form set out in sch 1 or in a similar form, before giving evidence. However, s 21(6) provides that, for a child or a person with a cognitive disability, the words ‘I promise to tell the truth’ suffice.
Ground 1 relies upon section 276(1)(b) of the CPA which provides that the Court of Appeal must allow an appeal against conviction if it is satisfied that ‘as a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.
Legal principles relevant to ground 1
The principles of statutory construction are well established.[18] The starting point is the text of the statutory provision, considered in light of its context and purpose.[19] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[20] It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity.[21] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text.[22] A court can, in determining which competing interpretation of a statute ought be adopted, have regard to the consequences of each interpretation.[23]
[18]Paragraph [28] is based upon AB v Independent Broad-based Anti-corruption Commission [2022] VSCA 283, [123] and Vicinity Funds RE Ltd v Commissioner of State Revenue [2022] VSCA 176, [69]–[70].
[19]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20], 157 [41], 162–3 [64]. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47].
[20]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (‘Project Blue Sky’).
[21]Interpretation of Legislation Act 1984, s 35(b).
[22]Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].
[23]R v Young (1999) 46 NSWLR 681, 687–8 [15]. See also Project Blue Sky (1998) 194 CLR 355, 384 [78]; CTM v The Queen (2008) 236 CLR 440, 509 [237].
The principles governing the legal consequences of non-compliance with a statutory requirement which is expressed in mandatory terms were considered by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[24] In that case, the majority stated that the distinction between directory requirements, where breach did not lead to invalidity, and mandatory requirements, where it did, was no longer useful.[25] According to the majority, whether an act which is in breach of a condition required by a statute results in that act being invalid depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the stipulated condition.[26] The existence of such a purpose is to be ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition.[27]
[24](1998) 194 CLR 355.
[25]Project Blue Sky (1998) 194 CLR 355, 390 [93].
[26]Project Blue Sky (1998) 194 CLR 355, 388–9 [91], 390 [93].
[27]Project Blue Sky (1998) 194 CLR 355, 389 [91].
We see no reason why the principles in Project Blue Sky should not be applied to the issue raised in ground 1, namely, whether any non-compliance with the requirement in s 389K(4) of the CPA that an intermediary take an oath or make an affirmation will result in a substantial miscarriage of justice.
In Awad v The Queen,[28] the principles in Project Blue Sky were applied by Kiefel CJ and Gleeson J in determining whether a direction given to a jury, which was prohibited by s 44J(b) of the Jury Directions Act 2015, resulted in a substantial miscarriage of justice. They held that, for the purposes of s 276(1)(b) of the CPA, not all breaches of the section will result in a substantial miscarriage of justice, but that the breach in that case resulted in a substantial miscarriage of justice.[29]
[28](2022) 405 ALR 589, 593–4 [18]–[20]; [2022] HCA 36 (‘Awad’).
[29]Awad (2022) 405 ALR 589, 596 [29], 597–8 [34]–[40]; [2022] HCA 36. Gordon and Edelman JJ agreed with this conclusion: (2022) 405 ALR 589, 607–8 [86]–[91].
In the pre-Project Blue Sky case of Maher v The Queen,[30] after a jury was sworn, two further charges were added to the indictment. Although the appellant was re-arraigned, a new jury was not empanelled and sworn, nor was the existing jury re-sworn. This resulted in a breach of provisions of the Jury Act 1929 (Qld) and the Criminal Code 1899 (Qld) which required that a jury must be sworn to try the issues joined between the Crown and an accused on a count then appearing in an indictment. The High Court held that those statutory provisions governed the constitution and authority of the jury and were mandatory.[31] The Court held that the failure to comply with those provisions may have rendered the trial a nullity, but, in any event, it involved such a miscarriage of justice as to require that the appellant’s conviction be set aside.[32] The Court concluded that a finding of guilt by a jury on a charge in a case where the jury had not been sworn to try the issues on that charge constituted a failure to observe the requirements of the criminal process in a fundamental respect.[33]
[30](1987) 163 CLR 221 (‘Maher’).
[31]Maher (1987) 163 CLR 221, 233.
[32]Maher (1987) 163 CLR 221, 233.
[33]Maher (1987) 163 CLR 221, 234.
In R v Katsuno,[34] the High Court held that a longstanding practice, whereby the Chief Commissioner of Police disclosed prior convictions of potential jurors to the Director of Public Prosecutions to assist the Director in exercising the right of peremptory challenge, was unlawful. In that case, the prosecutor used the information to challenge a potential juror and the jury that was empanelled ultimately convicted the appellant. The majority stated that the failure to observe mandatory provisions relating to the constitution and authority of a jury is an example of a failure to observe the requirements of the criminal process in a fundamental respect.[35] However, the majority held that, although the disclosure of the information concerning potential jurors breached certain provisions of the now repealed Juries Act 1967, the breach did not involve a failure to observe a mandatory legislative provision relating to the constitution or authority of the jury.[36] The majority found that the jury was properly constituted and there was nothing in the Juries Act 1967 which required that the excluded potential juror not be challenged.[37] That was because a peremptory challenge could be made for any reason and therefore the challenge based upon the unlawful disclosure could not be viewed as a defect in the criminal process, much less a failure to observe a requirement of that process in a fundamental respect.[38]
[34](1999) 199 CLR 40 (‘Katsuno’).
[35]Katsuno (1999) 199 CLR 40, 60 [35].
[36]Katsuno (1999) 199 CLR 40, 62–3 [44], 65 [52].
[37]Katsuno (1999) 199 CLR 40, 62 [43]–[44].
[38]Katsuno (1999) 199 CLR 40, 63 [45].
In Baini v The Queen,[39] the High Court considered whether an erroneous refusal to sever a charge on an indictment and order a separate trial — with the consequence that prejudicial inadmissible evidence was before the jury — was an irregularity which resulted in a substantial miscarriage of justice within the meaning of s 276(1)(b) of the CPA. The majority described the kinds of cases falling within s 276(1)(b) as those ‘where there has been an error or an irregularity in or in relation to the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.’[40] The Court also referred to cases where ‘there has been a serious departure from the prescribed processes for trial’ and added that, in such cases, a substantial miscarriage of justice may occur even if a guilty verdict was open to the jury.[41] Later, the majority stated that this category encompasses departures ‘from trial processes (sufficiently described for present purposes as “serious” departures) whether or not the impact of the departure in issue can be determined’.[42]
[39](2012) 246 CLR 469 (‘Baini’).
[40]Baini (2012) 246 CLR 469, 479 [26].
[41]Baini (2012) 246 CLR 469, 479 [26], 480 [27], 481 [33]. It is not clear whether the majority considered this type of case as falling within subs 276(1)(b) or (c) or both.
[42]Baini (2012) 246 CLR 469, 481 [33].
In Awad, Gordon and Edelman JJ said the following about the abovementioned category of error discussed by the majority in Baini:
As to [this] category … where the conclusion is reached that an error is a fundamental one, which ‘goes to the root of the proceedings’ or amounts to ‘a serious breach of the presuppositions of the trial’, the demonstration of that error by the appellant will, of itself, establish a substantial miscarriage of justice. That is, a fundamental error will result in a substantial miscarriage of justice irrespective of whether the Court of Appeal considers that the error could have affected the result of the trial.[43]
[43]Awad (2022) 405 ALR 589, 605 [77]; [2022] HCA 36 (citations omitted).
Gordon and Edelman JJ went on to say:
The more absurd the outcome of requiring a new trial or an acquittal for any breach of a legislative provision, the less likely that Parliament intended that outcome. Although it might be expressed in mandatory terms, in circumstances where a statutory provision can be contravened in a variety of ways, with effects that range from the most serious to the very trivial, Parliament should rarely be taken to have intended that any breach of the provision be treated as a substantial miscarriage of justice. This reflects the position at common law.[44]
[44]Awad (2022) 405 ALR 589, 607 [88]; [2022] HCA 36.
As appears from [28] above, the principles of statutory interpretation permit reference to extraneous material. Part 8.2A of the CPA, which contains the provisions dealing with intermediaries set out above, was introduced by the Justice Legislation Amendment (Victims) Act 2018. The explanatory memorandum to the Justice Legislation Amendment (Victims) Bill 2017 (‘EM’) described the function of intermediaries in the following terms.
Intermediary schemes aim to protect and empower vulnerable witnesses to give their best evidence. Intermediaries are not advocates or support workers. Their role is to facilitate communication with the witness.[45]
[45]EM 13.
The EM noted that the introduction of an intermediary scheme in Victoria was ‘endorsed’ by this Court in Ward v The Queen.[46] In that case, the plurality discussed the difficulties that arise when cross-examining child witnesses and endorsed a 1997 report titled ‘Seen and Heard’ by the Australian Law Reform Commission. That report concluded that child witnesses could often be taken advantage of by lawyers because they were unable to match the linguistic skills of experienced lawyers and they were in a ‘hostile, alien environment.’[47] The plurality observed that the introduction of intermediaries in other jurisdictions was a radical change which sought to address the unfairness to which a child may be exposed in court proceedings.[48]
Facts relevant to ground 1
[46](2017) 54 VR 68 (‘Ward’). See EM 13.
[47]Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997), cited in Ward (2017) 54 VR 68, 93 [97].
[48]Ward (2017) 54 VR 68, 95–6 [104]–[107].
As we have already stated: the complainant gave evidence at a special hearing on 27 and 28 November 2019; Ms Wheelan acted as intermediary on 27 November 2019; Ms Collins acted as intermediary on 28 November 2019; and Ms Collins made an affirmation before acting as intermediary, whereas Ms Wheelan did not take an oath or make an affirmation. The complainant gave evidence remotely from a separate room, in the presence of the relevant intermediary.
While acting as an intermediary on 27 November 2019, Ms Wheelan made four interventions.
The first intervention occurred during the cross-examination of the complainant and involved a request by Ms Wheelan that defence counsel (who did not appear before us) rephrase a question. The relevant exchange was as follows:
[DEFENCE COUNSEL]: All right. Now, [complainant], you and [complainant’s cousin] used to play on the iPad at your grandmother’s house, didn’t you?---Yep.
And you used to access the internet?---M’hmm.
And you used to watch pornographic movies, didn’t you?---What? What did you say?
[MS] WHEELAN: Excuse me, Your Honour. If the question could be rephrased - - -
[DEFENCE COUNSEL]: All right. Yes.
HIS HONOUR: It - - -
[MS] WHEELAN: - - - without the tag?
HIS HONOUR: Yes, without the tag and is there a — yes.
[DEFENCE COUNSEL]: Without a tag.
[MS] WHEELAN: Thank you.[49]
[49]Transcript of Special Hearing (27 November 2019) 97.18–97.31.
The second intervention occurred in the course of the same phase of the complainant’s cross-examination and involved Ms Wheelan expressing an opinion that the complainant did not understand a question. The relevant exchange was as follows:
[DEFENCE COUNSEL]: All right. I think you told the policeman in the … first [Victorian] interview that there were people – there were a male and female on the images that you saw; is that right?---Yes, but that wasn’t in [Victoria]. That was in Queensland.
That was in Queensland, was it? Okay. And the people that you saw had no clothes on; is that right?---Yep.
And were they doing things with each other as well?---Yep.
Were they grownups?---Yes.
Yes. And were they – did you see them – I think you said in answer to one of the questions that the men were putting it in; is that right?---Huh?
Is that what you understood?---Oh, yeah.
[DEFENCE COUNSEL]: Sorry?
HIS HONOUR: Just go over that again. But tell me if you don’t - - -
[MS] WHEELAN: Excuse me, Your Honour.
[DEFENCE COUNSEL]: Yes.
[MS] WHEELAN: Yes.
HIS HONOUR: Yes.
[MS] WHEELAN: I don’t think [the complainant] understood that last question. Thank you.
[DEFENCE COUNSEL]: No, didn’t understand. All right. Okay.
The third intervention also occurred during the cross-examination of the complainant. It involved Ms Wheelan clarifying for the complainant that a question from the judge was directed at her. The relevant exchange was as follows:
HIS HONOUR: Just excuse me, [Defence counsel]. Are you talking now about what usually happened or about this one day that you remember?---He’s speaking to me?
[MS] WHEELAN: Yeah.
HIS HONOUR: Do you want me to say it again?---Yes, yes.
The fourth intervention occurred after the complainant completed her evidence on 27 November 2019 and involved an exchange between the judge, Ms Wheelan and defence counsel as to whether the complainant was showing signs of confusion and fatigue. Ms Wheelan made suggestions about how questions should be framed. It is not necessary to set out the exchange.
On 28 November 2019, before the cross-examination of the complainant resumed, the judge mentioned to counsel that Ms Wheelan had not been sworn, and sought submissions on the legal implications. The prosecutor and defence counsel indicated that it was undesirable to start the complainant’s evidence again. In response to a question from the judge, defence counsel stated that he did not want to ‘go through yesterday’s evidence again’ and agreed with the judge that it was not in anybody’s interests for that to occur. After some discussion between the judge and counsel, the prosecutor stated that she had received instructions that the failure to swear Ms Wheelan was a fundamental defect.
Defence counsel proposed that Ms Wheelan be sworn, provided with a copy of the transcript from when she acted as intermediary and state that the transcript contains the evidence given by the complainant in her presence. In response to a statement by the prosecutor that she might need to obtain further instructions, the judge stated that, in his view, to start again would be contrary to the interests of justice as it would affect the quality of the evidence and be unfair to the complainant and the applicant.
After a short adjournment, the prosecutor returned with further instructions. Instead of contending that the irregularity was fundamental, she suggested that she ask the complainant to adopt her VARE evidence again and the evidence she had given the previous day. After the new intermediary, Ms Collins, was affirmed, the judge granted the prosecutor leave to adduce further evidence in chief. The complainant then adopted the evidence in her three VAREs, and stated that she understood the questions she had been asked the previous day and that her answers to those questions were the truth.
On 5 December 2019, Ms Wheelan was sworn[50] and gave the following evidence:
[50]It appears that Ms Wheelan took the witness oath set out at [25] above.
[PROSECUTOR]: Can you state your full name?---Fiona Kim Wheelan.
And you’re an intermediary?---Yep.
Yes. On 27 November of this year, did you act as an intermediary for the evidence of [the complainant]?---Yes, I did.
And during her evidence, did you communicate [the complainant’s] questions and answers, and to make (indistinct) explanations required of you during her evidence?---Yes, I did.
Are you satisfied that [the complainant] was able to understand questions when they were explained to her by yourself and others?---Yes, I am.
Are you satisfied that [the complainant] provided clear and coherent evidence to the best of her ability?---Yes.
Thank you.
HIS HONOUR: Do you have any questions?
[DEFENCE COUNSEL]: No, Your Honour.
HIS HONOUR: All right. Thank you for coming to court. You’re excused?---Thank you.
Parties’ submissions on ground 1
It was common ground before us that the fact that Ms Wheelan was not sworn in breach of s 389K(4) of the CPA and s 22(1) of the Evidence Act (insofar as it is taken to apply to intermediaries[51]) constituted ‘an error or … irregularity’ within the meaning of s 276(1)(b) and that the issue raised by ground 1 is whether, as a result of that error or irregularity, there has been a substantial miscarriage of justice.
[51]See CPA s 389K(3) set out at [22] above.
The applicant submitted that his conviction could not stand because the trial process was flawed in a fundamental respect, namely, the failure to observe the procedures mandated by s 389K(4) of the CPA and s 22(1) of the Evidence Act. It was said that this was a fundamental irregularity which constituted a serious departure from the prescribed processes for trial and, accordingly, was a recognised example of a substantial miscarriage of justice as identified by the High Court in Baini.[52]
[52]See [34] above.
The applicant argued that what made the departure ‘fundamental’ was not the breach in a particular case but the nature, quality and importance of s 389K(4) of the CPA and s 22(1) of the Evidence Act. These provisions were said to be fundamental because of the significance of oaths and affirmations in criminal proceedings. Thus, according to the applicant, the failure to comply with the provisions was a fundamental defect in the trial, which resulted in the trial not being held according to law.
The applicant relied upon R v Brooks,[53] in which the New South Wales Court of Appeal held that evidence given by a witness who was not sworn was not admissible. The Court determined that the conviction in that case had to be quashed because the trial was not held according to law, resulting in a substantial miscarriage of justice. By analogy, the applicant contended that the fact that the complainant gave evidence on 27 November 2019 without a sworn intermediary being present meant that ‘there was evidence before [the] jury that should not have been there’.
[53](1998) 44 NSWLR 121, 122, 125.
The applicant submitted that, the extent to which an unsworn intermediary was actually involved in a hearing was irrelevant to the question of whether there had been a serious departure from the prescribed processes for trial. In making this submission, the applicant did not distinguish between a case where the witness who gave evidence in the presence of an unsworn intermediary was the complainant and a case where the witness was not the complainant. The applicant also did not make any reference to the nature of the evidence given by the witness or its importance to the particular case.
In oral submissions, counsel for the applicant conceded that ground 1 must fail if the Court was not satisfied that any breach of the requirement in s 389K(4) of the CPA and s 22(1) of the Evidence Act that an intermediary be sworn resulted in a substantial miscarriage of justice, irrespective of the actual role of an intermediary in a particular case. Counsel accepted that if the Court found that the question of substantial miscarriage of justice depended upon consideration of the actual role played by an intermediary in a particular case, the applicant could not satisfy the Court that the limited role of Ms Wheelan in the present case resulted in a substantial miscarriage of justice.
According to the applicant, it would not be correct to view an intermediary’s role as qualitatively different to an interpreter’s role. He contended that, in both cases, there was no provision in either the Evidence Act or the CPA which permitted an interpreter or intermediary to act without first being sworn.
In oral submissions, counsel for the applicant stated that he was not aware of any case which has considered the consequences of a failure by an intermediary to swear an oath or make an affirmation. In response to a question from the Bench about whether there were any cases where an interpreter had not been sworn, counsel stated that he was only aware of a decision of the District Court of Queensland, and he did not seek to rely upon it.[54] Counsel also informed the Court that there are Canadian authorities which have held that the failure of an interpreter to swear an oath will result in a substantial miscarriage of justice.[55] He acknowledged that those cases were decided having regard to the Canadian Charter of Rights and Freedoms.
[54]Counsel did not identify the decision of the District Court of Queensland to which he referred. It appears that the decision is Powe v Hansen [2021] QDC 12 (‘Powe’). That decision does not provide any assistance in the present case.
[55]Some Canadian authorities are discussed in Powe.
Counsel for the applicant submitted that, although the High Court in Awad applied the principles in Project Blue Sky,[56] the giving of a direction prohibited by s 44J(b) of the Jury Directions Act, which arose in Awad, was distinguishable from the non-swearing of Ms Wheelan in the present case due to the significance of oaths or affirmations in criminal trials.
[56]See [31] above.
Relying upon Subramaniam v The Queen,[57] the applicant argued that the fact that defence counsel did not object to Ms Wheelan acting as intermediary without being sworn was not relevant, as a fundamental irregularity cannot be waived. He also argued that the swearing of Ms Wheelan on 5 December 2019 did not remedy the serious departure from the prescribed process for trial on 27 November 2019. The applicant submitted that the complainant should have been recalled to give evidence again, in the presence of a sworn intermediary.
[57](2004) 211 ALR 1, 13 [42]; [2004] HCA 51.
The Crown submitted that whether the failure to swear an intermediary will invalidate the court process and result in a substantial miscarriage of justice was a question of fact and degree, which will depend upon an analysis of the role played by the intermediary in each case.[58] The Crown accepted that there may be cases where the failure to swear an intermediary does constitute a serious departure from the prescribed processes for trial and will result in a substantial miscarriage of justice.
[58]The Crown relied upon CMG v The Queen (2013) 46 VR 728, 749–50 [97]–[101].
The Crown contended that, in view of the limited involvement of Ms Wheelan, and the fact that defence counsel had agreed that the complainant did not need to be recalled, there was no substantial miscarriage of justice. According to the Crown, it would not be consistent with the purpose of the provisions of the CPA dealing with intermediaries to require a nine-year-old witness to be recalled for cross-examination where there had been such limited interventions by the intermediary.
The Crown accepted that there are some statutory requirements that cannot be waived by an accused. However, it argued that the irregularity in the present case did not go to the root of the proceeding or amount to a serious breach. The Crown submitted that a distinction should be drawn between the role of intermediaries and the role of a jury. Furthermore, the Crown contended that the role of an interpreter and that of an intermediary are not analogous because the interpreter acts as the vehicle for the witness’s evidence whereas an intermediary facilitates or assists in the effective giving of evidence by a witness.
Decision on ground 1
In our opinion, compliance with the requirement in s 389K(4) of the CPA that an intermediary must not act in that role in a proceeding unless he or she is sworn is not a fundamental requirement of a properly constituted criminal trial such that any breach will automatically result in a substantial miscarriage of justice. The same conclusion applies to the requirement in s 22(1) of the Evidence Act (insofar as it is taken to apply to intermediaries), that a person must either take an oath or make an affirmation before acting in that role in a proceeding. Whether a breach of these statutory provisions results in a substantial miscarriage of justice will depend on the circumstances of each case including, in particular, the role performed by the intermediary in each case.
As the principles applicable to s 389K(4) of the CPA are also applicable to s 22(1) of the Evidence Act (insofar as it is taken to apply to intermediaries), we will focus our analysis predominantly on s 389K(4) of the CPA.
The nature and quality of the mandatory requirement in s 389K(4) of the CPA and the consequence of non-compliance with that requirement must be determined by reference to the principles of statutory interpretation and the principles in Project Blue Sky which are summarised at [28] to [30] above.
The starting point is the text of s 389K(4) of the CPA. That section does not expressly state the consequences of non-compliance with the requirement that an intermediary be sworn. However, that requirement is expressed in unambiguous mandatory terms: a person ‘must not’ act as an intermediary unless he or she has taken an oath or made an affirmation in the prescribed form.
The text of s 389K(4) of the CPA needs to be considered in the context of the other provisions of s 389K and the CPA as a whole.
The other subsections of s 389K of the CPA also contain unambiguous mandatory requirements. The evidence of the witness ‘must be given’ in the presence of the intermediary (s 389K(1)). That evidence ‘must be given’ in circumstances in which the court, legal practitioners and the jury (if any) are able to observe communications between the witness and the intermediary and any assistance provided by the intermediary (s 389K(2)).
The legislative context includes s 22(1) of the Evidence Act because s 389K(3) has the effect that s 22(1) must be taken to apply to intermediaries. Section 22(1) is also unambiguously mandatory: before an interpreter acts in that role in a proceeding, he or she ‘must either take an oath or make an affirmation’.
The mandatory language in which s 389K of the CPA (including s 389K(3) which renders s 22(1) of the Evidence Act applicable) leaves no doubt that an intermediary being sworn is a very important requirement. Viewed in isolation, the language indicates that the fact that evidence was given in the presence of an intermediary who had not been sworn would result in a substantial miscarriage of justice. However, when s 389K is considered in the context of the other provisions of the CPA, that indication is significantly moderated.
Section 389F(1) of the CPA limits the role of an intermediary to evidence given in a criminal proceeding by witnesses who might have difficulty giving evidence or may be vulnerable in a court setting, namely, those who are under the age of 18 or who have a cognitive impairment. Section 389I and the form of oath in sch 1 to the CP Regulations make it clear that the role of an intermediary is to assist in the giving of evidence by such witnesses by providing explanations and making suggestions. The purpose of those explanations and suggestions is to ensure that the witnesses understand questions being put to them and that their answers are understood by the judge, the parties’ legal representatives and the jury (if any).
It is instructive to compare the role of an intermediary set out in s 389I(1) of the CPA, as illuminated by the oath set out in sch 1 to the CP Regulations, with the roles of a witness and an interpreter.
In the case of a witness, the witness’s words constitute the evidence in the trial. The witness swears to give truthful evidence or, in the case of a child or a person with a cognitive disability, promises to tell the truth.[59] The witness’s oath is fundamentally important in emphasising to the witness that he or she must tell the truth. Self-evidently, if a witness does not tell the truth and a judge — or in the case of a jury trial, the jury — relies upon the false evidence in determining the issues in the trial, a substantial miscarriage of justice may occur.
[59]See [16], [25] to [26] above.
In the case of an interpreter, the English words used by the interpreter to interpret the non-English words used by a witness stand as the evidence of the witness in the trial. The interpreter swears to ‘truly interpret the evidence’ and the interpreter’s oath is fundamentally important in emphasising to the interpreter that he or she must accurately communicate to the court in English the non-English words used by the witness. Self-evidently, if an interpreter does not accurately interpret the words of a witness and a judge — or in the case of a jury trial, the jury — relies upon the inaccurately interpreted words in determining the issues in the trial, a substantial miscarriage of justice may occur.[60]
[60]See Saraya v The Queen (1993) 70 A Crim R 515, 516 regarding the importance of accurate interpretation to ensuring a criminal trial is fair.
The importance of an interpreter ‘truly [interpreting] the evidence’ in accordance with the interpreter’s oath is heightened by the fact that, in many cases, the only person in the court room who is able to understand what the witness says in his or her own language is the interpreter. In such cases, the court is entirely dependent on the interpreter performing his or her function honestly and competently.
Unlike a witness, an intermediary does not give evidence and, unlike an interpreter, an intermediary’s words do not stand as the evidence of a witness. As we have already stated, the role of the intermediary is to assist a vulnerable witness to give evidence and for the participants in the trial to understand the witness’s evidence.
A witness will give evidence during the entire time that he or she is in the witness box and an interpreter will interpret during the entire time that a non-English speaking witness is in the witness box. However, the active role of an intermediary when a vulnerable witness gives evidence may vary in each case. At one end of the spectrum, an intermediary may remain silent for the entire time that a vulnerable witness gives evidence. At the other end of the spectrum, an intermediary may constantly intervene throughout a vulnerable witness’s evidence. Further, unlike the position of interpreters — where the court is usually not in a position to assess the accuracy of the English words chosen by the interpreter — the court will ordinarily be in a position to assess the quality and usefulness of the assistance provided by an intermediary.
The above analysis makes it clear that there are fundamental differences between the roles of witnesses and interpreters on the one hand and the role of intermediaries on the other hand. Accordingly, the implications for the validity of a criminal trial — and whether there has been a substantial miscarriage of justice — resulting from a witness or an interpreter not being sworn do not necessarily apply where an intermediary is not sworn. It follows that the cases dealing with witnesses and interpreters to which counsel for the applicant referred[61] are of limited, if any, assistance in the present case.
[61]See [51] and [56] above.
There is an even more fundamental difference between the role of a jury and the role of an intermediary in a criminal trial. The members of the jury are the sole judges of the facts in the case. They, and they alone, decide whether an accused is guilty or not guilty of the charges in the indictment, with obvious implications for the liberty of the accused. The oath taken by members of a jury is to ‘faithfully and impartially try the issues between the Crown and [the accused] in relation to all charges brought against [the accused] in [the] trial and give a true verdict according to the evidence’.[62] It is therefore not surprising that, in Maher, it was held that a miscarriage of justice requiring the setting aside of a conviction had occurred where a jury found an accused guilty of a charge in respect of which an oath was not administered to the jury.[63]
[62]Juries Act 2000, sch 3.
[63]See [32] above.
Having considered the text of s 389K(4) of the CPA in the context of the CPA as a whole, we now turn to the purpose of that section. Self-evidently, the purpose of s 389K(4) is to ensure that only an intermediary who has been sworn is present and provides assistance to a vulnerable witness giving evidence.
However, the specific purpose of s 389K(4) of the CPA must be considered in the context of the purpose of the legislative scheme for intermediaries in div 2 of pt 8.2A of the CPA. The purpose of the scheme is readily apparent from the provisions of that part, which are set out at [18] to [23] above, and the extract from the EM, which is set out at [37] above. That purpose is to assist vulnerable witnesses to give evidence to the best of their ability and to protect them from questions which are unsuitable in the light of their age or cognitive impairment.
We now turn to the consequences of the two alternative constructions of the requirement in s 389K(4) of the CPA that an intermediary be sworn. The first construction — which the applicant submitted we should adopt — is that the requirement is so fundamental to a criminal trial that any breach automatically results in a substantial miscarriage of justice. The second construction — which the Crown submitted we should adopt — is that whether a breach results in a substantial miscarriage of justice depends on the circumstances of each case including, in particular, the role performed by the intermediary in each case.
In our opinion, adoption of the first construction would undermine rather than further the purpose of div 2 of pt 8.2A of the CPA. That is because if every breach of s 389K(4) — even where an intermediary does not intervene at all — results in a substantial miscarriage of justice, the vulnerable witness who gave evidence in the presence of an unsworn intermediary would need to give evidence again in a new trial. Far from protecting vulnerable witnesses when giving evidence in a criminal trial, such a construction would result in them having to experience the stress of giving evidence on more than one occasion. In cases where an unsworn intermediary did not intervene at all, or only did so to a very minor extent, it is difficult to see that any useful purpose would be achieved by requiring the affected vulnerable witness to give evidence again. That is especially so if the vulnerable witness is not a vital witness — such as a complainant — but a witness who gives evidence of an incidental nature. In this respect, the observations of Gordon and Edelman JJ in Awad set out at [36] above are particularly apt.
The serious potential adverse consequences that would result from adoption of the first construction to which we have referred would be avoided by adoption of the second construction. In accordance with that construction, if an intermediary does not intervene at all or does so to a very minor extent, the court could find that there has not been a substantial miscarriage of justice and therefore the vulnerable witness would not need to give evidence again. That is especially so where the vulnerable witness gives evidence of an incidental nature. Conversely, if an intermediary’s interventions were such as to materially affect a vulnerable witness’s evidence or materially constrain the examination of the witness — such as by hampering legitimate cross-examination — the court could find that there has been a substantial miscarriage of justice which would require the vulnerable witness to give evidence again.
As appears from [54] above, counsel for the applicant effectively conceded that a substantial miscarriage of justice could not be established in the present case if the Court were to reject the first construction of s 389K(4) of the CPA and therefore, in such a case, ground 1 could not be made out. That concession was properly made. The participation of Ms Wheelan in the present case was so minimal that it could not possibly have caused any prejudice to the applicant, let alone a substantial miscarriage of justice. It is apparent from [45] to [48] above that defence counsel recognised this.
In the light of our conclusion that no substantial miscarriage of justice occurred in the present case, it is not necessary for us to consider any issues of waiver arising from the position adopted by defence counsel.[64] It is also not necessary for us to consider the relevance, if any, of the sworn evidence given by Ms Wheelan on 5 December 2019, after she ceased acting as intermediary.[65] It suffices to say that, if we had adopted the first construction, the substantial miscarriage of justice arising from Ms Wheelan’s failure to take an oath or make an affirmation on 27 November 2019 could not have been overcome either by any purported waiver by defence counsel or by the sworn evidence Ms Wheelan gave on 5 December 2019.
[64]The limited form of waiver in s 389J(3) of the CPA (see [21] above) applies to the giving of evidence without the assistance of an intermediary rather than to the giving of evidence with the assistance of an intermediary who is not sworn.
[65]See [48] above.
It follows that ground 1 must be rejected.
Grounds 2 and 3: Adequacy of evidence for charges 2 and 6
Statutory provisions and legal principles relevant to grounds 2 and 3
Grounds 2 and 3 rely upon s 276(1)(a) of the CPA, which provides that the Court of Appeal must allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Section 276(1)(a) of the CPA requires this Court to ask itself whether we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of charges 2 and 6.[66] In M v The Queen, the majority observed:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[67]
[66]M v The Queen (1994) 181 CLR 487, 493–5 (‘M’).
[67](1994) 181 CLR 487, 494–5 (citations omitted).
In Pell v The Queen, the High Court endorsed the approach in M, and said:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[68]
[68](2020) 268 CLR 123, 145 [39] (citations omitted). The approach in M was also recently endorsed by the High Court in Dansie v The Queen (2022) 403 ALR 221, 224-226 [10]-[17]; [2022] HCA 25.
In the present case, in relation to charge 2, the applicant contends that, even if the complainant’s evidence is accepted as being credible and reliable, when it is considered as a whole — including its internal inconsistencies — it is not sufficient to establish, beyond reasonable doubt, that the act the subject of that charge occurred. In relation to charge 6, the applicant contends that the complainant’s evidence, considered as a whole, is so improbable, internally contradictory and inconsistent with other evidence, that it is incapable of proving his guilt beyond reasonable doubt in relation to that charge. Thus, the critical issue in the present case is whether, considered in its entirety, the evidence referable to charges 2 and 6, respectively, could support a finding that the applicant masturbated his penis in the presence of the complainant on each occasion.
Complainant’s evidence relevant to charges 2 and 6
At the special hearing, the complainant stated during examination in chief, and again in re-examination, that she told police the truth in her VAREs.
In relation to charge 2, the complainant gave the following evidence during her VARE. She and the applicant attended a coastal town to enable her to ‘shoot an ad’ for a store that sold children’s clothes. She stayed in a hotel room with the applicant and they each slept on their own bed. After she got out of the shower, she saw the applicant ‘playing with his — this thing and then white stuff … shooted out’. The applicant did not try to put ‘his — this thing’ on her ‘this thing’.
During cross‑examination at the special hearing, the complainant gave evidence that she had to share a bed with the applicant in the coastal town. By reference to a body map, she said that, while they were in the bed, the applicant ‘tried to put here into here’. In response to defence counsel asking if anything else happened with the applicant, the complainant said ‘No’. Defence counsel put to her that the applicant said that nothing happened in the hotel room. She replied ‘[t]hat’s not true’.
During re-examination, in response to questions from the prosecutor, the complainant said that she had only one shower at the coastal town and that, when she went back into the room after the shower, the applicant was on the bed ‘just on his phone’.
In relation to charge 6, the complainant stated in her VARE that, on the last occasion she attended the applicant’s work, he asked her to lie down on the couch and put her legs up. She said that he then removed her underpants and tried to get ‘his — this thing’ in hers. She told him to stop because it started hurting, and he did so. When she was asked whether the applicant did anything else, she said ‘Nuh’ and that ‘[s]traight after then [she] put [her] pants back on and then [they] went to the shops.’ Later, she stated that they did not go to the shops straight away because ‘he started playing with his — this thing’ while she was on the computer watching a video game. She said that ‘he was playing with it and then this white stuff came out of his — this thing’.
At the special hearing, the complainant gave the following evidence in cross‑examination. The applicant’s office was not really busy. People would just come into the office, but they used to knock on the door before they came in. She could not remember the last time that she was at the applicant’s office. She would sometimes draw and sometimes make ‘trendy videos’ when she was sitting on the couch in his office. He also did inappropriate things with her on the couch twice or three times. She did not know how to say what he did, but it was more than watching rude movies. Defence counsel put to her that the applicant said that nothing ever happened at his office. She replied ‘[n]o, that’s not true’.
The prosecutor did not re-examine the complainant in relation to the offending the subject of charge 6.
Other prosecution evidence relevant to charge 6
Ms James gave the following evidence in response to questions from the prosecutor.[69] She left the complainant alone with the applicant at his office one to three times. It was not for a long time and she was never far away from them. She, the applicant and her brother, who worked in the applicant’s business, had a key to the office. The cross-examination by defence counsel is not presently relevant.
[69]The judge gave leave to the prosecutor to cross-examine Ms James pursuant to the ‘unfavourable witness’s provisions of s 38 of the Evidence Act.
Nina Bartholomew, Amanda Zima and Narelle Odina gave evidence about the complainant’s complaints regarding the applicant’s offending along the lines set out at [10] above. The complaint evidence did not include statements by the complainant that the applicant had masturbated in her presence.
Defence evidence relevant to charges 2 and 6
In relation to charge 2, the applicant gave the following evidence in chief. He and the complainant shared one bed in the coastal town. He thought that she had one shower while they were there. He denied that, after her shower, she saw him sitting on the bed masturbating. He also denied that he tried to penetrate her in the bed during the night. He repeated the denials during cross-examination.
In relation to charge 6, the applicant gave the following evidence in chief. He was the building manager for a shopping centre which had about 20 tenants and about 300 staff in the building. In this role, he was responsible for the security of the shopping centre. The complainant had been to his office with him when no one else was there. He did not stop work while she was in the office. She would keep herself amused by drawing and playing games on his laptop. Approximately eight people, including he and Ms James, had keys to the office and could not be locked out of the office. He denied that he had removed the complainant’s underwear and tried to penetrate her on the couch in his office.
During cross-examination, the applicant gave the following evidence. The deadbolt to his office could not be locked to prevent people with keys coming into the office. If somebody used the key to get in, he would hear the key in the door. The window in the office was one way, which meant that a person in the office could see people approaching the office but they could not see into the office. He denied: playing pornographic videos in his office while the complainant was present; making her watch the videos; masturbating on the couch while the videos were playing; taking off the complainant’s underwear on the last occasion that she was in his office and attempting to penetrate her vagina with his penis.
In general cross-examination, the applicant stated that he has suffered from erectile dysfunction since 2012 and that, since 2016, he had difficulty getting an erection and ejaculation was ‘very minimal’.
In re-examination, the applicant stated that the position of the office window was such that a person could approach the door of the office from a particular direction without being seen through the window.
Parties’ submissions on grounds 2 and 3
In relation to charge 2, the applicant submitted that the prosecution case depended on the complainant’s evidence. The applicant contended that, as the evidence the complainant had given in her VARE was ‘completely contrary’ to the evidence that she gave at the special hearing, the jury, acting reasonably, should have had a reasonable doubt about his guilt. The applicant relied upon the following differences in the complainant’s account in support of that contention:
(a)In her VARE, the complainant stated that there were two beds in the hotel room, whereas at the special hearing she said that there was one bed.
(b)In her VARE, the complainant stated that the applicant did not try to penetrate her at the coastal town, whereas at the special hearing she said that he did try to penetrate her.
(c)In her VARE, the complainant said that, when she came out of the shower at the coastal town, she witnessed the applicant masturbating his penis, whereas at the special hearing she said that he was just on his phone.
The applicant contended that, notwithstanding that the VARE occurred closer to the event in question, there was nothing in the quality of the evidence that informed charge 2 that explained why the jury might have accepted the evidence from the VARE and not the evidence at the special hearing.
The applicant argued that there was no other evidence which would have enabled the jury to accept the complainant’s VARE evidence instead of what she said at the special hearing. The applicant drew attention to the fact that the evidence of complaints made by the complainant went to allegations that he had touched her, not that he had masturbated in her presence.
In relation to both charges 2 and 6, the applicant submitted that the guilty verdicts on those charges were inconsistent with the verdicts of not guilty on the remaining charges. The applicant contended that the quality of the evidence upon which those charges was based was not so different from the evidence relating to charges 2 and 6 so as to explain the inconsistent verdicts in a logical way. Doubts about the reliability of the complainant’s evidence referable to the other charges were said to be relevant to the assessment of the reliability of her evidence referable to charges 2 and 6. The applicant also relied upon evidence of his denials and his prior good character.
In relation to charge 6, the applicant argued that, as the offending the subject of charge 6 was said to have occurred immediately after the alleged offending the subject of charge 5 — for which he was found not guilty — the verdict of guilty on charge 6 was inconsistent with the verdict on charge 5.
According to the applicant, the surrounding circumstances concerning charge 6 meant that it was improbable that the offending occurred. Those circumstances were said to include the fact that the offending allegedly occurred in an office to which other people had keys and the fact that Ms James would never be far away from the office. The applicant accepted that those circumstances did not make it impossible for the offending to take place, but stated that the improbabilities were a factor that this Court could consider when determining whether the jury’s guilty verdict on charge 6 was unreasonable.
The Crown submitted that the jury were entitled to consider the entirety of the evidence, including the complainant’s evidence in the VARE and the special hearing. The Crown contended that the jury had the benefit of being able to observe the complainant, including when and how the complainant’s evidence changed as she became fatigued.
The Crown argued that, at the special hearing, the complainant did not retract her evidence from the VARE regarding the offending the subject of charge 2, but simply did not mention it. The Crown relied upon the standard jury direction that experience shows that people may not remember all the details of a sexual offence or may not describe it in the same way each time, and that it is common for there to be differences in accounts of a sexual offence. The Crown submitted that the situation would be different if, at the special hearing, the complainant had actually retracted the evidence of the offending she had given in the VARE. According to the Crown, it was open to the jury to accept the complainant’s evidence in chief relating to charge 2.
The Crown submitted that the verdicts of not guilty on charges 1, 3, 4, 5 and 7 were not inconsistent with the verdicts of guilty on charges 2 and 6. It was said that the quality of the evidence relating to charges 3 and 4 was different from that relating to charges 2 and 6 in that it was less precise, less detailed and not explored in the same manner as the other charges. The Crown contended that this meant that there was a logical explanation for the jury entering verdicts of not guilty on charges 3 and 4.
The Crown argued there was a logical explanation for the acquittals on charges 1 and 7. The Crown drew attention to the following circumstances: on the prosecution case, those offences occurred when the applicant, the complainant and Ms James were in bed together; and the complainant’s mother was called by the prosecution but did not give evidence in support of such offending occurring. According to the Crown, these circumstances gave the jury a logical basis upon which to return a verdict of not guilty on charges 1 and 7. It was said that those verdicts were not inconsistent with the verdicts of guilty on charges 2 and 6.
The Crown argued that the conviction on charge 6, which was said to have occurred immediately after charge 5, did not mean that the jury must have rejected the complainant’s evidence. According to the Crown, when the complainant was giving evidence in relation to charge 5, she had begun to exhibit fatigue and her evidence lacked precision and detail. However, so it was submitted, at the same time the complainant did not recant the evidence that she had given in her VARE and denied that the applicant had done nothing inappropriate while she was in his office. The Crown submitted that the different character of the evidence and the lack of precision and detail relating to charge 5 meant that there was a logical basis upon which the jury could return a verdict of not guilty on charge 5 but guilty on charge 6.
The Crown contended that the mixed verdicts were consistent with a rational approach in which the jury separately considered each charge. The Crown relied upon Woods v The Queen[70] and contended that a verdict of acquittal does not mean that a jury found the evidence on that charge to be unsatisfactory, unreliable or untruthful.
[70][2019] VSCA 259, [75]–[77].
The Crown argued that other matters raised by the applicant such as his prior good character and denials, and the surrounding circumstances of the offending which were said to make the offending improbable, were matters properly in the domain of the jury to consider.
In response to questions from the Bench, the Crown submitted that although charges 2 and 6 were the only non-contact offences, it did not follow that if this Court were to uphold the appeal on one of the charges, it would be inconsistent to not uphold the appeal on the other. The Crown referred to the fact that, although the two charges involved non-contact offences, the offending was committed in different locations and in different circumstances. Accordingly, it was said that an acquittal on one of the charges would not infect the other.
Decision on grounds 2 and 3
We will deal with ground 2 prior to discussing ground 3.
In our opinion, ground 2 is made out.
As required by M, we have examined the entirety of the evidence referrable to charge 2, which consisted largely of the evidence of the complainant and the applicant. We are of the view that, on the basis of the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant masturbated his penis or that he ejaculated in the presence of the complainant in the hotel room in the coastal town. The jury in the present case viewed a recording of the evidence of the key witnesses — including the complainant, the applicant, Ms James and the complaint witnesses referred to at [10] above — rather than seeing them in person.[71] Assuming that the jury assessed the complainant to be a credible and reliable witness, nevertheless, we are satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt.
[71]As discussed at n 14 above, there were two trials. A recording of the evidence of some of the witnesses who appeared in person in the first trial (including the applicant, Ms James and the complaint witnesses referred to at [10] above) was played at the second trial.
Considered in isolation, the complainant’s evidence in her VARE — that she saw the applicant playing with his penis and ‘white stuff’ shoot out when they were at the coastal town — was sufficient to establish that the applicant had engaged in sexual activity in the presence of a child under 16, and thus was guilty of the offence the subject of charge 2. However, that evidence must be considered in the context of the complainant’s evidence at the special hearing. At that hearing, she did not expressly recant this aspect of her evidence in her VARE. On the contrary, she made a broad statement that she told the police the truth in her VAREs. Nevertheless, in her evidence at the special hearing, she effectively denied that the applicant masturbated in her presence during their stay at the coastal town, for the following reasons:
(a)During cross-examination, after indicating by reference to a body map that the applicant tried to insert his penis into her vagina while they were in the bed, she was asked whether anything else happened with the applicant, to which she answered ‘No’.
(b)Subsequently, in re-examination, the complainant stated that when she entered the room after having a shower, the applicant was on the bed ‘just on his phone’. The relevant exchange is as follows:
[PROSECUTOR]: And after you had that shower, what happened after you got out of the shower?---I got dressed and then we had to go, um, [to] one of the places that we had to go.
…
[PROSECUTOR]: Okay. I should have been more specific. After you got out of the shower and went back into the room, where was [the applicant]?---On the bed.
[PROSECUTOR]: And was [the applicant] doing anything?---He was just on his phone.
This is not a case where, at a special hearing, a complainant has repeated in broad terms the circumstances of the offending alleged in a VARE but has left out some details or provided different details. Nor is it a case where, at a special hearing, a complainant has stated that he or she could not remember what had occurred. This is a case where, both in cross-examination and re-examination, when the complainant was directed to the question of what the applicant did after she left the shower, she effectively resiled from the proposition that the offending the subject of charge 2 — the applicant masturbating in her presence — occurred.
It is open to a jury to accept some parts of a witness’s evidence and reject other parts. In some cases, it is open to a jury to be satisfied beyond reasonable doubt on the basis of a complainant’s evidence in chief that the alleged offending took place notwithstanding a failure to positively affirm that evidence at a special hearing or due to inconsistencies between the complainant’s evidence in a VARE and at a special hearing. However, the present case does not involve a mere failure to affirm or inconsistencies between the complainant’s evidence in her VARE and at the special hearing, which the jury could take into account in assessing her credibility and the reliability of the account she gave in her VARE. Rather, in the present case, the complainant’s evidence at the special hearing in effect amounted to a disavowal of the proposition that she saw the applicant masturbating in the hotel room in the coastal town.
In our opinion, the transcript of the complainant’s evidence at the special hearing does not support the Crown’s contention that the difference between that evidence and the evidence given in the VARE concerning charge 2 could be explained by fatigue on the part of the complainant.
It is apparent from the transcript that, shortly after the special hearing resumed on 27 November 2019 following the luncheon adjournment, the judge, the prosecutor and Ms Wheelan were of the view that the complainant was ‘flagging’ or showing signs of fatigue. She was also indicating a reluctance to talk about the details of what had happened. However, the series of cross-examination questions which gave rise to concerns about how the complainant was feeling related to the events the subject of charges 5 and 6 rather than charge 2. Further, shortly after these concerns emerged, the judge adjourned the hearing until the following day, 28 November 2019. On that day, the complainant appeared to give evidence in a composed manner. It follows that, to the extent that the complainant exhibited signs of fatigue during her cross-examination, this did not occur in relation to the events the subject of charge 2.
For the reasons we have already provided, we do not accept the Crown’s submission that the complainant simply did not mention witnessing the applicant masturbate rather than resiling from the proposition in her evidence in the VARE that he did so. The complainant was given an opportunity during both cross-examination and re-examination to state whether anything in addition to the alleged attempt at penile-vaginal penetration had occurred, and, in response, she stated that either nothing else happened or that the applicant was engaged in the innocuous conduct of using his phone.
For the above reasons, the jury’s verdict of guilty on charge 2 will be set aside and a judgment of acquittal will be entered in its place.
We now turn to ground 3, which concerns the guilty verdict on charge 6.
In our opinion, ground 3 is not made out.
The complainant’s evidence in her VARE — that she saw the applicant playing with ‘his — this thing’ and ‘white stuff’ shoot out of ‘his — this thing’ when they were in his office — was clearly sufficient to satisfy the jury beyond reasonable doubt that the applicant had engaged in sexual activity in the presence of a child under 16, and thus he was guilty of the offence the subject of charge 6. The complainant did not say anything at the special hearing which contradicted the account she gave in the VARE or which cast doubt on the veracity of that account. She made a broad statement that she told the police the truth in her VAREs and, in response to a proposition from defence counsel that nothing ever happened at the applicant’s office, she replied ‘[n]o, that’s not true’.
We reject the applicant’s submission that the surrounding circumstances concerning charge 6 meant that it was improbable that the offending occurred. Although the circumstances upon which the applicant relied meant that the applicant risked being caught offending, some child sex offenders are prepared to court a substantial risk of being discovered by other adults.[72] In any event, those circumstances were not such as to deprive the applicant of the opportunity to commit the offending the subject of charge 6. He was left alone with the complainant and, even though Ms James was nearby and was not absent for a lengthy period, he had sufficient time to commit the offending. Further, the applicant was able to have some warning of a person seeking to enter his office by hearing a key being placed in the lock and by looking through the one-way glass window.
[72]Hughes v The Queen (2017) 263 CLR 338, 361 [57]-[58].
We agree with the Crown’s submissions as to why the jury’s guilty verdict on charge 6 is not unreasonable by reason that it is inconsistent with the verdicts of not guilty on all the other charges other than charge 2.
The fact that the other charges, other than charge 2, involved contact offences provided a rational basis for the jury to have a reasonable doubt about whether the applicant had committed them but to nevertheless not entertain such a doubt in relation to charge 6.[73] In relation to charges 1 and 7, the jury could have had a reasonable doubt about the applicant’s guilt on the basis of his evidence, and that of Ms James, that the complainant was required to wear a nappy when she slept on their bed.
[73]See the principles governing inconsistent verdicts in MacKenzie v The Queen (1996) 190 CLR 348, 365-368.
The fact that we have held that the jury should have entertained a reasonable doubt in relation to the non-contact offending the subject of charge 2 does not mean that the jury should also have entertained such a doubt in relation to charge 6. As we have explained, the reason why we have a reasonable doubt in relation to charge 2 — namely, the complainant’s effective disavowing of her evidence in the VARE during the special hearing — does not apply to charge 6. Further, as tendency evidence in the present case did not assume any prominence, a finding of not guilty on charge 2 does not materially weaken the prosecution case in support of charge 6.
We accept that all of the charges depended upon the jury being satisfied that the complainant was credible and her evidence was reliable. However, the jury were required to assess the evidence referable to each charge separately and were entitled to accept some parts of the complainant’s evidence and entertain a reasonable doubt in relation to other parts of her evidence. Further, an acquittal in respect of some charges does not mean that the jury found that the complainant lacked credibility or that her evidence was unreliable. Rather, an acquittal simply meant that, on the whole of the evidence, the jury were not satisfied of the applicant’s guilt on the relevant charges beyond reasonable doubt.
The jury’s verdict of guilty on charge 6 means that the jury accepted the complainant’s evidence in relation to that charge. The applicant’s good character and the fact that he gave evidence denying the offending did not mean that the jury could not, on the whole of the evidence, be satisfied of the applicant’s guilt beyond reasonable doubt.
It is unclear from the complainant’s evidence that the offending the subject of charge 6 was said by her to have followed immediately after the offending the subject of charge 5. Even if such temporal proximity was said to exist, for the reasons we have already given, the fact that the jury were not satisfied beyond reasonable doubt that the offending the subject of charge 5 occurred does not mean that the jury was required to have a reasonable doubt about the offending the subject of charge 6. The nature of the alleged offending and the quality of the complainant’s evidence differed in relation to the two charges.
Conclusion and resentence
As we have already stated, our conclusion that ground 2 is made out means that the conviction on charge 2 must be set aside and a judgment of acquittal must be entered on that charge. As a consequence, the sentencing discretion is reopened.
It will be recalled that, on 22 July 2022: the applicant was sentenced to 16 months’ imprisonment on each of charges 2 and 6; the sentence on charge 2 was treated as the base sentence; cumulation of 4 months was ordered in respect of the sentence on charge 6; the total effective sentence was 20 months’ imprisonment; and a non-parole period of 10 months was fixed. Not including today, the applicant has served a total of 265 days (8 months and 20 days) of the total effective sentence.
In our opinion, the standard sentence of 4 years’ imprisonment should not apply for the offending the subject of charge 6 and an appropriate sentence for that offending is in the order of 9 months’ imprisonment.[74] That is so for two reasons. First, that offending involved a single instance of very brief non-contact sexual activity which falls at the lower end of the spectrum of seriousness. Secondly, the applicant is able to call in aid the significant mitigating factors to which the judge referred in his sentencing remarks.[75] As the applicant has already served 265 days (not including today), we will sentence him to time served on that charge.
[74]See n 2 in relation to the standard sentence.
[75]Sentencing Remarks [2022] VCC 1176.
For the above reasons, we will make orders to give effect to the conclusions summarised at [5] above.
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