JD v Tasmania
[2023] TASCCA 11
•10 October 2023
[2023] TASCCA 11
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | JD v Tasmania [2023] TASCCA 11 |
| PARTIES: | JD |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 1819/2022 |
| DELIVERED ON: | 10 October 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 25 August 2023 |
| JUDGMENT OF: | Estcourt J, Pearce J and Jago J |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Improper admission or rejection of evidence – Tendency evidence – Evidence of applicant’s tendency to have a sexual interest in young or adolescent females within his care – Probative value of tendency evidence significant – Risk of jury improperly using or giving disproportionate weight to tendency evidence sufficiently addressed by trial judge’s directions – Probative value outweighed danger of unfair prejudice – No miscarriage of justice.
Evidence Act 2001 (Tas), ss 97, 101(2).
Pattison v Tasmania [2017] TASSCA 13, distinguished.
R v Dennis Bauer (a pseudonym) [2018] HCA 40, 266 CLR 56; TL v The King [2022] HCA 35, considered;
McPhillamy v R [2018] HCA 52; 92 ALJR 1045, referred to.
Aust Dig Criminal Law [3471]
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Matters submitted by counsel to establish doubt as to applicant’s guilt frequently encountered in historic cases of sexual assault against children – Complainant’s account circumstantially supported by tendency evidence – Open to the jury to be satisfied beyond reasonable doubt that applicant was guilty.
Pell v The Queen [2020] HCA 12; 268 CLR 123, distinguished.
Tringrove v Tasmania [2014] TASCCA 7; M v The Queen (1994) 181 CLR 487; Dansie v The Queen (2002)
HCA 25, 403 ALR 221; R v Baden-Clay [2016] HCA 35, 258 CLR 308, referred to.
Aust Dig Criminal Law [3476]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Consideration of summing up as a whole – Allegation of inadequate summing up by trial judge – Summing up took place on same day as detailed address from defence counsel – defence counsel did not request further relevant directions from the trial judge after summing up – Summing up was adequate in the circumstances – No miscarriage of justice.
Anderson v Tasmania [2020] TASCCA 11; Lambert and Stokes v Tasmania [2007] TASSC 76, referred to.
Aust Dig Criminal Law [3479]
REPRESENTATION:
Counsel:
Applicant: K Baumeler Respondent: J Ransom
Solicitors:
Applicant: Logan & Partners Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASCCA 11 |
| Number of paragraphs: | 109 |
Serial No 11/2023 File No 1819/2022
JD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J JAGO J 10 OCTOBER 2023 |
| Orders of the Court: |
1. Leave to appeal granted
2. Appeal dismissed
Serial No 11/2023 File No 1819/2022
JD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J 10 OCTOBER 2023 |
| The application |
1 Pursuant to s 401(1)(b) of the Criminal Code the applicant JD seeks the leave of the Court to appeal against his conviction by Geason J on 6 July 2022, of the crime of persistent sexual abuse of a child contrary to s 125A(2) of the Code.
2 The five proposed grounds of appeal are as follow:
Ground 1 - The learned trial judge erred in admitting the evidence of alleged tendency. Ground 2 – The verdict of the jury was unreasonable and incapable of being supported by the evidence. Ground 3 - The learned trial judge erred in failing to adequately sum up to the jury the evidence led on the trial.
Ground 4 -
The learned trial judge erred in failing to reinforce the applicant's counsel's submissions to the jury that the evidence of the complainant was to be found not only in the oral evidence given at trial but also in a recorded interview that had been tendered on the trial.
Ground 5 - That the trial judge erred in failing to adequately and fully put the case for the applicant in
the summing up to the jury.
The evidence at trial
3 The complainant was the applicant's biological daughter. She was aged between 13 and 16 years during the period of offending alleged in the indictment.
4 The State relied on four unlawful sexual acts, three of indecent assault and one of (digital) rape
as follows:
• Taking the complainant's hand and placing it on his erect penis. • Touching the complainant's breasts and/or vagina under her clothing. • Touching the complainant's breasts and/or vagina under her clothing. • Penetrating the complainant's vagina with his finger. 5 A fifth occasion of sexual misconduct was relied upon as relevant uncharged contextual conduct. On this occasion it was alleged that the applicant requested the complainant to make a photocopy of her breasts and send it to him and to take a photograph of herself in the shower and send it to him.
6 All four of the alleged occasions were said to have occurred at the family's homes in Longford and Prospect. The former being the principal residence of the family and the latter being a residence at which the family stayed from time to time.
7 All four occasions were said to have involved the applicant entering his daughter's bedroom at times when she was in there alone and asleep and committing the acts alleged as particularised.
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8 There were no other witnesses to the alleged conduct complained of by the complainant and the State's case relied primarily on the complainant's evidence being accepted by the jury as truthful and reliable.
9 Equally, no other witnesses corroborated the conduct comprising the fifth occasion, and again proof of this relied primarily on the complainant's evidence being accepted by the jury.
10 A tendency notice was filed seeking to allow the State to lead evidence of the applicant having a sexual interest in young or adolescent females in his care and a preparedness to act upon that interest.
11 It was sought to rely upon the tendency across the four occasions of alleged unlawful sexual conduct, and to also lead the evidence of the fifth occasion as showing a sexual interest in the complainant.
12 The State sought to call two witnesses, AL, the applicant's daughter born to a previous relationship and CL, the sister of the applicant's partner who resided with the family for a period of time.
13 The evidence sought to be led from AL was that when she was aged between 10 and 12 years, the applicant would have her sit on his lap at the kitchen table and touch her breasts under her clothing.
14 The evidence sought to be led from CL was that on an occasion on Longford Show Day in 2016 the applicant had asked her whether he could touch her breasts. Further evidence sought to be led was that Snapchat exchanges had occurred between CL and the applicant in which he asked her to send him nude photos of herself while she was in the shower.
15 The admissibility of the tendency evidence sought to be led was the subject of a voir dire held prior to the trial on 17 May 2022. The evidence was ruled admissible and the learned trial judge published his written ruling on 21 December 2022. The ruling was published to the parties only and in view of the fact that it is referred in counsel's submissions.
Ground 1
16 It is conceded by counsel for the applicant, Ms Baumeler, that the evidence of the fifth occasion was admissible as context evidence, if not also as tendency evidence. It is also conceded that his Honour was correct to direct the jury that they could consider tendency reasoning when considering whether occasions one to four, in fact occurred.
17 This proposed ground of appeal seeks only to challenge the admission of the evidence of AL and CL to prove a tendency, namely that the applicant had a sexual interest in young or adolescent females within his care and a preparedness to act upon that interest.
18 As to CL's evidence, the applicant submits that both asserted instances involving her went no further than a request, and it was not alleged that the applicant had in fact touched her in a sexual way, although it is conceded that her evidence did provide some context and corroboration to the uncharged conduct of the applicant. The applicant submits that CL was not a biological relation of the applicant and submits that if her evidence was accepted, then requests were merely made but were never acted upon. It is submitted that the evidence was of little use to the jury in determining whether the applicant was prepared to enter his biological daughter's bedroom and commit the acts alleged. It is submitted that the evidence was highly prejudicial, and of little value.
19 I regard those submissions as unworthy. This was wholly unremarkable tendency evidence. Moreover, to the extent to which the applicant invokes Pattison v Tasmania [2017] TASCCA 13, this was clearly not a case where the State was attempting to lead on a tendency basis, evidence which merely related to a person's state of mind as showing a motive to commit a particular crime, (the distinction explained by Wood J in that case).
20 As to AL's evidence, the applicant submits that there was "some debate" as to her age at the time that she said the events she described occurred. However, it is submitted, "it appears" that she might have been 10, still in primary school and had not gone through puberty or at least had not
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developed breasts. This, it is said, rendered it "incorrect to characterise the touching as to the breasts
and that this error continued into the trial".21 I am unable to give any weight to that submission. The stage of development of AL’s breasts is irrelevant to my mind and nothing turns on the fact that the tendency notice used the word adolescent
as including her.
22 It is also submitted on behalf of the applicant that "other significant differences exist", namely, that AL was younger than the other tendency witness and younger than the complainant at the time that the offending was said to have occurred, the touching happened "out in the open" and she was not a biological relation of the applicant.
23 Counsel for the applicant contends that the evidence given by AL alone but also in combination with the evidence of CL, was "highly prejudicial". She submits:
"The evidence led as tendency would have been of no assistance to the jury in determining a fact in issue and should have been excluded. This evidence does not have significant probative value as it could not 'rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.' Hughes v The Queen [2017] 263 CLR 338, [16]. Identification of the fact in issue is where consideration must begin, and the assessment for the Court is whether that so-called tendency proves that fact. The fact in issue is an interest in adolescent females and a preparedness to act upon that interest. The evidence of [AL] and [CL] does not demonstrate that preparedness. Brown v Tasmania [2019] TASSCA 4. The evidence of [AL] and [CL] did not meet the standard of a strand, let alone a significant strand in any cable Brown, [3]."
24 To the extent that the applicant's submissions suggest that it is necessary for tendency evidence to be strikingly similar to the evidence of the alleged acts at issue in the trial, it is well established that such is not the law: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, 266 CLR 56 at [48]- [49].
25 The proposed tendency evidence plainly had significant probative value. It matters not that in the case of CL the relevant tendency was not acted on by the applicant beyond the requests by him. It certainly evidenced a preparedness to so act.
26 As the learned trial judge pointed out in the attached reasons for ruling at [14]:
"In TL v The King [2022] HCA 35 at [28] the High Court considered the concept of
'significant probative value' as involving:'Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and 'having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence'. For evidence to have 'significant probative value', it 'should make more likely, to a significant extent, the facts that make up the elements of the offence charged'; in other words, the evidence must be 'important' or 'of consequence' to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.'"
27 Counsel for the applicant submits:
"On the application of the significant probative value test his Honour places reliance on and quotes from TL v The King [2022] HCA 35. This authority could not have been in his Honour's mind at the time that the original ruling at trial was considered as it had
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not yet been decided. The extant law relevant to his Honour's ruling are the authorities
noted herein, not those not in existence when he made his ruling."
28 If that is an assertion of error then it is specious reasoning. TL did not change the law, it
elucidated it.
29 Counsel for the applicant concludes on this first proposed ground of appeal by submitting:
"73 The main complainant is to paragraphs 30 and 31 of the ruling. 74 The evidence to be led essentially related to further uncharged acts where some of the conduct could not have been categorised as criminal.
75 However, when coupled with the complainant's evidence the evidence became highly prejudicial.
76 The effect on the jury of this evidence was not something capable of curing by directions and his Honour should have exercised his discretion and excluded the evidence at trial.
77 The effect of the ruling was to place before the jury highly prejudicial material not materially relevant to the facts in issue that was likely to be misused by the jury in determining the verdict."
30 At [30]-[31] of the learned trial judges reasons for ruling his Honour said:
"30 I am persuaded however that the probative value substantially outweighs such prejudicial impact. That is because it is evidence of conduct which bears significantly upon the proof of the charged acts and with appropriate directions, the risk of the inevitable prejudice to which "tendency evidence" can give rise can be cured such that its force is preserved while the risks of misuse, and improper reasoning are ameliorated. The result will be that the probative value of the evidence substantially outweighs any prejudicial effect to the accused.
31 The evidence of the complainant in respect of the uncharged acts, and the evidence of AL and CL will be admitted as evidence demonstrating the accused's sexual interest in young and/or adolescent females, and a preparedness to act on that interest; AND to demonstrate his use of familial relationships to gain access to young and/or adolescent females for his own sexual gratification."
31 I can find no fault in that reasoning. I repeat that this was wholly unremarkable tendency evidence of the type frequently seen in such cases and made the subject of directions as to the limited use to which juries may rely on it. The conclusion reached by his Honour was entirely open to him and I would have been amazed if he had reached any other. And, as pointed out by counsel for the respondent, Mr Ransom, in his written submissions, no criticism is made of the directions his Honour gave the jury as to how they might use the evidence.
32 As to the observation by counsel for the applicant that "the evidence to be led essentially related to further uncharged acts where some of the conduct could not have been categorised as criminal", if it was intended to suggest that it is a legal requirement for the admissibility of tendency evidence that the acts relied upon be criminal acts in themselves, that is not the law.
33 There is no merit in proposed ground 1 of the notice of appeal.
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Ground 2
34 In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows:
"Unsafe and unsatisfactory
[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows:
'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.
[6] In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495:
'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 (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). 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 (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462)'."
35 As submitted by counsel for the respondent, the correctness of M was confirmed in Dansie v The Queen (2022) HCA 25, 403 ALR 221 which may be taken as authority for the following propositions:
• The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. • The test to be applied in the performance of that function was settled in M v The Queen (1994) 181 CLR 487 at 508. The questions which the court must ask itself when performing the function, is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The question is one of fact which the court must decide by making its own independent assessment of the evidence. • In answering that question the court must not disregard the consideration that the jury has had the benefit of having seen and heard the witnesses (see M at 493).
36 Counsel for the applicant submits that when all of the evidence is looked at as a whole, the jury should have entertained a doubt as to the applicant's guilt. The following reasons are noted:
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• There were no eye witnesses to the offending. • The complainant had a turbulent relationship with her father. • Disclosures of the sexual contact were only made to friends of the complainant and not to anyone in authority. This was despite the applicant seeking the assistance of numerous bodies such as Anglicare, school counsellors, Child and Family Services and the police. • The applicant gave evidence at his trial and denied the allegations. • He was unshaken in cross-examination. He had also taken part in a record of interview where he had similarly denied the allegations. • There was no physical evidence led at the trial to corroborate the complainant's account. • The sole evidence against the applicant was the complainant's word. • There were inconsistencies in the complainant's account and at times her evidence was not corroborated by other witnesses called. This was particularly so in terms of discipline and her relationship with the applicant. • There were also material inconsistencies in her account relating to occasion 1 as to which hand would have been used to touch the applicant's penis. 37 These matters enumerated by counsel for the applicant are frequently encountered in cases of sexual assaults against children that occurred years before the victims give evidence or make statements to others. In this case, as pointed out by counsel for the respondent, the complainant was an essential witness and the learned trial judge directed the jury accordingly. It follows that the jury were satisfied of the substance of her evidence beyond reasonable doubt.
38 The complainant gave a clear and detailed account of the four episodes of sexual misconduct which, like the applicant's account, was undisturbed by cross-examination. The jury were entitled to accept her evidence and reject that of the applicant.
39 As submitted by counsel for the respondent, the complainant's account was circumstantially supported by the tendency evidence which was capable of demonstrating that it was more probable than not, that during the episodes of alleged sexual misconduct the applicant acted in the way that the complainant alleged.
40 As to the remaining submissions by counsel for the applicant set out above, I accept the submissions of counsel for the respondent that:
• It is frequently the case that there are no direct witnesses to sexual misconduct of this kind. • While the complainant did have a difficult relationship with the applicant, this was explicable in the context of the violence and sexual misconduct that she said the applicant inflicted upon her over many years. • The complainant disclosed the sexual misconduct to persons she trusted and explained why she did not do so to the applicant's partner, the school counsellor and the Department of Child and Family Services. 41 In this case, for reasons which, as I apprehend them, are not capable of being explained simply by the manner in which the evidence of the complainant and the evidence of the applicant was given by each of them, I am left with no reasonable doubt as to the applicant's guilt and in my view, no reasonable jury ought to have experienced such a doubt. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
42 There is no merit in proposed ground 2 of the notice of appeal.
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Grounds 3, 4 and 5
43 It is true that his Honour did not remind the jury of all of the evidence. He said:
"Counsel have urged upon you by reference to particular evidence and cross- referencing the evidence of the conclusions that they submit you should reach in relation to the witnesses."
44 The jury were also told that they needed to consider the whole of the evidence and they were told that they were not to speculate as to what evidence might have been given by witnesses not called on the trial, and to concentrate on the evidence that had been called.
45 Counsel for the applicant submits that although all of the usual directions were given to the jury none of the directions were linked to the evidence, and at no stage was the jury given a summary of the evidence. Accordingly the applicant's submission is that the summing up to the jury was inadequate and fell short of the obligations of a trial judge to sum up the evidence.
46 Next the applicant submits that the complainant's recorded interview by police was played to the jury as part of the complainant's evidence, but was not transcribed and did not become part of the trial transcript. The jury were provided with the transcript of the trial but not of the recorded interview. The edited disc of the interview itself became an exhibit in the trial. It is submitted that as defence counsel made reference in closing addresses to the two ways in which the complainant's evidence had been received at trial it was incumbent upon the trial judge to also make comments to that effect.
47 It is submitted that without such comments the jury might well have overlooked the fact that all of the complainant's evidence was not in the transcript and therefore might have not appreciated defence counsel's comments relating to inconsistencies in her accounts. And it is submitted that if the jury did not appreciate that an assessment of the evidence of the complainant required looking at two different forms of evidence, it is "now impossible to know what material was taken into account by them in determining the verdict."
48 Finally, in relation to these three proposed grounds of appeal, counsel for the applicant sets out in some detail in her written submissions the points made by defence counsel at trial in the defence closing address, including as to the improbabilities and the inconsistencies asserted and the motive to lie and the lack of complaint said to be apparent on the evidence. It is then submitted that the learned trial judge made little reference to the defence case or the closing address in his summing up. The defence case being that the complainant's allegations were lies and that her evidence was a reconstruction not based on the truth and that the applicant had given an accurate truthful account, had not committed the acts alleged, had nothing to hide and should be acquitted.
49 Counsel for the applicant submits that little reference was made to the defence case or the closing address in summing up, that it was summarised as "the accused simply denies those allegations" and as "Mr J…'s defence is that this didn't happen. It is a denial".
50 It is submitted that the most extensive reference to the defence case was the following sentence – "[i]t was put to you that what she told her friends should be taken - and if I have misrepresented what Mr Hughes has said no doubt he will tell me - but it should be taken with a grain of salt, because all of it came from [the complainant]."
51 It is acknowledged by counsel for the applicant that no further directions were sought by her client's counsel at trial, beyond a direction as to the use of the transcript by the jury.
52 I should record that it is my practice when sitting as a trial judge to summarise fully both the prosecution and the defence case so as to remind the jury of the essential features of both, however that in itself may be questioned, depending on the nature of the case.
53 In Anderson v Tasmania [2020] TASCCA 11 at [109]-[111] Porter AJ said:
"109 The necessary content of a trial judge's summing-up has been the subject of considerable judicial discussion. Many of the primary cases were collected by Geason J in Riley (above) at [19]-[22]. The principles are clear. Relevantly to this case, they are
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as follows. The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires instructions to the jury about so much of the law as they need to know in order to dispose of issues in the case, about the elements of the offence, the burden and standard of proof, and the respective functions of judge and jury. Subject to any statutory provisions, it will require the judge to identify the issues in the case and relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. See RPS v The Queen [2000] HCA 3, 199 CLR 620 at [41]; Lane v The Queen [2013] NSWCCA 317 at [36].
110 The obligation to put fairly the case of the accused, extends to explaining any basis on which the jury might properly return a verdict in the accused's favour: Castle v The Queen [2016] HCA 46, 259 CLR 449 at [59]. The way in which a judge structures the summing-up and the extent to which the jury is reminded of the evidence is a matter for individual judgment and should reflect the complexity of the issues raised in the case, the length of it, and the way in which it is conducted: Castle (above). Each charge to a jury must be tailored to the circumstances of the case and structured in the way assessed as most effectively distilling the issues for determination and, to the extent that is necessary, remind the jury of the evidence bearing on the determination of those issues: Alford v Magee (1952) 85 CLR 437 at 466; Huynh v The Queen [2013] HCA 6, 87 ALJR 434 at [49].
111 A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in it, and there is certainly no need to 'painstakingly read all of the evidence to the jury': Domican v The Queen (1992) 173 CLR 555 at 560; R v Meher [2004] NSWCCA 355 at [77]. Where the jury is provided with a transcript of the evidence, as it was in the present case, the judge may consider that reference to the parts of the evidence that bear on the particular issues does not require reading passages from the transcript, or summarising it: Castle (above) at [59]. In R v Davis [1999] NSWCCA 15 at [24] Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) commented that where the summing-up in a short trial follows immediately after a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses; to require otherwise 'would be to credit the jury with little in the way of intelligence or common sense.'"
54 In the present case, as summarised by counsel for the respondent, the learned trial judge in the course of the summing up, canvassed the following matters;
• The role of the jury. • The role of the judge and counsel. • The memorandum to the jury handed out. • The need to be dispassionate given the nature of the case. • The concept of proof beyond reasonable doubt. • The concept of the burden of proof. • An essential witness direction with respect to the complainant. • A Liberato direction. • The elements of the crime of persistent sexual abuse of a child. • The elements of the crime of rape. • Reference to defence case "that it did not happen". 9 No 1819/2022
• The respective cases as to occasion four; "because it's a contest of digital penetration on the one hand, in circumstances where such conduct was neither invited nor requested versus this didn't happen at all". • The elements of the crime of indecent assault. • The need to be satisfied beyond reasonable doubt of at least three acts. • Alternative verdicts. • The jury's task in assessing evidence. • Reference to counsel's addresses. • Assessing witnesses and relevant factors. • Honest but mistaken witnesses. • The effect of time passing on witness recollections. • The rule that questions are not evidence. • Drawing inferences. • Tendency evidence. • Tendency evidence being part of the evidence. • Further reference to the essential witness direction. • Context evidence. • Discipline and complaint evidence. • Complaint evidence. • Delay in complaint. • Use of transcript and interview with the accused. • Not guilty verdict does not mean the complainant lied. • Consequences of verdict. • Interview edits. • Transcript and cross-referencing. 55 In my view, taken as a whole, it cannot be said that the learned trial judge's summing up fell so far short of the obligations of a trial judge to do so, that his Honour fell into error or that the applicant was deprived of a fair trial. As submitted by counsel for the respondent the trial was relatively short and with well-defined issues and his Honour's summing up should be viewed in the context of the detailed address from defence counsel that the jury had heard on the same day, immediately before his Honour summed up.
56 I also accept the submission of counsel for the respondent that, with respect to proposed ground 4, as both counsel made reference to the witness interview with the complainant in their addresses, the suggestion that the jury may have overlooked the interview is very highly speculative.
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57 In reaching the view that I have as to the adequacy of the summing up in the circumstances of the case, I have been reassured by the fact that neither counsel requested further directions from the learned trial judge when enquired of after his Honour had finished.
58 In Lambert and Stokes v Tasmania [2007] TASSC 76 at [115]-[116] Blow J as he then was
said:
"115 When a question arises as to whether a summing up has been so defective that a miscarriage of justice has resulted, one relevant consideration is the reaction of defence counsel to the hearing of the portion of the summing up that has been criticised: La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72; Lee v Tasmania [2006] TASSC 92 at pars 38–40. The Crown relies on those cases and contends that the silence of defence counsel should be taken as an indication that they considered that their clients' cases had been adequately put to the jury. Counsel for both appellants submitted that that should not be inferred in this case since the arguments they relied on were referred to at so many different stages during the summing up that it was difficult for them to make an assessment, immediately upon its conclusion, as to whether any important arguments had been missed. I accept that such an assessment would have been very difficult. However defence counsel should not have had any difficulty noticing that the learned trial judge's summaries of their clients' cases covered only their clients' factual contentions, and not their arguments. It is perhaps surprising that no submissions were made about that state of affairs.
116 The fact that neither defence counsel asked the learned trial judge to summarise their principal arguments is a factor that weighs in favour of the Crown. It suggests that the summing up seemed fair and adequate when it concluded. But that factor is no more than a factor that has to be taken into account in deciding whether the summing up, taken as a whole, was so defective that a miscarriage of justice resulted." (Emphasis added.)
59 There is no merit in proposed grounds of appeal 3, 4 and 5.
60 Were I to be wrong in my conclusion as to the adequacy of the summing up, having regard to any of the matters referred to in proposed grounds 3, 4 and 5, I would apply the proviso in s 402(2) of the Code. That is to say, that even if the learned trial judge did not adequately put the defence case to the jury and that resulted in procedural unfairness, "no substantial miscarriage of justice has actually occurred" in relation to the applicant, and the appeal should therefore be dismissed.
61 The availability of the proviso in such circumstances was considered by Blow J in Lambert
where his Honour said at [129]:
"In this case, the learned trial judge went a long way towards discharging his duty to put the defence case to the jury. He reminded the jury of each appellant's principal factual contentions. He reminded the jury of the most important arguments of defence counsel relating to the primary basis of the Crown case. Having regard to the authorities that I have referred to, I do not think it can be said that the inadequate putting of the defence case was so serious or fundamental a breach of the presuppositions of the trial as to deny the application of s 402(2). I accept that such an irregularity in a summing up constitutes a denial of procedural fairness, but in my view the irregularity in this case was not so significant as to have resulted in a substantial miscarriage of justice."
Disposition
62 I would dismiss the appeal. The applicant should be granted leave to appeal but his conviction
should stand.
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File No 1819/2022
JD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J 10 OCTOBER 2023 |
63 I have had the advantage of reading, in draft form, the reasons of Estcourt J. I agree with his Honour that the appeal should be dismissed. I agree that grounds three, four and five of the appeal are not made out for the reasons given by his Honour. As to the first and second grounds I would state reasons of my own.
A summary of the case and the evidence
64 It follows from the verdict that the applicant was guilty of persistent sexual abuse of a child contrary to the Criminal Code, s 125A, that the jury was satisfied beyond reasonable doubt that the accused committed an unlawful sexual act against the complainant on at least three occasions during the four year period between 1 January 2015 and 31 December 2018 specified in the indictment. The complainant is the applicant's daughter. At the beginning of the indictment period she was aged 12 and at the conclusion of the period she had just turned 16. Until age seven or eight she lived in a house in suburban Launceston with her mother and the applicant, her younger brother and her half-sister AL. She and her brother then moved with her father to live in Longford with his new partner KL and KL's younger sister CL. The complainant and CL were about the same age. For the most part, in the Longford house, they shared a bedroom although they had separate beds. When the complainant was about 15 the family rented another house in Prospect in suburban Launceston and lived between that house and the Longford house. In the Prospect house she shared a bedroom with CL as well as her brother, although the sleeping arrangements were more flexible and sometimes one or other of them slept in a different room.
65 In her evidence the complainant described conflict, both verbal and physical, with the applicant. She said that her father was frequently violent towards her which resulted in bruises which were, at various times, all over her body.
66 The complainant gave evidence of four separate occasions on which unlawful sexual acts were committed against her by the applicant. The first occasion was at the Longford house when she was about 14. She was asleep alone in her bedroom. KL was at work and CL was sleeping in the lounge room. The complainant woke to the applicant using her hand to masturbate his erect penis. She put an end to it by pretending to be still asleep and rolling away.
67 The second occasion was, she thought, the following night. She was asleep in her bed and woke to the applicant rubbing his hands on her breast and inside her thigh near her vagina, under her clothing. Again, she thought that CL was sleeping in the lounge room and KL was at work.
68 The third occasion occurred at the Prospect house. The complainant's evidence was that she was 15 at the time. The applicant came into her bedroom while she was asleep. CL and her brother were not there. She woke to the applicant touching her breasts and vagina under her nightie.
69 The fourth and final occasion also occurred at the Prospect house. The complainant said that KL and CL were staying with KL's relative in a different house, and her brother was asleep in a different room. The complainant was asleep in her room but woke to find the applicant moving his finger in her vagina. She did not want to reveal to him that she was awake and rolled away as if she were still asleep.
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70 Evidence was admitted of other aspects of the applicant's conduct which was uncharged because it was not relied on as on as an unlawful sexual act within the charge. The complainant gave evidence that the applicant asked her to watch him while he was in the shower, asked her to send him photographs of herself while she was in the shower, and asked her to photocopy her breasts and to give the image to him.
71 The complaint's evidence was that after the final unlawful sexual act she ran away from home. Throughout the indictment period the complainant had contact with, and received support from, a school social worker, a youth worker and a child safety services liaison officer, each of whom gave evidence. Another witness gave evidence that she provided respite accommodation to the complainant from time to time. A police officer had some contact with the complainant after allegations of physical assault were referred to him by the complainant's school. There could be little doubt that the complainant's relationship with her father was turbulent. She had run away from home on a number of occasions. Although the complainant told the people just referred to, in various ways and to differing degrees, about her father's violence, she did not tell any of them that he had sexually abused her. The complainant was asked about this at trial. The substance of her evidence was that she did not think she could trust those people. She was afraid of the applicant and feared that she would not be believed. She thought her complaints of violence were not believed, she thought she was regarded as a difficult child, and that the social worker had passed on her previous complaints to her father which made matters worse. She did not tell KL because she was her father's partner and their relationship was poor.
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73 The complainant did however say things to others. A close school friend gave evidence that, during a series of conversations when they were in grades 9 and 10 at school, the complainant told her that the applicant was abusing her verbally, physically and sexually. She observed injuries, bruises and lacerations, to the complainant's body. As to complaints of sexual abuse, the witness's evidence was that the complainant told her that the applicant would often touch her breast and her upper thigh near her vagina when she was at home in her room.
74 Another young female witness gave evidence that she met the complainant in March 2017 when the complainant, after having run away from home, moved into a house in which the witness was living with her mother. The complainant and the witness moved out into their own residence at the beginning of 2018. The witness gave evidence that the complainant told her that her father "used to touch her and not feed her."
75 A third young female gave evidence that she came to know the complainant when she lived next door to the Prospect house. Her parents were friends with the applicant and KL. She heard and observed the verbal and physical abuse the complainant suffered at the hands of her father. They stayed in touch after the complainant ran away from home. They sometimes discussed intimate matters and in the course of one of those conversations, sometime after 2017, they talked about the complainant's boyfriend. The evidence of the witness was that the complainant told her that "she felt uncomfortable having sex with her boyfriend to begin with because it reminded her of what her dad did to her." During the period after that conversation the complainant would "touch on" the subject every now and then but never went into detail.
76 The applicant was interviewed by the police in 2019 and gave evidence at trial. He denied having committed any sexual acts against the complainant. His case was that the alleged conduct did not occur.
The tendency evidence
77 Prior to trial, the prosecution gave notice, in accordance with s 99 of the Evidence Act, of its intention to adduce evidence, pursuant to s 97, as tendency evidence, in order to establish that the
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respondent had a sexual interest in adolescent females within his care and a preparedness to act upon
that interest. The proposed evidence stated in the notice was:
• the evidence of the complainant of the four unlawful sexual acts which made up the charge; • the evidence of the complainant of the uncharged conduct of the applicant asking her to photocopy her breasts and photograph herself in the shower and send him the images; • evidence of AL, the daughter of the applicant's former partner, of the following uncharged acts: that in 2005 or 2006 when she was 10 to 12 years old and living with the applicant, he, on numerous occasions, touched her breasts and rubbed her nipples under her clothes when she was in bed; • evidence of CL, of the following uncharged acts: that on a specified day in 2016, when she was about 16, the applicant asked if he could touch her breasts; and on a subsequent occasion the applicant sent her a social media message asking her to send him photographs of herself in the shower.
78 Over objection, the trial judge ruled that the evidence listed in the s 97 notice was admissible as tendency evidence. The first ground of appeal asserts that the learned trial judge "erred by admitting evidence of an alleged tendency." Although that ground of appeal is broadly drawn, the applicant's contention in this appeal is confined to the question of the admissibility of the evidence of AL and CL.
79 Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency of a person; Evidence Act, ss 97(1) and (3). Evidence that an accused person had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that the accused had that tendency. It is circumstantial evidence from which a tribunal of fact may infer that because a person has acted in a certain way, he or she is more likely to have acted in a similar way on another occasion. Tendency evidence may be admitted only if the court thinks that the evidence, either by itself or having regard to other evidence, will have "significant probative value": s 97(1)(b). Moreover the tendency evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2).
80 After conducting a voir dire the trial judge ruled that the evidence would be admitted. His Honour published reasons for that ruling well after the trial was concluded. The ground of appeal asserts that the trial judge erred by admitting the evidence. Estcourt J has referred at some length to the trial judge's reasons. However, as the High Court made clear in R v Bauer [2018] HCA 40; 266 CLR 56, the question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Thus, it is for this Court to determine for itself whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. In McPhillamy v R [2018] HCA 52; 92 ALJR 1045, at [11], citing Bauer at [61], the Court said:
"Regardless of the reasons that informed the trial judge's decision to admit the tendency evidence, the determination of whether the trial miscarried in consequence of its admission is concerned with the use made of the evidence at the trial."
81 To be of significant probative value, evidence must be assessed to make more likely, to a significant extent, a fact in issue in the proceedings: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [40]. More recently, in TL v The King [2022] HCA 35; 96 ALJR 1072 the High Court summarised the principles at [28]:
"Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where
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the evidence could not be accepted by a rational jury. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and 'having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence'. For evidence to have 'significant probative value', it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged; in other words, the evidence must be 'important' or 'of consequence' to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged." (citations omitted)
82 The applicant criticised the learned trial judge for, in his written reasons, relying on the passage from TL v The King just quoted because, although the case was decided by the time of his Honour's ruling, it had not been decided at the time of his order to admit the evidence. The criticism gets the applicant nowhere for two reasons. That passage of the reasons in TL v The King does not indicate any change in the law and is nothing more than a convenient restatement of well established principle. More importantly, as has just been made clear, the determination of whether the trial miscarried in consequence of admission of the evidence is concerned with the use made of the evidence at the trial regardless of the trial judge's decision to admit it.
83 I will refer firstly to the evidence at trial of AL. Her evidence was largely in conformity with the tendency notice. AL was born in 1995 and so she was about seven years older than the complainant. For some years until about 2008, AL's mother, NE, was the applicant's partner. They lived with the applicant and the complainant in suburban Launceston. The complainant's younger brother was born in the course of the relationship between the applicant and NE. AL told the jury that there were "multiple" occasions, when she was about 10 years old, on which the applicant asked her to sit on his lap and "he would put his hands up my top and touch my breast." These occasions, she told the jury, usually occurred at the kitchen table in the mornings when her mother was asleep. She said that the last such occasion occurred when she was in grade 5 at school. She told no one about it until she informed a social worker at school when she was in grade 8.
84 At trial, CL gave evidence which again largely conformed with the evidence specified in the notice. By the time of the trial she was aged 21. She began to live with the applicant and her older sister, and the complainant and her brother when she was 15. From the time she was 16 she mostly lived in the Prospect house and then moved out altogether when she was 18. In the Prospect house she shared a bedroom with the complainant. She described an event which occurred on a day in October 2016 which she remembered because it was Longford Show day. She was 16 at the time. On the way to the show with the applicant they called in to the Longford house. No one else was present. When she was in the laundry the applicant put his hand up with an open palm and asked if he could touch her breast. She said no. She remembered "feeling really anxious, not wanting to be there."
85 A few months later she was cleaning at the Prospect house. She and the applicant were communicating on the social media platform Snapchat. She mentioned to him that she was going to have a shower after cleaning and he asked "if I could send him a nude picture, while I'm having a shower." She said she received two such messages.
86 As to the evidence of AL, the applicant submits that the evidence was of little probative value because of the circumstances of the events were different to those described by the complainant:
•
AL was aged 10, younger than the complainant and the other tendency witness at the time of the respective conduct;
•
AL was likely pre-pubescent and had not yet developed breasts which made it "incorrect to characterise the touching as to the breasts";
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• the touching "happened out in the open"; • AL was not a biological relative of the applicant. 87 The applicant submits that the evidence of CL was of little probative value because:
• although the evidence was capable of proving that the applicant made requests to touch CL breasts and for her to take and send sexualised images of herself, it could not show that the applicant was prepared to act on those requests; • CL was not the applicant's biological daughter; • the evidence was little use to the jury in drawing an inference that the applicant was prepared to enter his daughter's bedroom and commit the acts alleged. 88 I would reject the applicant's submissions. In my view the evidence of both witnesses was of significant probative value. The evidence of AL and CL, taken individually, in combination with each other and with the other evidence, offered powerful support for the tendency alleged. The applicant's submission was that the evidence "would have been of no assistance to the jury in determining a fact in issue", which the applicant submitted was whether the applicant had "an interest in adolescent females and a preparedness to act upon that interest." Although that submission correctly identified the tendency the prosecution sought to prove, the fact in issue in the trial was whether the applicant committed the alleged sexual acts against the complainant.
89 In my view, the evidence demonstrated a sexual interest in young girls within the applicant's household and with whom he was in a parental relationship. As the learned trial judge pointed out, the conduct alleged exhibited common features: touching the breasts or requesting to do so, touching under the clothes, and the provision of nude photos in the shower. I agree with Estcourt J that nothing turns on the fact that the tendency notice used the word "adolescent" as it applied to AL. Her evidence strongly suggested that the applicant had acted upon a sexual interest in her at a time that she lived in the applicant's household and he was in a parental role. Her evidence was probative of the truth of the evidence of CL that the applicant had asked to touch her breast. CL was about the same age as the complainant and lived in the same household. Her evidence strongly suggested that the applicant had a sexual interest in her. The requests to her, although refused, disclosed a preparedness to act on the sexual interest. The evidence was also strongly corroborative of the complainant's evidence of the requests the applicant made of her, and there was no challenge to this Court about the admissibility of that evidence as tendency evidence.
90 The applicant submits that the evidence is unfairly prejudicial because it was "further uncharged acts where some of the conduct could not have been categorised as criminal." The contention should be rejected. Evidence is not unfairly prejudicial merely because it strengthens the prosecution case. It is unfairly prejudicial only when the jury is likely to give the evidence more weight than it deserves, or when the nature or content of the evidence may improperly influence the jury or divert the jurors from their task: Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51] per McHugh J. It may be accepted that evidence of tendency in cases involving allegations of sexual abuse of children may provoke an emotional response from some or all members of the jury. A jury may fail to sufficiently allow for the possibility that even if the applicant had tendency to have a particular state of mind, or to act in a particular way, he may not have had that state of mind, or may not have acted in that way, on the occasions of the charged conduct. However in determining whether a danger of unfair prejudice has been established, it is appropriate to have regard to directions that can be given to circumvent any potential misuse of the evidence: R v XY [2013] NSWCCA 121; 231 A Crim R 474 at [192]. In my view, the risk of the jury improperly using, or giving disproportionate weight to, this evidence was sufficiently addressed by the conventional directions given by the trial judge.
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91 In my view the probative value of the evidence of AL and CL was significant and substantially outweighed the risk of any prejudicial effect it may have had on the accused. The evidence was properly admitted and the trial did not miscarry.
The unreasonableness ground
92 The second ground of appeal asserts that the verdict of the jury was unreasonable and incapable of being supported having regard to the evidence. The ground invokes the common form unreasonable verdict ground stated in Tasmania in the first limb of s 402(1) of the Code. The approach which must be adopted by a Court of Criminal Appeal when considering an appeal on that ground was stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493–5, affirmed in MFA v The Queen [2002] HCA 53; 213 CLR 606 and in SKA v The Queen [2011] HCA 13; 243 CLR 400, and recently re-stated in Dansie v The Queen [2022] HCA 25; 403 ALR 221. The question which the court must ask itself is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M at 493. The question is "one of fact which the court must decide by making its own independent assessment of the evidence": M at 493. The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M at 493. However, as the joint judgment continued at 494-495:
"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 a 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. (Footnotes omitted)"
93 In R v Baden-Clay [2016] HCA 35; 258 CLR 308 the Court, at [65], observed that setting aside a conviction on the unreasonableness ground "is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial": see also Dansie v The Queen at [8]–[15];
94 Counsel for the applicant relied on the decision of the High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123 at [39]. In that case Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman J 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."
95 Pell was a case in which the Court concluded that discrepancies and inadequacies in the evidence ought to have led a court of criminal appeal to experience a reasonable doubt which was incapable of being resolved by the advantages, which the jury was acknowledged to have had, in
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assessing the credibility and reliability of testimony available to the court on appeal only in the form of
audio-visual recordings.96 The applicant submitted that, as in Pell, there were inadequacies and inconsistencies in the case against him which ought to have led the jury, acting rationally, to entertain a reasonable doubt about his guilt. The applicant contends that those inadequacies and inconsistencies included:
• there were no other witnesses who observed the offending conduct; • there was no physical or forensic evidence to support the complainant's account; • the offending at times occurred when others were present in the house yet no one else observed the alleged acts; • the complainant had a motive to concoct a false account to damage the applicant because of her turbulent relationship with him; • there was some inconsistency in her account of the first unlawful sexual act concerning which of her hands was used by the applicant; • complaints were only made to friends, and not to persons in authority, even though there were various services to whom the complainant could have complained; • the jury could not have found the applicant guilty unless it was satisfied beyond reasonable doubt of the truth of the essential parts of the complainant's evidence. The jury could not have been so satisfied unless it rejected, beyond reasonable doubt, the truth of the applicant's denials, and the applicant did not waiver in his denial of the allegations.
97 I have reviewed the evidence at trial. The applicant's trial counsel argued that the complainant was motivated to make false allegations against the applicant arising from their turbulent relationship, that the circumstances of the unlawful sexual acts described by the complainant were implausible, that her claim to have been silent at the time the applicant was perpetrating the acts was inconsistent with other aspects of her behaviour and her willingness to resist in other ways, and that the applicant's engagement with the various services involved with his daughter's care and management was inconsistent with the silence and secrecy which might be expected of a person who is committing sexual offences against his daughter. The applicant denied committing any sexual acts against the complainant and denied inflicting violence on the complainant beyond that which was justified by reasonable discipline of his child.
98 In my view, this is a case in which the jury had the distinct advantage over this Court of having seen and heard the evidence of the applicant, as well as the complainant. It is very frequently the case that sexual offences, particularly those alleged to have been committed against children, are not observed by any other person. Subject to the qualifications expressed in Pell, it was open to the jury to convict on the uncorroborated evidence of the complainant. I do not accept that the complainant's account about the circumstances of the unlawful sexual acts was inherently implausible such that the jury should have, when all of the evidence is considered, had a reasonable doubt about guilt. There was other evidence to support the complainant's account. There was circumstantial evidence which tended to support the complainant's contention, at least for one of the occasions she described, that she was alone in the house with the applicant. There was evidence from CL which corroborated the complainant's evidence that CL was asked by the applicant to sleep in a different room. CL, who normally shared a room with the complainant, gave evidence that she was regularly asked by the applicant, without giving a reason, to sleep in the lounge room or her brother's room. She said "I just got told to go out there". The complainant's evidence was supported by the complaints she made. As is well recognised, there may be many reasons that a child may refrain from, or delay, making a complaint
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of sexual misconduct, and the reasons for the complainant's failure to complain to authority figures here were rationally explained. The tendency evidence, if accepted, was probative of the truth of the complainant's evidence.
99 There was evidence which tended to undermine the credibility of the applicant, including direct evidence of injuries which supported the complainant's evidence of violence inflicted by the applicant.
100 I am unable to conclude that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It was well within the capacity of the jury to evaluate all of the matters relied upon by the applicant as affecting the credibility and reliability of the complainant's account and the account given by the applicant. This Court cannot perform the same function. It is almost inevitable that the evidence of children concerning allegations of sexual abuse will contain some discrepancy or inconsistency. However, to adopt the words in M, the evidence against the applicant did not contain discrepancies, display inadequacies, and was not tainted or otherwise lacking probative force such as to lead to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted.
Result and order
101 For the foregoing reasons I am not satisfied that any ground of appeal is made out. I would
dismiss the appeal.
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File No 1819/2022
JD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL JAGO J 10 OCTOBER 2023 |
102 I have had the benefit of reading the reasons of Estcourt J and the additional reasons of Pearce J. I agree grounds 3, 4 and 5 of the appeal should be dismissed for the reasons expressed by Estcourt J.
103 As to ground 1, I agree with Estcourt J that the learned trial judge's decision to admit the tendency evidence is unaffected by error. In consideration of this Court's obligation to independently assess whether the admission of the evidence resulted in the trial miscarrying, irrespective of the soundness of the reasons for the decision to admit the evidence, I record my conclusion that it did not. The evidence was clearly of significant probative value.
104 The evidence of AL and CL, as described in the reasons of Estcourt J and Pearce J, when assessed in the context of the whole of the evidence at trial, strongly suggested the applicant had "an interest in adolescent females and a preparedness to act upon that interest" (the asserted tendency). The evidence cogently suggested the applicant requested to, and in fact did, touch the breasts of young females who were present in his residence under their clothing and also requested nude photographs of young females. The fact that on one occasion the attempt to act on the sexual interest was thwarted did not detract from the existence of such an interest. The behaviours alleged by AL and CL were also a feature of what the complainant said happened to her at the hands of the applicant. Acceptance of the existence of the asserted tendency made it more likely, to a significant extent, that the applicant committed the alleged sexual assaults against the complainant. Any unfair prejudice arising from the very nature of the tendency evidence was adequately ameliorated by the directions given to the jury. The probative value of the evidence of AL and CL substantially outweighed any unfairly prejudicial effect upon the applicant. The trial did not miscarry as a consequence of this evidence being admitted.
105 As to ground 2, I acknowledge the function to be performed by this Court is to determine for itself, by conducting its own independent assessment of the evidence, whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty (M v R [1994] HCA 63, 181 CLR 487 at 493).
106 I record that I have reviewed the evidence at trial. The discrepancies and inadequacies alleged by the applicant to exist within the evidence, such that a jury should have entertained a reasonable doubt as to his guilt, are set out in the reasons of both Estcourt J and Pearce J. There is no need for me to repeat them. I have given careful consideration to those alleged discrepancies and inadequacies. To my mind none of them are tainted by such implausibility or irrationality, or otherwise lack probative force, as to give rise to a reasonable doubt as to the applicant's guilt.
107 The fact there were no other witnesses to the offending behaviour is commonplace in matters of this nature; the lack of physical or forensic evidence is also common and not unexpected given the passage of time; the failure to complain to persons in authority was sensibly explained in the complaint's evidence; the existence of minor inconsistency is not surprising given the age of the complainant at the time the events were alleged to have occurred and the passage of time; and the difficult relationship existing between the complainant and applicant was consistent with the allegations being true or false. It may have been a motivating factor in concocting a false account but equally was explicable by the acts having occurred.
108 The asserted difficulties within the evidence, when assessed in the context of the whole of the evidence at trial, are not such as to give rise to a reasonable doubt in my mind. Moreover, all of the alleged discrepancies and inadequacies were canvassed before the jury. The jury had the distinct advantage of seeing and hearing the evidence of the complainant and the applicant. The jury was well positioned to evaluate the merits of the argument advanced by the applicant. They were entitled to
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accept the evidence of the complainant, supported as it was by complaint evidence and the tendency
evidence, if accepted, and reject the denials of the applicant.109 Making proper allowance for the advantages enjoyed by the jury in seeing and hearing the evidence given at trial, I can identify no reason why the jury ought to have experienced a reasonable doubt. I am wholly unable to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
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