Jonah Woodley (a pseudonym)[1] v The Queen
[2019] VSCA 32
•22 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0087
| JONAH WOODLEY (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 December 2018 |
| DATE OF ORDERS: | 20 December 2018 |
| DATE OF JUDGMENT: | 22 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 32 |
| JUDGMENT APPEALED FROM: | DPP v [Woodley] (Unreported, County Court of Victoria, Judge Meredith, 29 January 2018) |
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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Allegations of violence – Denial in record of interview – Forensic decision by trial counsel to suggest violence as motive to lie – Evidence of violence not challenged – Jury invited to accept evidence of violence – Strategy not available given denial of violence – Forensic disadvantages of leaving evidence unchallenged – Substantial miscarriage of justice – Appeal allowed – Retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC with Ms C A Boston | Furstenberg Law |
| For the Respondent | Ms S Flynn QC with Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA
NIALL JA:
Summary
The applicant was found guilty by a County Court jury of two charges of incest and four charges of indecent act with a child under 16. He was sentenced to 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months.
He sought leave to appeal against conviction on several grounds. In the event, the only ground of appeal which was argued was that alleging a substantial miscarriage of justice, by reason that:
the course adopted by trial counsel was inconsistent with the instructions of the applicant, in that:
(a)the allegations of violence made against the applicant were not challenged;
(b)the jury were invited to accept that the violence taking place in the house would serve to be a very powerful factor to lie as regards the allegations of sexual offending; and
(c)the applicant had maintained his denial of the allegations of violence.
In accordance with the practice described by this Court in Knowles (a pseudonym) v The Queen,[2] the applicant’s trial counsel was given notice of the criticism of his conduct of the trial and invited to consider whether he wished to say anything in response. Counsel initially said that he felt constrained by legal professional privilege but, once it was clarified that the applicant waived privilege, counsel filed an affidavit and was then cross-examined in this Court.
[2][2015] VSCA 141 [144]–[147].
After reserving our decision for several days, we informed the parties of our conclusion that this ground of appeal should be upheld, the appeal allowed and the convictions quashed. We ordered that there be a re-trial. We said that we would publish reasons for our decision in due course. These are those reasons.
Senior counsel for the applicant accepted, without reservation, that trial counsel had been at all times conducting the applicant’s defence in the manner he judged most likely to maximise the prospects of acquittal. Having read the trial transcript, and having seen trial counsel cross-examined, we have no hesitation in affirming that view of his conduct. As will appear, trial counsel’s assessment was that his client was facing a strong Crown case and that it was necessary to exploit any forensic opportunity which seemed to be available.
Trial counsel was aware that evidence would be led from the complainant and other prosecution witnesses that the applicant had been violent to them during the period of his relationship with the complainant’s mother (‘M’). In his record of interview, the applicant denied any violence. The strategy which counsel endeavoured to pursue was, on the one hand, not to contradict his client’s denial of violence but, on the other, to leave the allegations of violence unchallenged in the trial. The latter course was designed to establish a platform for a final submission to the jury contending that, if they accepted he had been violent, this would represent a powerful motive for the complainant to have fabricated her allegations.
The submission advanced on behalf of the applicant in this Court demonstrated powerfully, however, that the strategy was unsustainable in the light of the applicant’s instructions — reflected in his record of interview — that he denied the allegations both of sexual offending and of domestic violence. Trial counsel could not go to the jury with what amounted to an invitation to them to conclude that there had been violence, when his instructions were that there had not. Forensically, as trial counsel conceded in this Court under cross-examination, leaving the allegations of violence unchallenged inevitably strengthened the Crown case and induced in the jury an adverse view of the applicant.
The course of the trial
At the time of the alleged offending, the applicant was in a de facto relationship with M. Their relationship had commenced at a time when M was married to, and residing with, the complainant’s biological father and their four children. They separated when the father discovered the affair between M and the applicant. The applicant then moved in with M and the de facto relationship commenced.
The prosecution case was that the offending occurred over the succeeding four years. It is unnecessary for present purposes to describe the allegations. Given that there is to be a re-trial, we would in any event refrain from doing so.
The complainant, M, and other family members alleged in their statements that, while he was living with them, the applicant had been physically violent towards the complainant, her brother and M. In his record of interview, the applicant emphatically denied both the allegations of sexual offending and that he had been violent. The record of interview also included reference to an allegation by the complainant’s sister that the applicant had indecently assaulted her. The sister was not called to give that evidence but the record of interview was played to the jury.
Before the complainant was called to give evidence on the special hearing, the prosecutor indicated to the trial judge that he was not proposing to tender photographs referred to by the complainant during her VARE. These photographs depicted injuries to M allegedly caused by the applicant attacking her. The prosecutor said that the photographs would be available in case the complainant needed to look at them. Trial counsel said that he did not think that he would be needing them.
In cross-examining the complainant, trial counsel did not address the allegations of violence made by the complainant in the VARE. The complainant had referred to the violence on more than one occasion as the reason why she was scared of the applicant and had not spoken up about what he was doing to her. Thus, when counsel put to her the applicant’s denials of sexual abuse, she said:
[W]ell it did happen, and I was very scared of [the applicant], because he used to abuse my mother, and he used to hit me too, and sometimes my brother. And he was a very scary man, to be honest.
At the end of the cross-examination, trial counsel put to the complainant that she had told her sister and M, and ‘eventually the police’, about the alleged sexual abuse because she knew that it would end the relationship between M and the applicant. She replied:
No, actually I told my mum thinking she would take me and leave the second I told her. But therefore it did not happen, so I had told my father, not to ruin their relationship. I did not want them together, but I would never lie to make a relationship end. I said this for my own good and for my own safety.
The following exchange then took place:
And that’s what I’m saying, is that you wanted the relationship to end? – – – I did, but I would never lie for it to end.
And you did lie for it to end? – – – No, I didn’t, no I didn’t.
And that’s exactly what eventually happened? – – – No, I didn’t lie.
In re-examination, the complainant confirmed that she had been afraid of the applicant:
Because he hit my mother and me and my brother, and he was a scary man, and because he has sexually touched me.
Confirming that she had been ‘too scared to tell’ anyone what had happened to her, the complainant attributed this in part to a threat by the applicant that she would ‘get into big trouble’ and in part to the fact that:
He was very scary and I thought if I told he would abuse me and like hit me and stuff.
During a break in the re-examination, the prosecutor informed the judge that he proposed to put to the complainant a photograph to which she had referred, showing injuries to M allegedly caused by the applicant. The prosecutor pointed out, correctly, that trial counsel had not challenged the complainant’s evidence in this regard. The judge pointed out to trial counsel that he had not objected to that part of the interview and said that this was ‘clearly a forensic decision’. Counsel agreed. He also confirmed that he had cross-examined the complainant to set up a potential motive for her to have manufactured the allegations. His Honour said that the photographs appeared to be relevant to the nature and state of the relationship between the applicant and M. At that point, trial counsel withdrew any objection to their tender.
The prosecutor referred to the allegations of violence in his opening address to the jury. In his opening, however, trial counsel said nothing about the allegations of violence. The prosecutor then raised with the judge, in the absence of the jury, his concern that there had been no indication from the defence whether the allegations of violence were denied. The judge said:
If the evidence goes in, it’s a matter for the jury to assess it and obviously both sides are entitled to make what proper use they can. As I understand it the defence position is it provides a powerful motive for her to want the accused out of her life and potentially out of the mother and the family’s life and so on.
Trial counsel confirmed that no issue was to be taken with the evidence of violence. The judge then said:
I’d assumed you’d made a forensic decision to allow or not to object to any evidence of violence.
Trial counsel agreed and confirmed that his Honour was correct in understanding that the evidence of violence was ‘in as part of the defence case’.
His Honour then pointed out, correctly, that two quite different approaches were open in such circumstances. The first was to accept that the applicant was ‘violent and/or unpleasant in the relationship’ and to contend that that was why the complainant ‘wanted him out of her life’. The second was quite different, his Honour said. It involved the applicant denying the acts of violence, and telling the jury that it never occurred, but then:
maybe having some sort of fall-back position, ‘Ah, well, if you’re satisfied it happened, well that would be a good reason to get rid of him’.
The judge then said to trial counsel:
I mean, what are you going to say about his denials in the interview? Are you going to resile from them about the violence? I mean, I’m just a little, perhaps, uneasy about where all this is falling.
What then took place needs to be set out in full, as it exposes both the nature of trial counsel’s strategy and the inescapable difficulties which it involved:
COUNSEL:The position was to be, Your Honour, that there’s a denial interview. It’s clearly — a denial in the interview regarding the violence, from memory, and that — but there’s clearly physical discipline that takes place in the house, and clearly there’s an environment where he’s disliked.
I was going to address the violence by stating that it’s denied, and it’s the defence position that it’s denied, but the witnesses have spoken about the violence, and it provides further context. They’ve stated clearly they didn’t like him for a number of reasons, and we don’t accept that there was violence, but it just goes further to that point, but by their own account there’s a number of reasons not to like him, and one of those is that violence.
The difficulty with this, Your Honour, that clearly the focus of my attention is the sexual offending. I don’t want to be in a situation where there’s a trial occurring within a trial in regards to that violence. The forensic decision that was made was that there is a number of witnesses that provide context as the Crown describe, and it would be impossible to separate the violence as described by the witnesses and the sexual offending that’s also described. But it’s my intention to address them in different ways. Denying completely and outright one, and providing, I guess, more details in regards to the violence, in terms of it does provide context. It’s denied, but it just shows that this was an unhappy house.
HIS HONOUR: So it’s a forensic decision to allow certain parts of the narrative, which include acts of violence, into the trial.
COUNSEL:That’s right.
HIS HONOUR: If I understand you.
COUNSEL:That’s right.
HIS HONOUR: Because that will enable you to go to the jury as a fall-back position that he was unliked and that’s a powerful motive, and I think – – –
COUNSEL:That’s right, there is – – –
HIS HONOUR: – – – for the then 13-year-old girl, or whatever she was at the time, to manufacture this.
COUNSEL:That’s right Your Honour, there is the — the violence aside, that he is disliked for a number of reasons, including – – –
HIS HONOUR: No, no, not violence aside.
COUNSEL:No, but also in terms of the fall-back position, that incorporating the violence, that it’s a further reason for him to be disliked in the house and for actions to be taken by the complainant and so on.
HIS HONOUR: All right. Well again, I’m — you know. I’m not party to the material you have available and the decision making process. I’ll just indicate that that’s — you’ve considered it. You’ve made a considered forensic decision – – –
COUNSEL:Yes, Your Honour.
HIS HONOUR: – – – not to object to elements of the prosecution case of leading acts of violence perpetrated by the accused allegedly over the relevant period and you’ve thought about it and that’s how you want the case run.
COUNSEL:That’s right and – – –
HIS HONOUR: And if you wanted some further time or that, I’d give it to you. I’m not saying you needed it. I’m just – – –
COUNSEL:No, I appreciate that, Your Honour.
HIS HONOUR: I’m just — I must say, I had anticipated when you did the response that you probably would’ve addressed the issue of violence.[3]
[3]Emphasis added.
The prosecutor subsequently submitted that the defence position was ‘a bit hazy’ and said to the judge:
I just hope, your Honour, that the defence have properly considered where this is all going.
The prosecutor again pointed out to the judge that the complainant’s interview was ‘littered with references to violence’.
Following these further exchanges, trial counsel sought time to clarify his instructions. Quite properly, the judge acceded to that request and adjourned the matter till the following Monday. On the resumption, trial counsel informed the judge that he was ‘content with the way things were and are proceeding’. Counsel continued:
Perhaps just to elaborate, only to a very, very small extent, it will not be put to the jury that there was no violence.
If it was the case that I was to suggest to the jury that there was no violence, then of course I’d be obliged to put that to the witnesses.
What the core of the case from my perspective is, or what I would put to the jury, is that there was no fear, and the prosecution are leading that there was an environment of fear.
That led to a delay in complaint, or circumstances regarding complaint, and also [M] making false statements and the like.
I have sought, and I will continue to target that issue, and I am going to suggest, and will continue to suggest, that there was no fear.
That was put to and will be put to other witnesses. So that’s the situation, Your Honour.
In final address, trial counsel made clear the applicant’s emphatic denials of the allegations of sexual offending. He did not, however, say anything to suggest that the allegations of violence were contested. In accordance with his strategy, he had not challenged any of the evidence of violence given by prosecution witnesses.
At the conclusion of his final address, trial counsel said:
In regards to the violence, you might also decide that there was, there was violence taking place in the house and that again would serve to be a very powerful factor to lie. Just because you accept that there was violence, doesn’t mean you accept there was any sexual offending taking place ― different things entirely.
I suggest that she may well have wanted the relationship to end between her mum and [the applicant]. She told her mum to leave him, it wasn’t going to end. It clearly wasn’t going to end, the mum resisted that, stayed with him. So she created this story to end that relationship, to get rid of [the applicant]. It didn’t work for significant period of time, 18 plus months, but eventually it did work.
In his charge to the jury, the judge addressed at some length the evidence of violence and of other alleged sexual abuse. He pointed out that the defence relied on the ‘evidence of occasions of alleged violent behaviour’ as providing:
what is in effect argued to be a motive for the complainant to lie and manufacture false allegations against the accused and get him out of her life.
The prosecution, on the other hand, relied on the evidence to establish context. In particular, the judge told the jury, the evidence was relied on to show that the complainant was not describing an isolated event or events and to place the charged offending in a ‘complete and realistic context and setting’. It was also relied on by the prosecution to explain why the complainant did not complain immediately and why she acted as she did when she was with the applicant. The violence was also relied upon to explain the conduct or state of mind of M, and why the applicant felt able to act ‘in a way that might be seen to be brazen and frequent’.
The evidence of trial counsel
In his evidence in this Court, trial counsel said that he had formed the view that it would be difficult to prevent the evidence of alleged violence from being admitted in the trial. It was likely, in counsel’s view, to be wholly or partially admissible as going to context.
As there is to be a re-trial and we have not heard full argument on the admissibility of some or all of the evidence, it is unnecessary for us to consider whether his view was correct, but it was certainly a conclusion that was open to him. As the High Court said recently in Johnson v The Queen,[4] evidence of other misconduct by an accused person:
may serve to place the offence in context in circumstances in which evidence of the offence might otherwise present as inexplicable. Other recognised contextual uses of evidence of this kind are to explain the failure to complain or to rebuff the accused; or the accused’s confidence to act as he or she did.[5]
[4][2018] HCA 48.
[5]Ibid [19] (citations omitted).
The likely admissibility of the evidence of violence underlines the degree of difficulty which confronted trial counsel. The applicant’s counsel on the appeal did not suggest otherwise. The evidence of violence was also potentially relevant if, as transpired, the complainant’s account was challenged in part because of delay and on the basis that otherwise she had a good relationship with the applicant.
According to trial counsel, he discussed with the applicant at their first conference the likelihood that some or all of the evidence of violence would be ruled admissible. We should point out that, when the applicant himself gave evidence in this Court, he denied that counsel had discussed the issue of violence with him at any time before the trial. In view of our conclusion, it is unnecessary to resolve this dispute of fact.
Under cross-examination, trial counsel gave the following account of what he had said to the applicant:
I indicated that, in my view, it would be difficult to challenge all of the allegations of violence, but instead, it could be used as a motive to lie and that would be done by ― that evidence would be given and I eventually would close to the jury, indicating that that would be a motive for the complainant to fabricate, now fabricate an allegation of sexual offending.
…
We discussed each of the allegations contained in the depositions. I indicated that each of the witnesses would be cross-examined about the allegations of sexual offending, or the complaint and that during that process, the allegations of violence would be ― would be placed before the jury and I would eventually close to them, indicating that that was the motive for ― for the complainant to fabricate the allegations of sexual offending.
According to trial counsel, he explained to the applicant that, in order to be able to make use of the evidence of violence as providing a motive to lie, he would not be able to challenge that evidence when it was given. He also explained that there would be no denial of the evidence but, at the same time, he would make no concession about it.
As senior counsel for the applicant pointed out in this Court, however, no question of such a concession could have arisen. As became clear during the cross-examination, the only source of trial counsel’s instructions with respect to the allegations of violence was the applicant’s denial in the record of interview. For reasons which remained unexplained, trial counsel did not, at any time, seek the applicant’s instructions on whether the allegations of violence were denied.
As appears from the transcript extract set out above, counsel told the judge that he was ‘going to say that the violence was denied’. In the event, however, there was no such denial. As counsel explained in evidence before this Court, such a denial would have undermined the very ‘motive to lie’ argument which he proposed to advance.
Quite properly, senior counsel for the applicant in this Court sought to explore with trial counsel whether he had taken into account, and had explained to the applicant, the adverse consequences of the proposed strategy. In response, trial counsel said that he had told the applicant that, in order for the ‘motive to lie’ possibility to be considered by the jury, they would have to accept that he had been violent.
He acknowledged, however, that he had not explained the disadvantages which would flow from the jury accepting that he had been violent, namely, that this would:
·corroborate significant parts of the evidence of the complainant and of M;
·support the complainant’s explanation of her delay in complaint; and
·show the applicant to have lied about the violence in his record of interview.
Trial counsel said he did tell the applicant that, if the jury accepted that he had been violent, it could cause them to have ‘very strong feelings against him’. Under further cross-examination, he confirmed that he had not told the applicant that:
·leaving the allegations of violence unchallenged might affect the defence’s proposed reliance on evidence of the applicant’s good character; or
·he was not going to put to the complainant that the violence was the reason for making false allegations.
Finally, and quite properly, trial counsel accepted that, if the applicant was denying violence, he was under an obligation to challenge those witnesses who gave evidence of violence. Moreover — and crucially — he accepted that he could not in those circumstances invite the jury to accept that the applicant had been violent.
Trial counsel did not accept that his submission to the jury — that they ‘might also decide that there was violence taking place in the house’ — was an invitation to accept that there had been violence. He did concede, however, that the making of that submission, in circumstances where he had not challenged any of the evidence about the violence, meant that the jury could not have come to any other conclusion but that there was violence. This was a proper concession, in our view, reflecting the candour which characterised trial counsel’s evidence.
Consideration
In our view, the strategy which trial counsel adopted was untenable. Relevantly for present purposes, it was productive of a substantial miscarriage of justice.
It is, of course, trial counsel’s duty to conduct the defence so as to maximise the accused’s chances of acquittal. But the course adopted must be consistent with — and is therefore constrained by — the accused’s instructions. In the present case, as we have made clear, trial counsel’s only instructions with respect to the alleged violence were that the applicant denied the allegations. Having elected not to seek express instructions from the applicant on this question, trial counsel was bound to conduct the defence on the basis of that denial.
It followed, as trial counsel conceded in the witness box, that so long as those remained his instructions, he was obliged to challenge the evidence of violence. He was prohibited, moreover, from advancing any submission which might be taken by the jury as an invitation to conclude that the applicant had been violent. Although counsel had told the judge that he would deny violence, that is not what occurred. Given that there was no challenge to the evidence of violence, counsel could not invite the jury to reject it. That precluded him from a middle course in which he would invite the jury to reject the evidence and, at the same time, submit that in the event that the jury accepted it, that evidence only strengthened the motive to lie. In short, there was no middle course.
In any event, as the cross-examination of trial counsel in this Court powerfully demonstrated, the strategy of leaving the allegations of violence unchallenged had grave forensic disadvantages, ranging from the strengthening of the evidence of the relevant Crown witnesses to providing an explanation for the delay in complaint and, as importantly, portraying the applicant in a most unfavourable light. The tacit acceptance that the applicant had lied to police about the allegations of domestic violence was especially damaging in a case where the defence hinged on the jury accepting the applicant’s denials, given in the same interview, about the sexual offending. Counsel understandably had concerns about having to meet the additional burden of the allegations of violence and sought to make the best of a difficult case. However, in the absence of clear instructions to admit the violence, he could not proceed on the basis that the violence was, in effect, accepted but seek to marginalise its importance.
As senior counsel for the applicant submitted, this is not a case where the Court needs to examine the advantages and disadvantages of the forensic decision made, in order to assess whether it was reasonably open to trial counsel to make the decision which he did.[6] Rather, this strategy was simply unavailable from the outset. Its very premise was the jury accepting that the applicant had been violent. On trial counsel’s instructions, that was something which he could never ask the jury to conclude.
[6]Cf Nicholls v The Queen [2016] VSCA 250.
The fact that the jury were left to act on the uncontested evidence of violence, when trial counsel’s obligation required him to challenge that evidence, serves only to underline the serious miscarriage of justice which occurred. For the applicant to have had a fair trial, his defence had to be conducted on the express basis that the allegations of violence were denied.
It was for these reasons that we concluded that the appeal must succeed and the convictions be set aside.
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