Lack v The Queen
[2011] VSCA 246
•23 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0078
| GAVAN LACK | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HANSEN JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 July 2011 | |
DATE OF JUDGMENT: | 23 August 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 246 | |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Parsons, 12 March 2010) | |
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CRIMINAL LAW - Appeal against conviction - Direction as to complaint evidence - Whether direction undermined defence case - Whether direction precluded an interpretation consistent with innocence - Application for leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Melasecca Kelly & Zayler |
| For the Crown | Mr T Gyorffy, SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have had the opportunity of reading in draft the reasons of Whelan AJA. I agree with his Honour, for the reasons that he gives, that grounds 2 and 3 should be rejected.
I turn to ground 1.
The evidence
The relevant evidence with respect to statements made by the complainant concerning the alleged rape was as follows:
1.Evidence of the complainant in examination in chief that -
·she had not given details of what had happened to her parents on the night of the incident;
·she told a friend, Miss H, ‘pretty much … what had happened straight away’;[1] and, about two days later, she told Miss H ‘everything,’ that the applicant had ‘fingered’ her.
[1]It was on the day following the incident. The complainant had travelled to Noosa with her friend and friend’s family.
2.Evidence of the complainant in cross-examination that –
·about three weeks after the incident she told her father ‘what had happened’, ‘exactly what occurred’;
·on the night of the incident, she had not told her parents that the applicant had put his fingers in her vagina.
3. Evidence of Miss H that –
·shortly after she and the complainant arrived at Noosa on the day after the alleged incident, the complainant told her that the applicant had ‘sexually assaulted’ her;
·over the next couple of days, she was told ‘small, little details’. The details included the statement that the applicant had ‘put his fingers’ into the complainant.
·the applicant had ‘pulled her pants down and started fingering her and stuff’ (this was evidence given in cross-examination)
4.Evidence of the complainant’s mother, in examination in chief, that -
·when the complainant returned home on the night of the alleged rape, she asked the complainant if something was wrong, and the complainant ‘just nodded;’
·the next day, the complainant gave no details of what had happened, except that, in response to the question ‘did he touch you with his penis’, the complainant replied ‘no’;
·she had never been given any detail by the complainant of what had happened.
5.Evidence of the complainant’s mother, in cross-examination, that on the night of the incident the complainant said that the applicant ‘touched [her] down there … during the massage’.
6.Evidence of the complainant’s father in examination in chief that-
·on the night of the incident, the complainant eventually said - ‘he … touched me down there’;
·in a phone call made from Noosa, the complainant said that the applicant ‘stuck his fingers into her’;
·the complainant had described the incident in more detail on 16 October.
Then there was evidence of statements made by the applicant concerning the alleged rape. It was as follows:
1.Evidence constituted by the applicant’s record of interview that, whilst massaging the complainant, she had jumped up, visibly upset, and had accused him of touching her vagina; that ‘if there was any inadvertent contact with [the complainant’s] vagina, it would have been a split second as [he] was massaging [the complainant’s] “glutes”’; and that he had said to the complainant ‘look, you know, if I did, it was purely an accident from massaging [your] “glutes’’.’
2.Evidence of statements made by the applicant to the complainant’s parents when he took the complainant back to the family home on the night of the incident:
·the complainant gave evidence that the applicant had told her parents that he was giving her a massage and had touched her inappropriately;
·the complainant’s mother gave evidence that the applicant had said that he had made a bad error of judgment, that he had touched the complainant inappropriately, that he had betrayed the trust of the complainant’s parents and the trust of his own family, and that he apologised;
·the complainant’s father gave evidence of statements made by the applicant on the night of the incident which corresponded closely with evidence given by the mother.
3.Evidence of apologetic messages left by the applicant on two occasions subsequent to the night of the incident. They added nothing to the applicant’s account of events.
The issue
I have set out the relevant evidence in some detail because it highlights the threshold issue on the count of rape: had the Crown proved that the applicant had digitally penetrated the complainant? On the one hand there was the direct evidence of the complainant that he had done so, met by the applicant’s denial in his record of interview. Then there were – (1) the complaints of penetration made to Miss H and the complainant’s father; (2) the statements attributed to the complainant by her parents, made on the night of the incident, that the applicant had ‘touched her down there’ whilst massaging her; (3) the applicant’s statements, made to the parents on that night, that he had touched the complainant inappropriately whilst massaging her; and (4) the very qualified admissions, in the applicant’s record of interview, that if he had touched the complainant, it had been accidental and fleeting.
It is certainly the case that defence counsel sought to distinguish between penetration and ‘inappropriate touching’ – at least the applicant’s account being incompatible with such touching involving penetration.
The relevant legal framework
The trial was conducted in January 2010.
In respect of the complaints –
1. s 61 of the Crimes Act 1958 potentially applied;
2.s 66 of the Evidence Act 2008 which relates to hearsay evidence in criminal proceedings, did apply;
3.s 377 of the Criminal Procedure Act 2009 (as amended by Act 68 of 2009), which relates to evidence of complaints made by a complainant in a sexual offence criminal proceeding (both evidence of the complainant, and hearsay evidence of complaint made) did apply.
This statutory regime is very different to that which preceded it. The potential impact of complaint evidence is much enlarged, in that its relevance now extends (subject to exceptions) beyond the question of credibility to proof of facts in issue.
The submissions as to what direction should be given
Counsel for the applicant stated that no criticism was raised about delay in complaining. He submitted that the jury could take account of the complaints made, and weigh them as part of the factual matters. The problem was, he submitted, that the complaint had changed as it went along. He further submitted that what the complainant had said to her parents on the night of the incident was a complaint, and that she had made two further complaints - to Miss H, and to her father some weeks later.[2]
[2]He seems to have said nothing about the telephone conversation between the complainant and her father, made whilst the complainant was still in Noosa.
The prosecutor agreed that the complaints were those identified by counsel for the applicant. He agreed that the judge should charge the jury that the complaints were evidence of the fact and evidence bearing upon the complainant’s credibility.
There was, to be clear, no submission by the prosecutor that the complaint made by the complainant to her parents on the night of the incident was not a complaint relevant to the count of rape because it was not a complaint of rape. That accords with what he said about the complaint in his final address.
Counsel’s final addresses
The prosecutor submitted that the complainant was not a person who had gone on for years without telling anyone about what the applicant had done. As soon as she got home, she had said ‘he touched me down there’; and that, said the prosecutor, was ‘enough at that point in time’. Then the complainant had taken two hours to get her story out to Miss H. The ‘bottom line’ was that ‘at all times’ the complaint was ‘consistent with the … sexual penetration.’
It is noteworthy that the prosecutor specifically addressed only two of the complainant’s complaints; and one of them, which he highlighted, was the complaint of touching.
Counsel for the applicant submitted that his client’s initial apology to the complainant’s parents was for touching their daughter in the course of massage – not for penetrating her. Then their daughter had said ‘he touched me down there.’ The applicant had not been there when she said this. There was no reason why the complainant could not have then said that she had been penetrated. She had said that she had been touched, because that was what had happened. The later account, given to Miss H, was a false elaboration, including an account of an offer of a bribe to say nothing, and fear of death. Once the complainant had gone down that path, there was no turning back when she spoke with her father. In summary, the complainant had told ‘at least four different stories’, and for that and other reasons her evidence should not be accepted.
It was plainly counsel’s submission that the complainant’s complaint of being touched had the same connotation as the applicant’s admission to her parents, made on the night of the incident, that he had inappropriately touched their daughter.
The course of events shows that there was a contest between the Crown and the applicant as to whether the complainant’s statement that ‘he touched me down there’ was or was not a complaint of penetration. From the Crown’s standpoint, the fact that the statement had first been disclosed in cross-examination of the complainant’s mother was irrelevant. Evidence of the statement had thereafter been adduced by the prosecutor from the complainant’s father, and the prosecutor had specifically relied upon the statement as a complaint of rape. To the contrary, applicant’s counsel had sought to equate the complainant’s statement with the applicant’s admission of a non-penetrative touching. Whether the statement had one or other complexion was, in my opinion, a question for the jury.
The charge
The judge, relevantly, gave this direction:
… you have heard evidence that [the complainant] made complaints about what had happened and on three occasions. I want to just tell you about how you assess that evidence. I want to remind you, firstly, there was the complaint she made to her mum and dad on that, I think, the early hours of 24 September or, I think it was about 2.00 am.
To her mother and father, I think it was both of them, the early hours of the morning when she said, he touched me down there. That was the first complaint she made. The second occasion was the following day on 24 September to [H], I think that was when she was up in Noosa and, again, I am not going to read from the transcript, I just want to remind you of the thrust of what [the complainant] said to [H], because I am going to come back and go through their evidence and remind you, in the way, that which they gave it and the flow of it, but I just want to remind you of what the complaint was, at this stage, before I tell you how to use it, as a matter of law.
So 24 September to [H], when [the complainant] said she was at Gav's house, after 10.00 pm, they were watching TV, there was massage, he pulled down her pants and put fingers in her vagina. During the course of that, her wrist was injured, when holding her down, tried to get out the door, but the doors were barred and the phones were taken. You will recall that is a summary of the complaint she made to [H].
On 16 October, which is about three weeks later, you will recall that [the complainant] says that she talked to her father and told her father and, again, the summary of it was that she had a spa, a sore back, she was being massaged, he pulled her trunks down, he put her fingers in her vagina, phones were taken, tried to get the phone back, but could not and detained her at his house and took the phone.
Remember those three occasions. That early hours of the morning to mum and dad, the next day to [H] and about three weeks later to dad. They are the complaints. We call them complaints.
I now want to explain to you how you can use that evidence. It is for you to determine whether [the complainant] made the complaints, in the way that are described by each of those three people or three occasions. If you find she did, you can use the complaint in two ways.
First, you can use the contents of [the complainant’s] complaint as evidence in the case. For example, you can use [the complainant’s] statement that he touched her, down there, inserted his fingers into her vagina, as evidence that he did, in fact, do that. That is, he did, in fact, put his fingers into her vagina.
When considering this evidence, it is important to remember that just because a person says something, on more than one occasion, that does not mean that what she says is truthful or accurate. A false or inaccurate statement does not become true and accurate, by virtue of being repeated.
Secondly, you can use ‘the complainant’s] complaint to assess her credibility. The fact that [the complainant] made the complainant (sic) and the content of that complainant (sic) may show that her account of the events in question, has been consistent. It may also show that kind of reaction, ordinarily, to be expected of a victim of the alleged offence.
In this case, the prosecution submitted the fact that [the complainant] complained about the alleged incident, in this manner, makes it more likely that she is telling the truth and, of course, you have heard, from [counsel], that the defence disputes this, because, in part, they say that her complaints vary, (indistinct) that [counsel] has taken you to, over a number of occasions.
The judge was evidently concerned, in what was then a very new statutory regime, to explain to the jury that the complainant’s evidence could now be used for two purposes.
The resolution of ground 1
The applicant attacked, before us, this paragraph in the charge:
First, you can use the contents of [the complainant’s] complaint as evidence in the case. For example, you can use [the complainant’s] statement that he touched her, down there, inserted his fingers into her vagina, as evidence that he did, in fact, do that. That is, he did, in fact, put his fingers into her vagina.
Counsel submitted that this direction foreclosed the jury’s consideration whether the complaint of touching was not a complaint of penetration at all.
With respect, for several reasons I do not agree.
First, it had not been suggested for the applicant that the prosecutor was prohibited from arguing that the complaint of touching was a complaint of penetration. Issue had been joined in that connection. It was not wrong, in the circumstances, for the judge to tell the jury that it could (not, must) use the complaints of both touching and penetration as evidence that the applicant did penetrate the complainant.
It would have been best had the judge immediately made it clear that the complaint of touching was said for the applicant to be evidence of touching only, not of penetration; and that, if the jury so regarded it, it would stand as evidence as a non-penetrative act, this denying the count of rape. But I think that his Honour did capture the gist of the issue when, soon thereafter in his charge, in the context of credibility, he identified the submission for the applicant that the complainant’s complaints had varied. It is, I think, grossly improbable that the jury could have thought that what his Honour said about asserted variation in complaints was relevant only to the question of credibility.
I should draw attention also to his Honour’s charge in respect to penetration. He said this:
In this case, as I say, sexual penetration means the introduction of [the applicant’s] finger into [the complainant’s] vagina. T[he applicant’s] finger does not need to have gone in all the way into [the complainant’s] vagina. Even slight penetration is enough. However, there must have been penetration to some extent. This includes penetration of the external genitalia, that is the external lips of the vagina, and that, as I say in my comment to you, is where both the prosecution and the defence join issue.
His Honour’s comment focused the jury upon the issue of penetration on the one hand or (one meaning of) touching on the other.
In summarising counsel’s addresses, the judge noted that the prosecutor’s submission that, on the night of the incident, the complainant, though very upset, ‘says enough to let them know that [the applicant] touched [her] down there.’ He noted that the applicant’s counsel had submitted that the complainant had said nothing on the night of the incident to dispute the applicant’s admission that he had touched her (that admission being, in substance, a denial of penetration).
No exception
The applicant’s counsel took no exception to the charge. For reasons indicated, at most he could have submitted that the judge might have highlighted at two points in his directions about the complaint evidence, rather than one, the asserted variation in the complaints. It seems very likely to me that experienced trial counsel correctly regarded the relevant portion of the charge as having sufficiently made the point.
Jury deliberations
The jury retired on 29 January 2010.
On Monday 1 February, the jury, at its request, viewed the complainant’s recorded evidence again.
On the morning of 2 February 2010, the jury asked the judge to redirect it as to ‘the difference between a touch and penetration.’ The judge repeated, but without the comment, the direction noted at [25] above.
A little later, the jury sought a redirection on the question of reasonable doubt.
Then, it appears, the jury reached unanimous verdicts on all but the rape count. That led to the judge, with the concurrence of counsel, giving the jury a Black[3] direction.
[3](1993) 179 CLR 44.
An hour or so later, again with the concurrence of counsel, the judge directed the jury that he would take a majority verdict on the rape count.
Shortly after lunch, it was the view of counsel that the jury should be discharged on count 1 – the prosecutor qualifying that by saying that there should be a discharge unless there was an indication that a verdict was imminent.
The jury was the brought back to court, and the foreman stated that he thought it was getting ‘closer to an answer.’ The jury then was given more time for consideration, and a little later it returned a majority verdict on the rape count.
The sequence of events which I have set out reveals, to my mind, the great likelihood that the jury focused upon the question of penetration or not in respect of count 1. Whilst the applicant’s counsel, in this court, relied upon that circumstance to highlight his attack on the single paragraph in the charge, it seems to me that the jury’s protracted deliberation shows that it well understood the clash in the evidence, and the disputed import on the first complaint. I consider it grossly
improbable that any imbalance in that disputed paragraph was of any consequence at all to the verdict.
Authorities relied upon by the applicant
I agree with what Whelan AJA says in that connection at [72]–[75].
Conclusion
For the reasons which I have given given, ground 1 should be rejected. In the event, agreeing as I do with Whelan AJA in respect of grounds 2 and 3, I consider that the application for leave to appeal against conviction should be refused.
HANSEN JA:
I agree that the application for leave to appeal against conviction should be dismissed.
WHELAN AJA:
On the evening of Tuesday 23 September 2008 the applicant, Mr Lack, who was then 40 years of age, took the complainant (‘C’), who was then 16 years of age, to his house in Hazelwood South. Mr Lack owned bicycle shops in Traralgon and Morwell. C was a promising young competitive cyclist. They knew each other because of their mutual interest in cycling. Mr Lack took C to his house that evening because he had made an arrangement with her father to drive her and her bike to Melbourne the following day for a trip which she was taking interstate. Mr Lack’s wife and family were not home. They had gone away on holiday.
According to C, what happened at the house that evening was that Mr Lack encouraged her to drink alcohol (most of which she says she tipped into the garden or into a pot plant), at Mr Lack’s suggestion they had a spa together, and again at
Mr Lack’s suggestion he gave her a massage. C says that in the course of that massage he digitally raped her.
According to C, after the rape Mr Lack took possession of both her phone and the wireless landline phone so as to prevent her using them, and prevented her from leaving the house for some two hours. At one point she says he wrestled with her after she had grabbed her mobile phone from his pocket.
According to Mr Lack in his record of interview, the entire situation was the result of him having possibly accidentally touched her genitals in the course of a massage, and the aftermath was the result of her reaction which made him anxious to encourage her to calm down and talk about the situation before he drove her back to her home.
After a trial in the County Court, on 2 February 2010 the jury found Mr Lack guilty of one count of rape (by a majority), one count of false imprisonment (unanimously) and one count of assault (unanimously). The jury found Mr Lack not guilty of one count of theft. There had been a directed verdict of not guilty in relation to another count.
The trial judge heard a plea on 18 February 2010 and sentenced Mr Lack on 12 March 2010 to a term of imprisonment.
Mr Lack now seeks leave to appeal his conviction. He had sought leave to appeal his sentence but he abandoned that application.
The grounds of appeal are as follows:
GROUND 1:
The Learned Trial Judge erred in directing the jury that the evidence of the ‘complaint’ by [C] that he ‘touched her down there’ could be used as evidence that the Applicant did in fact insert his fingers into [C’s] vagina.
GROUND 2:
The Learned Trial Judge erred in his directions as to the mental element involved in the offence of false imprisonment.
GROUND 3:
The Learned Trial Judge erred in failing to adequately relate the evidence and the defence case to the issues in the case.
GROUND 4:
The Learned Trial Judge failed to adequately direct the jury in response to their request for an explanation as to the difference between touching and penetrating the vagina.
GROUND 5:
The Learned Trial Judge failed to adequately direct the jury in response to their request for an explanation of the term ‘beyond reasonable doubt’.
GROUND 6:
The trial of the Applicant miscarried in that prior to the time in which they were directed as to a majority verdict – the jury indicated that they had reached a decision on Count 1 – in circumstances where such decision could not have been made as a result of the process of deliberative reasoning characteristic of unanimous decision making.
GROUND 7:
The verdict of the jury was unsafe and unsatisfactory.
Grounds 4, 5 and 6 were abandoned. As to ground 7, the Court was told that it would not be argued by the applicant unless the Crown took a particular course, which it did not. Accordingly, it was also abandoned.
Ground 1:
The first ground of appeal is that the learned trial judge erred in directing the jury that evidence of one particular complaint by C, namely that he had ‘touched her down there’, could be used as evidence that Mr Lack did in fact insert his fingers into C’s vagina.
The passage of the charge complained of is a passage where the trial judge was dealing with evidence given about complaints C made after the incident. There were a number of occasions upon which complaints were made. In relation to the one which is the subject of this ground, the relevant evidence was given not by C herself, but by her parents.
After the incident Mr Lack had driven C back to her home. He went inside after her. He said something to her parents to the effect that he had or may have touched her ‘inappropriately’ and that she had been upset. So much was uncontroversial.
The parents gave evidence that after Mr Lack had left that night C had said to them that he had ‘touched me down there’. C made more detailed complaints which included the assertion that he had inserted his fingers into her vagina on different later occasions.
In the course of explaining to the jury the ways in which they could use evidence of the various things C had said about the incident, his Honour firstly reminded them of three separate occasions of complaint; the first being what might be described as the ‘touched me down there’ complaint and two later complaints which included assertions he had inserted his fingers into her vagina.
The judge then said:
First, you can use the contents of [C’s] complaint as evidence in the case. For example, you can use [C’s] statement that he touched her, down there, inserted his fingers into her vagina, as evidence that he did, in fact, do that. That is, he did, in fact, put his fingers into her vagina.
It was submitted on behalf of the applicant that the trial judge had directed the jury that the ‘touched me down there’ complaint could be used as evidence that the applicant in fact penetrated her vagina with his fingers. It was submitted that that complaint could not bear that interpretation and that what the judge had said had the potential to significantly undermine part of the defence case. The applicant particularly relied upon two decisions of this Court, being Watson v The Queen[4] and Miller v The Queen.[5]
[4][2010] VSCA 189 (‘Watson’).
[5][2011] VSCA 143 (‘Miller’).
On behalf of the respondent it was submitted that the first complaint was relied upon by the defence not the Crown. It was submitted that there was nothing objectionable in the relevant passage before the last sentence and that, in the context, the last sentence could only have been understood as a reference to the complaints where C had specified that she had been penetrated. It was submitted that given the way the matter was dealt with in the trial as a whole, the jury could have been in no doubt about the distinction between the two sets of complaints.
As I indicated earlier, the evidence that C had said that he had touched her down there was not part of her evidence, either in chief or in cross-examination. When asked about her return to her parents’ house that night when she was giving evidence in chief she agreed with a proposition put to her that she did not tell her mother or father any ‘details’ of what had happened. In cross-examination she agreed with propositions put to her that her parents did not ask her questions, and that she certainly did not tell them that her bikini bottoms had been pulled off or that Mr Lack had put his fingers in her vagina. It was not put to her that she had told her parents he had touched her down there.
The evidence of the ‘touched me down there’ complaint came first from C’s mother. It was not led in evidence in chief. It was led in cross-examination. Counsel for Mr Lack put to C’s mother that C had said to her that he had touched her down there and she responded that C did say that. C’s father in his evidence in chief said that C had told them that night ‘he touched me down there’, and he confirmed that in cross-examination.
Mr Lack was represented at the trial by an experienced criminal barrister, Mr Dunn QC. The evidence of the complaint to the parents to the effect that he had touched C down there was, in the first instance, led by the defence; and it was relied upon by the defence as being an important part of the defence case. What the defence put to the jury was that Mr Lack had gone into the parents’ bedroom and had referred to inappropriate touching in C’s presence. It was put to the jury that it was a matter of great significance that C’s response to those statements, after Mr Lack had left, was not a complaint that he had put his fingers in her vagina but rather the statement that ‘he touched me down there’. This statement, so it was said, was true and was consistent with the defence case of a misunderstood (possible) inadvertent touching and was inconsistent with the prosecution case of a digital rape. The ‘touched me down there’ complaint was also a factor relied upon by the defence in seeking to undermine the credibility and reliability of C.
In final address the ‘touched me down there’ complaint was also relied upon by the Crown. The submission was that that complaint was ‘enough’ in the circumstances then prevailing.
Notwithstanding the defence position that the ‘touched me down there’ complaint was in effect an inconsistent statement, counsel for Mr Lack submitted to the trial judge that this complaint, along with the others, fell within s 377 of the Criminal Procedure Act 2009, and accordingly, pursuant to s 377(6), they were all capable of being used to bolster her credibility. Under the Evidence Act 2008 they were also capable of being used as evidence of the truth of what was asserted.
The passage complained of in the judge’s charge is a passage where the judge is addressing the issue of s 377 of the Criminal Procedure Act and the Evidence Act 2008. He dealt with all three complaints in that context in accordance with submissions which had been made to him by counsel for Mr Lack. No complaint is now made about the directions given on those matters, with the exception of the complaint which is the subject of the first ground of appeal.
Referring back to the passage in the charge which I have quoted above and which is the subject of complaint, the first sentence is correct. The second sentence which begins ‘For example’ is not inaccurate, given that the contents of the three complaints had just been set out by the judge. The conflation of the three was, however, if viewed in isolation, potentially confusing. The last sentence is, in isolation, potentially misleading in that, if one interprets it as referring to all the complaints it would suggest they all have the same meaning. Of course, the judge does not say they all have the same meaning, and the entire passage is about what the jury ‘can’ use the evidence for not what they ‘must’ use it for.
It is also important to emphasise that the jury were in no way bound to treat the ‘touched me down there’ complaint as inconsistent with the other complaints. They could well have seen them as consistent, as the Crown submitted.
The statement complained of, in isolation, could have been better put. If the judge had said in the last sentence: ‘That is, he did, in fact, touch her down there or he did, in fact, put his fingers into her vagina’ there would have been no ground for complaint.
In oral argument it seemed to me that it was being put on behalf of the applicant that the judge directed the jury as a matter of law that the first complaint was to be treated by them as a complaint of penetration. I do not accept that. It is not what he said.
It is submitted on behalf of the applicant that the judge in this passage substantially undermined the defence case. I do not accept that either. The jury saw the way the evidence emerged and who led it. Its potential significance was obvious. Mr Lack’s counsel in his final address emphasised the issue. After the contentious passage, the judge went on to repeat the argument of Mr Lack’s counsel in that respect later in his charge.
There is no doubt as to the importance of the distinction between a touch and penetration in this case, and a jury question confirms that they were focusing upon that important issue. I do not consider that there was any risk that what his Honour said operated to preclude them from considering whether a ‘touch’ meant no more than that.
It is important that the risk now said to have been created by the trial judge was not perceived by Mr Lack’s counsel at the time who took no exception and made no complaint about this passage in the charge.
I turn to the two authorities relied upon.
One issue dealt with in Watson also concerned a complaint about touching. In that case there had been no indication in the complaint of where the touching had been. The relevant legislation in that case was the Evidence Act 1958, and in particular s 41D. In Watson the evidence of complaint had been objected to on behalf of the accused, but the judge had admitted it. The point of contention on appeal was whether she had been correct to do so on the basis that it went to both credit and the truth of what had been asserted. It was held that she should not have admitted it as evidence of the truth of the fact asserted because the complaint was so imprecise that it could not be regarded as probative. In Watson the Crown also conceded a similar point in relation to another complaint.
No such issue arose in the trial here, and no such issue arises now. Counsel for Mr Lack submitted to the trial judge that all three complaints were admissible as going to credit and as proof of the facts asserted, by virtue of the combined operation of s 377 of the Criminal Procedure Act and the Evidence Act 2008. That was announced to the trial judge as an agreed position with the Crown. The trial judge proceeded accordingly.
Miller was about what constitutes availability within the meaning of s 66 of the Evidence Act 2008. Its only relevance to this case is the fact that there was also a complaint of touching in that case, and the fact that Ashley JA in that case foresaw the possibility of an accused contending for relevance and admissibility on the basis that such a complaint might be said to contradict evidence of penetration.
That was just how the defence here did seek to use the statement. Far from contending, as in Watson, that the touching complaint ought not to have been admitted as proof of the facts asserted, in this case that was the very way the defence sought to use it, as well as using it in seeking to undermine C’s credit.
Finally, I return to the issue of the absence of complaint by defence counsel at the time. When giving a charge a trial judge must attempt to communicate with twelve lay people. The more that is read, the less real communication there is. The more the judge attempts meaningful communication as opposed to reading a lecture, the more likely it is that slips will occur and infelicitous expression will be used. The person best placed to assess whether the defence is disadvantaged by something said which could have been put better, is defence counsel. In such a situation, when competent defence counsel do not perceive a cause for concern at the time, it should be a rare case where it is then concluded later that jurors were told something in a way which unjustifiably disadvantaged the accused.
This ground should fail.
Ground 2:
It was submitted on behalf of the applicant that the directions given in relation to the false imprisonment count were inadequate. As I understood it, what was put was that, whilst the jury were correctly told the elements which must be established beyond reasonable doubt, the directions as to the law when combined with comments made by the judge effectively removed from their consideration all elements other than the issue of lawful excuse.
In my view there is no substance in this complaint. It is not suggested that the trial judge failed to correctly tell the jury what the elements of the offence were or that he failed to make it clear to them that the prosecution had to establish each of those elements beyond reasonable doubt. As to the comments made, three matters are significant. First, the judge made it clear that they were his comments, that they were not directions, and that the jury could accept them or disregard them depending upon their own view of the evidence. Secondly, whilst counsel for Mr Lack was not always entirely consistent, the judge’s comments reflected submissions which had been made to him by Mr Lack’s counsel and reflected the defence address to the jury. Finally, the absence of any exception or complaint by defence counsel is, again, significant.
Ground 3:
The applicant says that the judge failed to sufficiently relate the evidence to the issues in the case and in particular to the defence case.
In the applicant’s written submission it was suggested that this failing appeared most clearly in the directions concerning the count of false imprisonment. In oral submissions it was suggested that this ground overlapped with ground 1.
I have already dealt with the issues raised in ground 1 and with the issues raised concerning the false imprisonment count.
Again, it is significant that no exception was taken and no complaint was raised by defence counsel in relation to this matter at the time. The only matter he raised concerned the issue of whether an honest and genuinely held view of entitlement would constitute a lawful excuse. That is not a matter that was raised before us.
I do not consider that there is any substance in this ground.
The application for leave to appeal the conviction should be refused.
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