Lancaster v R

[2014] VSCA 333

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0264
SHAUN RANDALL LANCASTER	Applicant
v
THE QUEEN	Respondent
S APCR 2013 0190
SHAUN RANDALL LANCASTER	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and REDLICH JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 May and 28 November 2014
DATE OF JUDGMENT	17 December 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 333
JUDGMENT APPEALED FROM	DPP v Lancaster (Unreported, County Court of Victoria, Judge Mullaly, 10 April 2013)

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CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr Simon Gillespie-Jones and Ms Elizabeth McKinnon	Riordan Legal Pty Ltd
For the Crown	Ms F L Dalziel	Mr Craig Hyland, Solicitor for Public Prosecutions

NETTLE JA

REDLICH JA
ALMOND AJA:

1. These are applications for leave to appeal against convictions of sexual offences alleged to have been committed against two complainants, CA and CB.  There are also applications for leave to appeal against sentence.

1. In July 2012, the applicant was tried for the offences alleged to have been committed against CA and convicted of one charge of indecent act with a child under 16 years and two charges of sexual penetration of a child under 16 years (‘the CA offences’).  In February 2013, he was tried before the same judge but with a different jury for the offences alleged to have been committed against CB and he was convicted of one charge of indecent act, one charge of indecent act with a child under 16 and one charge of threat to kill CB (‘the CB offences’).  Following a plea in mitigation of penalty, on 10 April 2013, he was sentenced for the CA offences and the CB offences as follows:

Charge on Indictment A10748905.1 Complainant ‘CA’	Offence	Maximum	Sentence	Cumulation
1	Indecent Act with a Child under 16 years (Crimes Act 1958 (Vic) s 47(1))	10 years (Crimes Act 1958 (Vic)s 47(1))	4 months
2	Sexual Penetration of a Child under 16 years (Crimes Act 1958 (Vic) s 45(1))	25 years (Crimes Act 1958 (Vic) s 45(2)(a))	3 years	1 year
3	Sexual Penetration of a Child under 16 years	25 years	3 years	Base sentence

Charge on Indictment A10748905 Complainant ‘CB’	Offence	Maximum	Sentence	Cumulation
1	Indecent Act with a Child under 16 years	10 years	5 months
2	Sexual Penetration of a Child under 16 years	25 years	4 years	Base sentence
3	Make Threat to Kill (Crimes Act 1958 (Vic) s 20)	10 years (Crimes Act 1958 (Vic) s 20)	12 months	4 months
Total Effective Sentence for ‘CA’ Indictment: Total Effective Sentence for both Indictments:		4 years’ imprisonment, 3 years cumulative on ‘CB’ indictment. 7 years, 4 months’ imprisonment.
Non-Parole Period:		5 years’ imprisonment.
Pre-sentence Detention Declared:		267 days
6AAA Statement:		N/A
Other orders:  The applicant was placed on the Sex Offenders Register for Life. Section 464ZF ‘Forensic Sample’ Order made.

Summary of issues raised on appeal

1. The issues which arise for determination in this matter are as follows:

1)Whether files maintained by the Department of Human Services (‘DHS’) and other cognate organisations in relation to the complainants were admissible into evidence as business records under s 69 of the Evidence Act 2008 (‘the Evidence Act’).

2)Whether the contents of the files were rightly excluded as hearsay, innuendo, speculation or rumour.

3)Whether the exclusion of the business records was productive of a substantial miscarriage of justice.

4)Whether expert opinion evidence based upon facts recorded in the records was admissible to establish a possibility that the complainant was suffering from a psychological disorder which resulted in her honestly, but erroneously, attributing to the applicant offences committed against the complainant by another offender.

5)Whether the judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 (‘the Criminal Procedure Act’) to cross-examine the complainant on matters relating to her sexual history.

6)Whether the judge erred in prohibiting cross-examination to show that at relevant times the complainant’s mother had been associated with and consequently the complainant had been exposed to, a convicted paedophile whose actions the complainant had honestly, but erroneously, attributed to the applicant.

7)Whether evidence indicative of the applicant having a sexual interest in the complainant was admissible as tendency evidence for which the Crown needed to give notice under s 97(1) of the Evidence Act.

8)Whether the judge’s refusal to recuse himself from the conduct of the case gave rise to apparent bias.

The facts alleged — CA

1. CA was born in November 1991.  The applicant was a friend of CA’s mother and they had a mutual friend, F.  The applicant was also a friend of F’s son, S.

1. One Friday evening in or between November 1999 and November 2000, CA, her mother and her brother, B, visited F and S at F’s home.  The applicant was present.  At some point during the evening, F and CA’s mother left with B to buy takeaway food.  CA remained at the house with the applicant.  It is not clear where S was at that stage of the evening.  CA claimed that, when she and the applicant were alone, he approached her as she lay on a couch watching a movie.  She recalled that she was wearing a blue dress with flowers on it and was lying under a doona.  She claimed that he moved the doona and put his hand down her dress, touching her on the chest area.  He called her ‘Sweet Pea’.  Then he grabbed her head and pushed it towards his penis which he had removed from his tracksuit pants.  She recalled trying as hard as she could to keep her mouth shut but eventually she could no longer do so.  He made her take his penis in her mouth for a time.  Then he took it out.  It was hard and she felt sick and disgusted.  Then, he put it in her mouth again and moved her head so that it went in and out of her mouth.  She tried to get away but could not.  She remembered him touching her vagina with his fingers and then hearing car doors shutting.  She heard B’s, F’s and her mother’s voices as they came into the house.  After that, the applicant did not say anything to her.  She was scared and did not know exactly what had happened.

1. Sometime later, the applicant visited CA’s mother’s home and gave CA two gee-strings, one black and the other pink.  He asked her to put them on and show him, but she said that she refused to do so and went into her room.  She put the gee-strings in the back of one of the drawers and later threw them away.  CA said that, on other occasions when the applicant visited the house, she used to go to her room and turn her music right up and sit on the bed until he left. 

1. Years later, CA told her mother what had happened and the matter was reported to the police.  CA’s mother gave evidence at trial in which she confirmed that the applicant had attended the house on one occasion and given CA a present.  She did not see what it was but, sometime later, she saw that CA had gee-string underwear and then it was thrown away.

The facts alleged — CB 

1. CB was born in August 1995.  The applicant was a close friend of CB’s aunt.  In 2003 and 2004, the aunt lived with CB’s late grandmother and the applicant was a frequent visitor to the grandmother’s home.  CB regularly stayed there when being cared for by the grandmother.  On one occasion when CB was staying there, the applicant came to visit.  At the time, CB was around seven or eight years of age and, as she later recalled, in Grade 2 at primary school.  CB said that when she was lying on a couch, the applicant lay down with her and put his arm around her.  He ran his fingers up her leg and touched her vagina on the outside of her underwear.  Then he pulled up her skirt, put his hand over her mouth, pulled a blanket over them and got on top of her.  After moving her underpants to one side, he put his penis in her vagina and moved it in and out.  She said it really hurt but, at the time, she did not know what was going on and she was really scared.  The applicant told her that, if she said anything to anyone, he would slit her throat.  Afterwards, CB noticed blood on her underpants. 

1. In 2008, CB told her boyfriend about what had happened and in mid-2009 she told her mother and late father.  The matter was reported to the police very shortly afterwards.

CA: Grounds 1–4;  CB: Grounds 1–3 — Business records and Dr Gibbs’ opinions

CA:  Grounds 1–4 Business records and Dr Gibbs’ opinions

1.        The learned trial judge erred in failing to rule that the:

(a)medical records from the Goulburn Valley and Box Hill Hospitals, and agencies associated with the hospitals (Centre of Adolescent Mental Health);

(b)      records from Centre Against Sexual Assault;

(c)       documents from Victoria Police;  and

(d)documents from the Department of Human Services, and Department of Education;

were business records under the Evidence Act 2008, and as a consequence failed to properly decide the admissibility of that material and evidence dependent on it.

2.        The learned trial judge erred in failing to find:

(a)that the documents referred to in ground 1 herein fell in to an exception to the hearsay rule, and holding that

(b)it was necessary for the defence to call viva voce evidence of the contents of the documents, thereby causing a miscarriage of justice.

3.A miscarriage of justice occurred by the learned trial judge excluding the evidence of Dr Gibbs taking into account the following separate considerations jointly or individually:

(a)the mental abnormality of the complainants and the consequent effect such abnormality might have on the reliability of their evidence;

(b)ruling that his evidence was irrelevant and contrary to s 55 of the Evidence Act 2008;

(c)on the basis that Dr. Gibbs was not an expert in misattribution, given his expertise as to memory was accepted by the judge, and his evidence as to expertise was unopposed and unchallenged by the prosecution;

(d)on the basis that part of his evidence was not beyond the capacity of the jury to comprehend (contrary to section 80(b) of the Evidence Act 2008).

(e)as Dr. Gibbs had based part of his opinion on medical records from the Goulburn Valley Hospital and agencies associated with the hospital, it was wrongly excluded as not being of a type of document that could be lead as a business record under s 69 of the Evidence Act 2008.

(f)as Dr. Gibbs had based part of his opinion upon Centre Against Sexual Assault records, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(g)as he had based part of his opinion on documents from the Victoria Police, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(h)as he had based part of his opinion on documents from the Department of Health and Community Services, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(i)as he based his exclusion in part on his wrongful exclusion of any evidence of complainant CA’s sexual history.

4.The learned judge erred in foreclosing inquiry as to misattribution of CA’s memory.

CB:  Grounds 1 — 3 Business records and Dr Gibbs’ opinions

1.        The learned trial judge erred in failing to rule that the:

(a)medical records from the Goulburn Valley and Box Hill Hospitals, and agencies associated with the hospitals (Centre of Adolescent Mental Health);

(b)      records from Centre Against Sexual Assault;

(c)       documents from Victoria Police;  and

(d)documents from the Department of Human Services, and Department of Education;

were business records under the Evidence Act 2008, and as a consequence failed to properly decide the admissibility of that material and evidence dependent on it.

2.        The learned trial judge erred in failing to find:

(a)that the documents referred to in ground 1 herein fell in to an exception to the hearsay rule, and holding that

(b)it was necessary for the defence to call viva voce evidence of the contents of the documents, thereby causing a miscarriage of justice.

3.A miscarriage of justice occurred by the learned trial judge excluding the evidence of Dr Gibbs taking into account the following separate considerations jointly or individually:

(a)the mental abnormality of the complainants and the consequent effect such abnormality might have on the reliability of their evidence;

(b)ruling that his evidence was irrelevant and contrary to s 55 of the Evidence Act 2008;

(c)on the basis that Dr. Gibbs was not an expert in misattribution, given his expertise as to memory was accepted by the judge, and his evidence as to expertise was unopposed and unchallenged by the prosecution;

(d)on the basis that part of his evidence was not beyond the capacity of the jury to comprehend (contrary to section 80(b) of the Evidence Act 2008);

(e)as Dr. Gibbs had based part of his opinion on medical records from the Goulburn Valley Hospital and agencies associated with the hospital, it was wrongly excluded as not being of a type of document that could be lead as a business record under s 69 of the Evidence Act 2008.

(f)as Dr. Gibbs had based part of his opinion upon Centre Against Sexual Assault records, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(g)as he had based part of his opinion on documents from the Victoria Police, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(h)as he had based part of his opinion on documents from the Department of Health and Community Services, it was wrongly excluded as not being of a type of document that could be lead as a business record under section 69 of the Evidence Act 2008.

(i)as he based his exclusion in part on his wrongful exclusion of any evidence of complainant CA’s sexual history.

1. Each of the complainants was brought up in circumstances which attracted the attention of the DHS on multiple occasions over a period of years and DHS maintained files on each complainant.  Those files were produced on subpoena in advance of trial and the defence commissioned a consultant neuro-psychologist, Dr Gibbs, to review them.  Based on observations recorded in the files, Dr Gibbs produced three reports as to the possible mental state of each complainant and as to the effect of it on the reliability of the complainant’s testimony.

1. At trial, the defence sought to cross-examine each complainant on the aspects of the subpoenaed documents which were considered in Dr Gibbs’ reports and to tender the documents in support of a defence submission that each complainant was an unreliable witnesses.  The tender was objected to on the basis that the DHS records were hearsay. 

1. The defence argued that, notwithstanding the records were hearsay, they were admissible as business records pursuant to s 69 of the Evidence Act. But the judge rejected the tender.  His Honour reasoned thus:

While it is clear … that the various government departments and other  entities involved in this case could be considered a business for the purpose of [s 69], and that things written by employees of those entities and kept by those entities in files could be considered as business records, it is not the case that all things written by employees of those entities and kept in files are business records.[1]

…

It is plain that the representations contained in the written documents held within the files of DHS and other entities are not representations made or recorded for the purpose of the business — that is, the running of the department — but rather they were the notes taken by the various officers in pursuit of their various roles in the protection of children or investigating offences.  These were not records that went to any business purpose or aspect of the department.  They were observations and conclusions about a particular case, that of the complainant and her family, so as the various officers could properly perform the statutory duties of child protection in a cautious and prudent way.[2]

…

The representations, opinions, assumptions and conclusions were written down and kept on files as was appropriate. Those representations, opinions assumptions and conclusions do not become business records of DHS or the Department of Education simply because they were retained on the files of those organisations. In my view they could not be admitted in this trial as business records pursuant to s 69 [of the] Evidence Act. Given my opinion that the material on the files are not business records just how any of it can be used as a foundation for the opinions expressed by Dr Gibbs is unclear. The representation or opinions or conclusions as contained in the files are not of a character that would satisfy the foundation requirements as set out in Makita.

If I am wrong about my interpretation of s 69, then even if the material is properly define[d] as business records and thus potentially admissible, nonetheless the substance of the documents remains problematic. The provenance of the representations and assertions remains unclear. It may be some or all of the material is based on hearsay, or innuendo, speculation or rumour. In my view the material is not of a kind to provide a proper foundation for the opinions expressed by Dr Gibbs.[3]

…

As I hope I have made clear, the foundation for the assumptions that the complainant displayed sexualised behaviour or was exposed to sexual behaviour or abuse earlier in her life is not sufficiently established for the sort of expert opinions expressed by Dr Gibbs.[4]

[1]DPP (Vic) v Lancaster (Unreported, County Court of Victoria, Judge Mullaly, 11 July 2012) Ruling [30].

[2]Ibid [34].

[3]Ibid [36]–[37].

[4]Ibid [39].

1. Under cover of proposed grounds 1 to 6 of the appeal against conviction in relation to CA and grounds 1 to 3 of the appeal against conviction in relation to CB, the applicant submits that the judge was wrong in concluding that the DHS records on which Dr Gibbs based his opinions were not business records within the meaning of s 69 of the Evidence Act.

1. We agree. Clause 1 of Pt 2 of the Dictionary in the Evidence Act provides that, for the purposes of the Act, ‘business’ includes, among other things:

a)        a profession, calling, occupation, trade or undertaking;  and

b)an activity engaged in or carried on by the Crown in any of its capacities.

Thus, it includes the activities engaged in or carried on by the DHS, other analogous social welfare agencies, hospitals, medical practices and kindred health care providers. 

1. The activities engaged in or carried on by the DHS included the care of each complainant.  The entries in the DHS files on which Dr Gibbs based his opinions were, apparently, entries made by departmental officers, in the course of and as part of their duties of caring for each of the complainants.  Those entries included notes of information received and considered by departmental officers in connexion with each complainant, opinions formed and actions taken or not taken by departmental officers in relation to the care of each complainant, and the reasons or justifications for taking or not taking action in relation to each complainant as the case might be.  The entries were, therefore, parts of the records belonging to or kept by the DHS as records, and so for the purposes of the Department’s activities in caring for each of the complainants. 

1. Other things being equal, it follows that the entries in the subpoenaed documents on which Dr Gibbs based his opinions were business records within the meaning of the Evidence Act.

1. As has been noted, the judge reasoned that, because the ‘entries were observations and conclusions about a particular case … so [that] the various officers could properly perform the statutory duties of child protection in a cautious and prudent way’ they were not ‘records that went to any business purpose or aspect of the department’. 

1. With respect, however, that overlooked that, for the purposes of the Evidence Act, ‘business’ includes a profession, calling, occupation, undertaking or activity engaged in or carried on by the Crown in any of its capacities, and thus includes the activities of rendering social welfare services which the DHS exists to provide.  As so defined, the records maintained by the DHS of the facts, opinions and activities involved in rendering those services to the complainants were business records.

1. It is the same with the records of the hospitals and other agencies which were involved.  Prima facie, individual patient records maintained by a hospital, doctor or other health care provider are business records of the activities carried on by the health care provider and, therefore, are business records, even though, as the judge put it, they concern the individual patients as opposed to the running of the hospital or health care provider’s practice.

Hearsay, innuendo, speculation or rumour?

1. As noted, the judge reasoned that even if the subpoenaed documents were business records within the meaning of the Evidence Act, ‘the provenance of the representations and assertions remains unclear’ and that it may be that ‘some or all of the material is based on hearsay, or innuendo, speculation or rumour’. 

1. Potentially, there is more substance in that concern. Even so, however, it is not sufficient basis to exclude business records on the generalised basis that one or more of the entries in the record may be hearsay. It is necessary to consider each of the relevant entries individually and form a view as to whether the representation comprised in that entry satisfies the requirement of admissibility imposed by s 69(2) of the Evidence Act that the representation has been made:

(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact;  or

(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

This the judge failed to do.

1. Counsel for the respondent contended that, in order for a representation in a document to come within the description in s 69(2) of the Evidence Act, of having been made on the basis of information directly or indirectly supplied by a person who had or it might reasonably be supposed had personal knowledge of the asserted fact, it was necessary that the maker of the document have received the information directly from a person who had or it might reasonably be supposed to have had personal knowledge of the asserted fact (first-hand hearsay) or directly from a person who received the information directly from a person who had or it might reasonably be supposed had personal knowledge of the asserted fact (second-hand hearsay).

1. Counsel accepted that the natural and ordinary meaning of ‘directly or indirectly’ embraces any number of degrees of remoteness but argued that the overriding policy of the first-hand hearsay exception prescribed by s 62 of the Evidence Act, coupled with certain observations of the Australian Law Reform Commission on which the statutory hearsay exceptions were said to be based, dictated that ‘indirect’ be read as extending no further than the second degree of separation.

1. We do not accept the argument.  First, as a matter of ordinary statutory construction principle, if Parliament had intended to confine the business records exception to first and second-hand hearsay, it is to be expected that the provision would have been drafted in those precise terms rather than in terms which, according to their natural and ordinary meaning, include more remote hearsay.

1. Secondly, the term ‘directly or indirectly’ has been construed as one of ordinarily wide import in taxing statutes,[5] as well as in other contexts[6] so as to include much more remote degrees of connection than the second degree of separation.  It has been treated as isomorphic to ‘proximate or contributory’.[7] 

   [5]Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; Commissioner of Taxation (Cth) v Dixon (1953) 86 CLR 540; Commissioner of State Revenue v Politis [2004] VSC 126; Catterwell v Wright (1991) 56 SASR 581.

   [6]Wilcox v Clarke & Co (No 2) (1896) 21 VLR 752; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Gas Employees Industrial Union (1951) 82 CLR 267; Ryan v Triguboff [1976] 1 NSWLR 588; Day v Rugala (1978) 33 FLR 208; Melville v Mutual Life & Citizens Assurance Co Ltd (1980) 47 FLR 201; Australian Alliance Insurance Co Ltd v Australian Pensioner Advisory Service Pty Ltd & Blake, (Unreported, Supreme Court of Victoria, Ashley J, 28 June 1994).

   [7]Re Eldersmede Pty Ltd and Ors and Commissioner of Taxation (2004) 56 ATR 1179.

1. Thirdly, so far from suggesting that the business records exception be confined to first and second-hand hearsay, the Australian Law Reform Commission Report appears to us to recommend that the exception should extend to all degrees of hearsay leaving exclusion on the basis of unreliability to the judge’s powers to exclude otherwise admissible evidence under ss 135 to 137. As is explained in paragraph 682 of the Commission’s report,[8] the Commission’s approach was to affirm and continue the hearsay rule but to provide for two categories of exception: ‘first hand hearsay’, which is now provided for in Division 2 of Pt 3.2 of the Evidence Act; and ‘second hand and more remote hearsay’ which is provided for in Division 3 of Pt 3.2 of the Act. The Commission went on to explain in relation to the ‘second hand and more remote hearsay’ exception, that:

   [8]Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1.

Secondhand and more remote hearsay would be inadmissible unless it comes within a category of evidence chosen on the basis of reliability or necessity or both.[9]

And, later in the analysis, the Commission listed the categories of evidence chosen on the basis of reliability or necessity or both as including :

Public and Commercial Records.  Records relied upon by commercial and government undertaking should be admissible as evidence referred to in them in whatever form they are kept — paper, disk, tape or microfilm.  Such exceptions are recognised in differing ways in all jurisdictions.[10]

[9]Ibid [682].

[10]Ibid [701].

1. Fourthly, while there does not appear to be any direct authority on the meaning of ‘directly or indirectly’ in the context of s 69(2), the are cases which plainly assumed that ‘directly or indirectly’ embraces degrees of remoteness beyond second-hand hearsay,[11] and no case which we have been able to find in which the contrary has been suggested. It is enough to render the document admissible that it may be concluded that the representation was made by or on the basis of information supplied by someone who had personal knowledge of the fact within one of the alternative descriptions in s 69(2).[12]  So long as the nature and context of the recorded representation permits that inference to be drawn, the supplier of the information need not be identified.

   [11]Australian Securities Investments Commission v Rich (2005) 216 ALR 320, 365–6 [196]–[204] (Austin J); Lithgow City Council v Jackson (2011) 244 CLR 352, 361 [17].

   [12]Lithgow City Council v Jackson (2011) 244 CLR 352; Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303, [20]–[22]; Australian Securities Investments Commission v Rich, 365–6 [196]–[204] (Austin J).

The representations on which Dr Gibbs based his opinion in relation to CA

1. At the request of this Court, counsel for the applicant undertook a detailed written exercise in advance of the final hearing of these applications of identifying each of the statements of fact relied on by Dr Gibbs in forming such parts of his opinions as were sought to be tendered; sourcing those statements to the subpoenaed documents; and explaining how it was put that those aspects of the subpoenaed documents could be admitted into evidence under s 69 of the Evidence Act.  The Crown in turn was asked to provide a written response signifying where it took issue with the applicant’s analysis.  As a result of that process, the range of matters in issue has been considerably reduced.

1. In Dr Gibbs’ first report of 3 July 2012 concerning CA, he stated inter alia as follows:

3.0 Complainant [CA] — Concerns regarding mental state impacting memory.  

There are matters relevant to memory and mental state here.

[CA] complainant refers:

To ‘blocking things out’

Night mares

Being a witch

Being taught to levitate things

Having a spell cast on her where this related to a language spell

Self harm by wrist cutting from about age 10 years.

13.10.2005 — Asked to draw a Mandala about the time she was 8 (this is relevant as there is claim this looks at ‘unconscious’ including memories).  Had spoken in depth prior to this.

Having an eating disorder and believing she had this due to what the accused is alleged to have done (where there is also reference in counsellor’s notes dated 24.3.2005 to ‘not eating — history of sexual abuse/assault?  Can’t sleep happened at 8 years.’  This in context of speaking to [HI] school welfare counsellor after it appears another student said she was raped.

Hearing voices (said in 2008).

DHS Notifications: CA

I note that there is a counsellor’s note 24.3.2005 that refers to a ‘Dale’ or ‘Daniel’ — and that

There is a DHS reference to ‘Daniel’ on their interview dated 9.6.1998 that states a ‘Daniel’ is the 12 year old son of [CA’s] father — where Daniel lives in Melbourne but visits, and there is reference to the touching of private parts.  Daniel is a sibling (half) of CA.  CA has not seen her father since she was one.

On 1.12.1998 to 2.12.1998 [sic] (a period which coincides with the period 11.11.1998 to 11.11.1999 relating to the charges of CA), there is reference to a DHS notification where CA is said to be placing her hand up a young man’s pants and fondling his penis.

There is further interview on 1.2.2000 with no disclosure, and concern about mother being in a relationship with convicted paedophile for previous year.

There is report of speaking with [HI] School Counsellor in 2005 (see section above) where she is said to have been assaulted by a ‘friend of a friend’ and then ‘Shaun’ is referred to and later the defendant named.  However, the mother was present with her and it is her mother who was said to state the name.  There was a DHS notification here.

There appears factors relating to mental state that are likely to impact on the statements being made at various times, with indications of likely psychotic phenomena or personality disorder.  I caution that I have not seen the complainant.

First disputed representation

1. The first representation in dispute is Dr Gibbs’ statement that:

On 1.12.1998 to 2.12.1998 [sic] (a period which coincides with the period 11.11.1998 to 11.11.1999 relating to the charges of [CA]), there is reference to a DHS notification where [CA] is said to be placing her hand up a young man’s pants and fondling his penis.

1. The applicant submits that the representation is adequately based on subpoenaed documents 1 (20/6/2008), 4 (4/2/2000) and 24 (1/12/1998). The Crown contends that none of those documents contains a representation within the meaning of s 69(2) of the Evidence Act to the effect that ‘in 1998, CA placed her hands down a young man’s pants and fondled his penis’.

1. In our view, the representation is adequately based on admissible sections of the stipulated documents.  Document 1, which is a DHS Intake Record dated 20 June 2008 created by Georgina Rea, incorporates a history ‘copied and complied from previous case notes’ which includes the following:

1.12.1998 – 2.12.1998 [sic] Notification:  The concerns were in relation to Likelihood of Significant harm due to sexual abuse.  [CA] was displaying sexualized behaviour as she was placing her hand up a young man’s pants and was allegedly fondling his penis.  The case was closed at the intake stage with the school making a referral to CASA for counselling and due to the fact that [CA] was interviewed a few months earlier in relation to abuse however, no disclosure was made.

1. Document 4, which is a DHS General Case Note dated 4 February 2000 entered by Carmela Montuuri, includes the following:

Previous notification has been made on 1.12.1998 – 2.12.1998 [sic].  The concerns were in relation to Likelihood of Significant harm due to sexual abuse.  [Redacted] she stated that [CA] was displaying sexualized behaviour as she was placing her hand up a young man’s pants and was allegedly fondling his penis.  The case was closed at the intake stage [Redacted] making a referral to CASIS [sic] for counselling and due to the fact that [CA] was interviewed a few months earlier in relation to abuse however, no disclosure was made.

Previous notification was … made on 28.5.1998 – 19.6.1998.  The concerns were in relation to Likelihood of Significant harm due to sexual abuse, and Substantial emotional Trauma.  [Redacted] state that [CA] displays sexualized behaviour and language.  The concerns were investigated and [CA] was interviewed.  There was no disclosure and the concerns were not substantiated.  The case was closed with the school monitoring the situation. 

1. Document 24, which is a LEAP — Victoria Police CPS Case Record Summary Report, includes the following:

03/12/98

Received faxed notification for information only in regards to a female displaying sexualized behaviour.

This is the second notification received at this office, the first being on 03/06/98.  CPS and DHS investigated on the previous occasion and the allegations were unsubstantiated.

Precis of Notification

·In class on 30/11/98, the subject was observed to have her hand up a boys pants and was playing with his penis.

·When spoken to about this by teacher, [CA] denied it.

·School is aware of the first notification about the sexualized behaviour has continued and they are still concerned

1. In our view, insofar as each of the three documents identified refers to the 1.12.1998 – 2.12.1998 [sic] Notification (or second notification as it is sometimes described) it is a representation of fact made in a business record on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (namely, as we infer, CA’s teacher) that, on or about 30 November 1998, the teacher observed CA in class with her hand up a boy’s pants playing with the boy’s penis.  Consequently, we consider those representations to be admissible.

Second disputed representation

1. The second disputed representation was Dr Gibbs’ statement that:

There is further interview on 1.2.2000 with no disclosure, and concern about mother being in a relationship with convicted paedophile for previous year.

1. The applicant contends that the statement is adequately based on subpoenaed documents 2, 3, 4, 5 and 23;  and, despite initial objection, the Crown ultimately conceded[13] that Documents 5 and 23 do contain notes which fall within s 69(2) of the Evidence Act to the effect that CA was interviewed on 1 February 2000 and made no disclosure about having been touched in a ‘bad way’, and that there was concern about CA’s mother being in a relationship with the convicted paedophile, F, and that she and her children would visit him and stay in his house.

   [13]Regrettably, the Crown did not afford the trial judge the same degree of assistance.

1. Those concessions were properly made.  Document 23 is a LEAP — Victoria Police CPS Case Record Summary Report, which includes the following:

25.01.00 — S/C Bagley — 1330 hours

Contacted by Erin Styles of Hume Intake.  Notification re [CA’s mother].  Notifier contacted DHS re the mother is having a relationship with a known paedophile, [F].  [CA] has not made any discourses…

…

Notifier advised DHS that she is currently working with [DJ].  [DJ] was referred to CASA after she disclosed that [CA] had ‘took her pants down and said lets [sic] have sex with our fanny’s.  [DJ] originally disclosed this to her father who asked what happened then.  [DJ] continued to say that [CA] lay on her naked and demonstrated the notion of having sex.  No date known for when incident occurred however [DJ] was referred to CASA on 22. 12. 99.

The notifier stated that the last time she spoke with [DJ’s] mother [TJ], [TJ] told her that [CA’s mother] is having a relationship with [F] who is a convicted sex offender.  The notifier did not know if [F] was living with the Family or how long [CA’s mother] has been having a relationship with him.  DHS have had involvement with [F] re sexual assaults against a family member.  [F] was convicted and jailed for these offences.  Further information in DHS Notification.

…

1007 hours — A/Sgt Lewis

Phone call from Sue I’Anson.  Stated they had interview both [CA] and [TJ] at the school.  Nil disclosures made by either child.  Workers both had concerns re [CA] as she appeared to be evasive during the interview …

1. Document 5, which is a DHS ‘First Visit Case Note’ dated 1 December 2000, entered by Carmela Montuuri, contains a record of Ms Montuuri’s interview of CA at 1.15 pm that day.

1. Documents 2 and 4 are also relevant and in our view contain admissible representations.  Document 2, contains the following:

25/01/2000 — 03/03/2000 Notification:  Likelihood of significant harm due to sexual abuse, Substantial emotional trauma.

Concerns: that [CA’s] mother is in a relationship with [F] who is a convicted sex offender.

Rational[e] for further action:  — Whilst the sexualized behaviours described past and person, are concerning [CA] has not disclosed abuse or alleged a perpetrator.  The case has been investigated in the past and there was no concerns substantiated nor was a disclosure made.  — Further information is needed in relation to how much contact [F] is having with the children, if he is in a relationship with [CA’s mother] and if she is acting protectively.  Rational[e] for closure: Initial investigation completed no disclosures made by the children.

Mother and boyfriend have a current safety plan for the children as they spend the weekend at [F’s] home with their mother

Outcome: Initial Investigation: Case closed: No further Protective Service Program action.

1. Document 4, to which we have referred, contains the following:

The initial allegations within this notification were in concern of [CA’s mother] having a relationship with [F] who had been convicted for sexually abusing his step daughter.  The initial investigation shows that [CA’s mother] was aware that [F] was a convicted paedophile.  [F] and [CA’s mother] are utilising a safety plan for the children when the children are with their mother sleeping over at [F’s] home.

Workers interviewed both children in relation to allegations concerning the likelihood of sexual abuse no disclosures were made by either child.  [CA’s mother] explained to the worker that last year [CA] was found playing with her cousin (aged 9) whom she revealed has touched her inappropriately.

1. Ultimately, we did not understand it to be disputed that each of those representations is admissible under s 69(2) of the Evidence Act.

Third disputed representation

1. The third disputed representation is Dr Gibbs’ statement that:

There is a DHS reference to ‘Daniel’ on their interview dated 9.6.1998 that states a ‘Daniel’ is the 12 year old son of [CA’s] father — where Daniel lives in Melbourne but visits, and there is reference to the touching of private parts.  Daniel is a sibling (half) of [CA].  [CA] has not seen her father since she was one.

1. The applicant contends that representation is adequately based on the statement in Document 4 that:

[CA’s mother] explained to the worker that last year [CA] was found playing with her cousin (aged 9) whom she revealed has touched her inappropriately. 

1. The Crown contends that the statement is not admissible as evidence of the truth of the facts asserted because, although the statement ascribes the report to CA’s mother, it does not provide information from which it may reasonably be inferred that the mother had personal knowledge of the fondling or touching.

1. In our view, given the nature of the disclosure and the absence of any contrary indication, it may reasonably be supposed that it was CA’s mother who found CA playing with her cousin and to whom CA revealed that her cousin had touched her inappropriately; or, even if that were not so, that CA’s mother derived the information from someone who did find the children playing and to whom CA revealed the inappropriate touching, and thus who had personal knowledge of the asserted facts. Either way, the representation is admissible under s 69(2).

Substantial miscarriage of justice

1. The Crown contended in the alternative that, if the disputed representations were admissible, the exclusion of the evidence of the representations was not productive of a substantial miscarriage of justice because the documents in question showed that the allegations that CA was displaying sexualized behaviour were investigated and that CA made no disclosures.  Thus, it was said, there was no evidential basis for Dr Gibbs’ opinions.

1. We reject that contention.  The representations in issue are evidence of the facts represented.  The assertion that the allegations of sexualized conduct were investigated and not shown to be true does not make the representations inadmissible as evidence of the facts so represented.  Arguably, the results of the investigation would go to the weight to be accorded to the representations.[14]  There would almost certainly have been cross-examination of the complainant as to these representations.  It is quite impossible to say what the result of that would have been.  One could not reasonably say the jury would have been bound to conclude that the fact and results of the investigation precluded the reasonable possibility of CA having displayed sexualized conduct in the period in question as represented.  The fact that CA had not acknowledged or admitted the allegations does not make them inadmissible.[15]

   [14]Subject to the rules against hearsay.

   [15]R v ERJ (2010) 200 A Crim R 270, 276, applying R v Sadler (2008) 20 VR 69, 77 [33]–[34].

1. The Crown contended further that, in any event, none of the evidence relating to CA’s sexualised conduct or of such of Dr Gibbs’ opinions as were based on it were admissible without leave under s 342 of the Criminal Procedure Act. It submits that the judge had been right to refuse leave under s 342 because Dr Gibbs had made it clear in his reports, particularly in his further report of 8 July 2012, that, absent acknowledgment by CA that there had been an event of sexual abuse, it could not be inferred from the fact of CA exhibiting sexualized behaviour that the abuse occurred.

1. We do not accept that contention either.  What Dr Gibbs said in his further report of 8 July 2012 was as follows:

If it is accepted that [CA] was exhibiting sexualized behaviour prior to the alleged offending that is the subject of this proceeding,

1.What is the likelihood of possibility that [CA] was the victim of, or exposed to sexual abuse or conduct prior to the alleged offending, and/or around the time of the alleged offending involving [the applicant]?

The likelihood of this would appear to be high — where I am referring your question as either ‘exposed to sexual abuse’ and/or ‘exposed to sexual conduct’ at or around the time of the offending.

It is not possible to determine the occurrence of sexual abuse solely from behavioural or psychological symptoms alone.  Behavioural indicators provide an indication of increased risk.  There is need for a verbal disclosure, physical evidence or witnesses.  Within the psychological literature, there are no behavioural or psychological symptom indicators that reliably diagnose whether someone has been sexually abused — and so I am not able to state if abuse did or did not occur based solely on such behavioural indicators or exposure.

However, it is possible to state there is a high risk of ‘exposure to sexual conduct’ which [CA] reported as having age inappropriate sexualized behaviours based on ‘known scientific literature about Social Learning Theory/Modelling’, as well as scientific literature that sexualized behaviour has been consistently regarded as the most useful indicator for sexual abuse (albeit that in itself it does not confirm the occurrence of such an event or exposure).

1. Dr Gibbs then set out extensive reasons as to why that was so, including that research has demonstrated that ‘the behavioural predictor that consistently emerges as most useful is inappropriate sexual behaviour’ and that ‘”based on this aspect of the research literature, and given that [CA] was manifesting such behaviour, it would be reasonable to conclude that [CA] had at least been ‘exposed to sexual conduct”’.  The effect of Dr Gibbs’ opinions was, therefore, that there was real possibility that CA had been exposed to sexual abuse or conduct at or around the time of the offending alleged against the applicant, which was productive of a mental disorder which may well have affected the reliability of her evidence that the applicant was the offender. 

1. In our view, that was a sufficient basis to render Dr Gibbs’ opinions admissible and so to require a grant of leave to cross-examine under s 342. As Callinan J said in Farrell v The Queen:[16]

An expert witness in a defence case is not confined to giving evidence of the relevant facts of a disorder or disability if the expert is of the opinion that such a disorder or disability actually exists.  If there is evidence entitling the expert to say that its existence is a real possibility then it is for the jury to assess that possibility.  Here of course, neither Dr Sale nor the appellant’s advisers had the means of compelling the complainant to submit to a psychiatric examination which would probably have enabled the doctor to express a more confident or certain opinion.  Of necessity, the witness’s evidence had to be based on the medical records of the complainant made available to him, although they were very extensive.

With respect to the trial judge … he should have permitted the psychiatrist to give the evidence which the appellant’s counsel sought to put before the jury of the possible existence of a disability or disorder as it bore upon the complainant’s capacity to give reliable evidence.[17] 

[16](1998) 194 CLR 286.

[17]Ibid 322–3 [94]–[95]; see also 292 [9] (Gaudron J); 299 [27] (Kirby J). See also Audsley v The Queen [2014] VSCA 321, [47] (Maxwell P, Weinberg and Priest JJA).

1. Finally, on this aspect of the matter, the Crown contended that the fact that CA and her family may have visited and stayed at F’s home was not, without more, a sufficient basis from which to infer that she had been sexually abused by F.  Thus, it was contended, for the judge to have permitted questioning to that effect would have been an invitation to the jury to speculate.

1. In our view, that contention is also misplaced.  It was not the task of the defence to establish to any given standard of proof that CA had been sexually abused or that as a consequence that she was affected by a form of mental disability which resulted in her wrongly attributing F’s acts to the applicant.  It would have been enough for the applicant to avoid conviction for the jury to have been unable to exclude as a reasonable possibility that that is what occurred.  Consequently, while the disputed evidence may not have gone as far as establishing even on the balance of probabilities that F had sexually abused the complainant, the applicant was nonetheless entitled to adduce the evidence to establish that it was a reasonable possibility.  Putting together the facts of CA’s visits to F’s home, the reported instances of her demonstrations of sexualized behaviour at or around the relevant time and Dr Gibbs’ opinions as to the significance of CA’s symptomology, the jury could well have been left with the view that it was reasonably possible the complainant falsely attributed the conduct of F to the applicant.

The representations on which Dr Gibb based his opinion in relation to CB

1. In Dr Gibbs’ first report of 3 July 2012 he stated in relation to CB that:

1.0 Complainant – CB: Borderline Personality Disorder is relevant

...

Complainant CB has been diagnosed with a Borderline Personality Disorder by a Psychiatrist.  Borderline Personality Disorder is characterised by:

·Fears of abandonment – where it is considered that there are issues of disordered attachment (ie. parental).  This can be induced by seemingly minor separations from caregivers.

·Chaotic relationships and intense emotions.

·‘Splitting’ – where the individual might state one thing to one person and completely the opposite to another – thereby making their statements of potentially questionable validity.

·‘Acting out’ – where the behaviour can be outwardly destructive to others;  (eg; bullying;  blackmail;  accusations/conflict;  impulsive and reckless acts;  sexual & drug use).

·Self-harm/suicidal behaviours related to expression of pain, self-regulation of emotion or punishment.

·Is considered with caution in very young persons undergoing adolescence though can be diagnosed under 18 if there is a consistent pattern.

As such, there is concern in relation to complainant CB given the diagnosis of Borderline Personality Disorder, where the reliability and validity of their statements can be impacted by this pathology.

…

2.0 Complainant CB’s Mother:  Reference to Multiple personality appears relevant

Complainant CB’s mother refers to ‘Multiple Personality’ — where this is relevant — as this disorder is associated with the phenomenon of ‘repressed memory.’  [That] is, persons have hidden memories of which they are not previously aware, where these ‘surface’ many years later, and in this instance each personality is held to have a ‘dissociated’ or repressed memory of trauma.  This is an highly[sic] controversial phenomenon, is without scientific support with respect to the nature of memory, and where there are risks with respect to the reliability and validity of claims made with respect to memory.

The concern here is that her daughters chaotic behaviour comes to be explained by such factors. 

Crown’s contentions 

1. The Crown contends that, since defence counsel was not shut out from relying on CB’s behaviour, including self-harm, a possible suicide attempt, running away, impulsivity, emotional instability, and skipping school;  from making the point that CB was very psychologically unsettled;  or from putting to CB that she had made a new friend who was going through the court process, there was no need to rely on Dr Gibbs’ reports to establish those facts and hence that the only issue for present purposes was the admissibility of Dr Gibbs’ opinions as to the effects on CB’s reliability of Borderline Personality Disorder and ‘Multiple Personality’.

First disputed representation

1. The first disputed representation is Dr Gibbs’ statement that:

Complainant CB has been diagnosed with a Borderline Personality Disorder by a Psychiatrist. 

The applicant relies on documents 55, 39, 40 and 59 in order to establish that fact. 

1. In the Crown’s submission, none of those documents is admissible evidence of the fact that a Psychiatrist had diagnosed CB as suffering from Borderline Personality Disorder.

1. We disagree.  Document 55 is a Goulburn Valley Health Progress/ Continuation record for CB pertaining to her presentation on 20 May 2010 after consuming 100 millilitres of ‘grape wine’ and superficially cutting her forearm with a broken beer bottle 25 times.  It includes a note:

Insight: Aware of Borderline Personality Disorders as handed down by psychiatrist & role of treatment.

And later in the document:

Emotional dysregulation & treatment strategies for same discussed.  Disadvantages of substance misuse & overdose reiterated

ASSESSMENT

Borderline Personality Disorder as handed down by Consultant Psychiatrist.

1. The Crown conceded that it may reasonably be inferred the author of the document was informed of the diagnosis directly or indirectly by the consultant psychiatrist who made the diagnosis.

1. Document 39 is a Case Details Report dated 21 October 2010 of the Goulburn Valley Family Services.  It contains the entry:

22/10/2010 Fri 10:01 AM – Clare Rich

Kids removed by CPU May 2010, [CB] has been into CAMHS [scil. Child and Adult Mental Health Service] in Melbourne on 2 separate occasions, she has been diagnosed with Borderline Personality Disorder and has been placed on medication but is not compliant because when she is not at home, she does not have her medications.  [CB’s mother] is feeling drained from [CB’s] behaviour.

The Crown contends that the entry does not amount to a representation that the diagnosis was made by a psychiatrist, and thus is inadmissible.

1. In our view, it is readily apparent that the diagnosis referred to in document 39 is the same diagnosis as is referred to in document 55 and hence it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB’s mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis.

1. Document 40 is a Goulburn Valley Family Services Case Details Report dated 14 December 2010 that:

CB has been diagnosed with Borderline personality disorder by Box Hill CAMHS.

The Crown contends that the entry is not a representation made by a psychiatrist.

1. In our view, it is readily apparent that the diagnosis referred to in document 40 is the same diagnosis as is mentioned in Document 55, and thus that the entry in document 40 is a representation that the diagnosis was made by the Box Hill CAMHS consultant psychiatrist.  For the same reason, it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB’s mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis.

Second disputed representation

1. The second disputed representation is Dr Gibbs’ statement in his report dated 3 July 2012, that:

Complainant CB’s mother refers to ‘Multiple Personality[18] — where this is relevant — as this disorder is associated with the phenomenon of ‘repressed memory’.

[18]Eastern Health Progress Notes dated 4 April 2010.

1. The applicant relies on Document 61 as establishing that CB was suffering from ‘Multiple Personality’.  Document 61 is comprised of Eastern Health Progress Notes for 4 April 2010 and relevantly included the following entry:

[CB’s mother’ feels she [CB] has a kind of ‘multiple personality disorder’ — described difficulty controlling emotions, anxiety and panic attacks, takes XANAX or Valium prescribed by GP.

1. The Crown contends that, because CB’s mother is not an expert in psychiatric disorders, she was not qualified to express an opinion as to whether CB was suffering from multiple personality disorder and therefore that the representation of her opinion comprised of the disputed entry is not admissible under s 69(2) of the Evidence Act.

1. We agree. A representation of opinion is not admissible under s 69(2) unless it complies with the requirements for admission of opinion evidence prescribed by ss 76 to 79.[19]  A lay opinion as to whether CB was suffering from ‘Multiple Personality’ would not be admissible under any of ss 76, 77 or 79.

   [19]Lithgow City Council v Jackson (2011) 244 CLR 352, 362–3 [18]–[19] (French CJ, Heydon and Bell JJ); 382 [77] (Gummow J).

1. The opinion might be admissible under s 78 if it were properly to be regarded as based on what CB’s mother saw, heard or otherwise perceived of CB’s mental state and evidence of her opinion were necessary to obtain an adequate account of her perception of CB’s mental state; in other words, in this context, if it were necessary to obtain an adequate account of what CB’s mother saw heard or otherwise perceived of CB’s symptomology. As it stands, however, it does not appear to us that Dr Gibbs treats the opinion in that fashion. As we read his report, he adopts CB’s mother’s description of CB’s suffering from multiple personality as if it were a competent clinical diagnosis of multiple personality disorder; and, on that basis, he then goes on in the report to expatiate on the forensic significance of the possibility that CB was suffering from that disorder. If that is so, the representation of opinion would not be admissible under s 69(2).

1. If, however, it were established in a voir dire that Dr Gibbs’ report is properly to be understood as treating CB’s mother’s opinion as no more than a short hand descriptor of particular observed symptoms; and, in Dr Gibbs’ view, the existence of those symptoms bespeaks the reasonable possibility of Multiple Personality Disorder properly so called, the representation may be admissible under s 69(2) by reason of s 77.

Substantial miscarriage of justice

1. The Crown further contended that, even if any of the representations as to CB suffering from Borderline Personality Disorder were admissible, there had been no substantial miscarriage of justice by reason of their exclusion.  Counsel for the Crown submitted that, in the absence of evidence from the psychiatrist who had formed the diagnosis — and it was apparent at the time of trial that he or she could not be located — Dr Gibbs’ opinions as to the effect of that disorder on CB’s credibility and reliability would have had very little relevance or probative force.

1. We disagree.  To adopt and adapt the language of Kirby J in rejecting a similar submission in Farrell v The Queen:

Although this was a strong circumstantial case for the Crown … the prosecution case depended substantially, from first to last, on the complainant.  The exclusion of expert evidence … relevant to the jury’s approach to the complainant’s testimony, was therefore very important.  The jury may have reached their conclusion without feeling any need to rely on psychiatric testimony.  But for all that this Court knows, they may … have had doubts about the complainant’s veracity but put those doubts to one side where they would not have done so had the expert evidence of established psychiatric conditions been allowed in full and its use properly explained to them.  It cannot be said that the appellant’s conviction was inevitable had the evidence been properly admitted and explained.[20] 

[20]Ibid 301 [32] (Kirby J); see also 294 [15] (Gaudron J); 326 [101] (Callinan J) (citations omitted).

1. Notwithstanding Dr Gibbs could only depose to the possibility that CB may have suffered from Borderline Personality Disorder, and therefore it was possible that it had detrimental effects upon the reliability of CB’s testimony, it is not possible to say that, if the jury had had the benefit of Dr Gibbs’ opinions as to CB’s mental condition, the possible effects of it on the reliability of her testimony, and proper directions as to how they might and might not use that evidence, the jury would nonetheless have been bound to convict.[21]

   [21]Baini v The Queen (2012) 246 CLR 469, 481–2 [33]; Baini v The Queen (2013) 232 A Crim R 17, 19–21 [8]–[10].

CA:  Ground 5 — Cross-examination as to complainant’s sexual history

‘The learned judge erred in failing to allow cross-examination of CA pursuant to s 342 of the Criminal Procedure Act 2009 in relation to her prior sexual history where:

(a)she displayed sexualised behaviour prior to the crimes alleged against the applicant;60

(b)she lived with [F] for three days a week from the ages of 6 to 7 and a half, a person who had a prior criminal history for abusing his 8 year old stepdaughter both before and at the same time of the alleged crime;

(c)Dr. Gibbs had opined of the likelihood of misattribution or confusion by CA.’

1. It was contended under ground 5 that the judge erred in refusing to allow cross-examination of CA pursuant to s 342 of the Criminal Procedure Act in relation to her sexual history.  As we have already said at [51] and [52], we agree with that contention.

1. The application to cross-examine CA’s sexual history was based on entries in the documents sought to be admitted as business records that CA had exhibited sexualized behaviour constituted of fondling a young man’s penis in 1998;  and, in 1999 pulling down her pants, saying to another child ‘let’s have sex with our fannys’ and then lying on the other child and demonstrating the notion of having sex;  and notifications concerning her grandfather in 1998 and contemporaneous co-habitation with F.

1. As has been seen, Dr Gibbs considered that such sexualized behaviour was a behavioural predictor from which it might reasonably be inferred that CA had at least been ‘exposed to sexual conduct’ productive of a mental disorder which may well have affected the reliability of her evidence that the applicant was the offender.

1. In those circumstances, we think that cross-examination should have been permitted in accordance with s 349 because it was directly relevant to the reliability of the complainant’s testimony that it was the applicant who had assaulted her.[22]  Potentially, the probative value of her evidence was high. 

   [22]Bromley v The Queen (1986) 161 CLR 315, 322; R v Sadler (2008) 20 VR 69, 77 [29]–[30].

1. Possibly, to allow the cross-examination might have been productive of distress, humiliation or embarrassment to the complainant.  But, in our view, the probative value of the evidence was such as plainly to outweigh those considerations.  This evidence was not sought to be adduced as a means of damaging the complainant’s credibility.  As defence counsel was several times at pains to point out to the judge, it was not suggested that the complainant was doing less than her honest best to tell the truth as she knew it.  The evidence, if admitted, would have gone to CA’s reliability in that it would have shown that she had suffered from a condition which affected her ability properly to recall what had occurred.  Given that the cross-examination was to be directed to events for which CA could in no way be regarded as responsible, we think that risk of the cross-examination arousing discriminatory belief, bias, prejudice, sympathy or hostility in the jury was slight.  Given what was at stake, the need to respect CA’s personal dignity and privacy had to yield to the applicant’s right fully to answer and defend the charges which she made against him.

CA:  Ground 6 — Cross-examination concerning exposure to F

The learned trial judge erred in:

(a)failing to allow cross-examination of CA or her mother regarding CA’s exposure to [F] as a basis for misattribution;

(b)denying the applicant procedural fairness by excluding evidence notwithstanding that there was no application to exclude under section 135 of the Evidence Act, and no opportunity for submission from the applicant, and in so doing;

(c)causing a miscarriage of justice by enabling the prosecution to present its case where CA’s self-mutilation and bizarre behaviour could be causatively linked to the crimes as alleged, and excluding other explanations.

1. For much the same reasons, we consider that the judge was in error in excluding cross-examination to show that F was a convicted paedophile and that CA’s mother had allowed CA to stay at F’s home in the period at and around the time of the offences alleged to have been committed by the applicant.  The essence of the applicant’s defence was that, because of the applicant’s mental condition, she had wrongly attributed to the applicant, offences which had been perpetrated by someone else and most probably by F.  The fact that F was a convicted paedophile and that CA had lived under the same roof as F at or about the time of the alleged offences were self-evidently facts relevant to the likelihood that F committed the offending for which the complainant wrongly blamed the applicant.  Hence, to deprive the applicant of the opportunity of cross-examining CA on that possibility, and otherwise to prevent the applicant demonstrating that F was a convicted paedophile in whose house CA had stayed at the relevant time, was essentially to deny the applicant of the ability to present a major part of his defence.  It was a substantial miscarriage of justice.

CA:  Ground 7 — Unreliable witness warning

1. Under ground 7, counsel for the applicant contended that the judge erred in failing to give an unreliable witness warning in relation to CA under s 165(1)(c) of the Evidence Act based on her refusal to admit facts which were recorded in the subpoenaed documents, and upon her admission that, at the time of reporting the alleged offences, she may have believed that she had the ability to levitate and that, until she began taking medication, she was hearing voices which told her ‘to end it all’.

1. The Crown’s response was that, since the apparent unreliability was all based on the subpoenaed documents which the judge had refused to admit into evidence, there was no basis for contending that CA was unreliable and, therefore, no basis to warn the jury of that possibility.

1. It is sufficient to say of this point that, for the reasons already expressed, we consider that the judge should have admitted those aspects of the subpoenaed documents to which we have referred;  had his Honour done so, there would have been a sound basis to suppose that CA was an unreliable witness;  and such a warning would then have been necessary. 

CA:  Ground 8 — Admission of tendency evidence, failure to give propensity direction

1. This ground of appeal encompasses two complaints:  first, that the trial judge erred in admitting the evidence of the applicant giving the complainant the gift of the gee-strings sometime after the alleged crimes as tendency evidence;  and secondly, that there was a failure to give a propensity direction in relation to that evidence.

Should the evidence have been excluded?

1. The applicant submits that the evidence relating to the gee-strings did not possess sufficient probative value to be admitted.  Counsel for the applicant submitted that the evidence lacked cogency[23] and, even if accepted, did not necessarily carry with it an implication of sexual interest in the complainant on the part of the applicant.  He pointed to the lack of solid evidence as to how long after the offending the gift was allegedly given, and argued that in the absence of such evidence it cannot be concluded that the evidence was of sufficient cogency to allow it to be admitted as tendency evidence.  In substance it was contended that the evidence of the criminal acts was so far removed in point of time from the giving of the presents that it was inappropriate to have admitted the evidence.

   [23]Citing Semaan v The Queen [2013] VSCA 134, [35]–[40].

1. At trial, the objection to the admission of the evidence was based upon the alleged inconsistencies between the complainant’s and her mother’s accounts of the giving of the gee-strings, particularly in relation to what was allegedly said by the applicant at the time, doubt as to what the present was and how many items there were;  whether it was a one-off incident that caused ‘unfair prejudice’;  that the gift was given in the presence of the mother, that it was unlikely that the complainant would have kept them if they caused her anxiety;  that the giving of the gift post-dated the offence;  and that the evidence was not probative.  Only the last of these matters was the subject of specific argument on appeal.

1. It has long been settled that acts revealing a prior sexual interest by an accused in a child, whether or not it gave rise to the commission of an offence, may be admitted as evidence in proof of charged sexual offences against that child.  The ‘guilty passion’ of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge.  In other words, it makes it more likely that the offence charged was in fact committed.[24]  

   [24]Martin v Osborne(1936) 55 CLR 367, 376 (Dixon J); Harriman v The Queen(1989) 167 CLR 590, 631 (McHugh J); B v The Queen (1992) 175 CLR 599, 602, 609, 610–1, 618; R v Beserick (1993) 30 NSWLR 510; R v Vonarx [1999] 3 VR 618.

1. The trial judge was, therefore, correct to allow the evidence of the applicant giving the complainant the gift of the gee-strings to be led as tendency evidence.  Giving a child a sexually provocative garment, accompanied by a request that she try it on and wear it in his presence, was evidence which was powerfully suggestive of a sexual interest in that child on the part of the applicant.  The point is elucidated in the following passage from Gentry (a Pseudonym) v The Queen:[25]

   [25][2014] VSCA 211.

In the case of a single complainant, it is convenient to refer to the reasoning in JLS v The Queen concerning multiple events of sexual misconduct whether charged or uncharged.  There, the only source of evidence was the single complainant herself.  The appellant had contended that, because the evidence of the uncharged acts came solely from the complainant, the evidence did not have significant probative value and was not admissible as tendency evidence.  The Court rejected that contention, stating:

Evidence by a complainant of uncharged sexual acts by the accused which are not remote in time from the act or acts charged and which are of the same nature as those charged will ordinarily permit probability reasoning that the offence or offences charged are more likely to have occurred.  The cogency of evidence that the accused has previously committed sexual acts of a similar nature to the act charged with the same victim and for the same reason, needs no elucidation.

The appellant in JLS had also contended that the uncharged acts (hugs in a sexual manner and digital penetration) were not the kind particularised (such as rubbing, licking and penetrating the vagina) and could not therefore be acts capable of proving tendency.  The Court said:

Tendency evidence given by the complainant may have very considerable probative value even though it is not identical with the acts constituting the offence ... Here the evidence of different sexual acts to those particularised on the five occasions had the capacity to show the applicant to have an ongoing sexual interest in the complainant.  Such evidence also potentially demonstrated the particular modus operandi by which the applicant gave effect to his ongoing sexual interest.

The applicant sought to distinguish JLS before the trial judge on the basis that the risk of unfair prejudice was not regarded as great in that case because the complainant was the sole source of the tendency evidence.  Here, in contrast, it was argued that the probative value of the seminal staining on the underwear is likely to be overestimated and so cause the jury too readily to accept other prosecution evidence and distract the jury from the issues at trial.

MR v The Queen also dealt with multiple charges involving a single complainant and different conduct.  The prosecution in that case sought to lead evidence that photographs and a video that the accused had taken of his young daughter were admissible as tendency evidence on a further charge of indecent act with a child, with the tendency sought to be led as a sexual interest by the accused in his young daughter.  The Court held that the evidence was so admissible with the photographs and the video ‘capable of demonstrating that the accused had a sexual interest in his daughter and was prepared to act upon that interest’.  Although the acts in question differed, the Court found that there was a ‘commonality of acts manifesting and pursuing an unnatural interest in [the accused’s] daughter’.

The common law has long recognised so-called ‘guilty passion’ evidence — now to be referred to as evidence demonstrating a ‘sexual interest’ — consisting of evidence that an accused has acted in a sexual way towards the complainant on one or more occasions as a type of tendency evidence.  Such evidence may be admitted to prove that the accused had an improper sexual interest in the complainant and a willingness to express that interest.  As was recognised in Velkoski, ‘where all the tendency and charged acts relate to the same victim’, the relationship between an offender and a victim may itself support tendency reasoning.

In cases involving a single complainant, generalised evidence of an accused’s sexual interest in and sexual misbehaviour towards the complainant may have a highly probative value, and may legitimately contribute to an assessment of the probability of the charged acts having occurred.  Such evidence is demonstrative of a specific tendency of the applicant to show a sexual interest in and commit sexual offending against a particular victim.  The vice identified in Velkoski, in contrast, was the prosecution’s reliance upon an offender’s state of mind to cover the offender’s general sexual interest or predilection in relation to a class of persons.[26]

[26]Ibid [24]–[29] (citations omitted).

1. As to the issue of the temporal proximity of the gift to the offending, raised for the first time on this appeal, the complainant, CA, gave evidence at trial that, although she was not sure of the date that she had been given the gee-strings, it was not too long after the commission of the offences.  At the committal hearing, CA had stated more specifically that the incident with the gee-strings had occurred ‘five or six months’ after the sexual assaults, but that she was ‘not exactly sure about the time’.  In cross-examination, CA confirmed her evidence that it occurred within five to six months after the commission of the offences.

1. On appeal, counsel for the applicant, when pressed, conceded that if the period of time between the sexual offences and the giving of the gee-strings was no more than five or six months, the arguments based upon the lack of temporal proximity between the two events and resultant lack of probative weight would fall away.  That concession was properly made.  The evidence being to the effect that no more than five or six months had elapsed before the gee-strings were given to the complainant, there was sufficient temporal proximity between the events to warrant the admission of the evidence as tendency evidence. 

1. Finally, before leaving this part of this ground, we note that Dupas v The Queen[27] had not been decided at the time of the trial.  It has not been shown, however, that any matters raised by defence counsel at trial required the judge to exclude the impugned evidence on the grounds of reliability or otherwise.

   [27](2012) 218 A Crim R 507, 524 [63].

Was there a need for an anti- propensity warning?

1. The applicant argues further that the judge ought to have given an anti-propensity warning.  Such a direction in the case of sexual charges is usually to the effect that the jury should not reason that because the offender may have committed other sexual offences than that charged, he is the kind of person who was likely to have done so on the occasions charged.[28]

   [28]R v Grech [1997] 2 VR 609 (‘Grech’).

1. It is well settled that such an anti-propensity warning should be given in circumstances where there are multiple complainants and should be given whether or not their evidence is cross-admissible.  It is also settled that where evidence of prior sexual conduct is to be used as context evidence and not to be used as guilty passion evidence or for tendency as now described under the Evidence Act, the trial judge is ordinarily duty bound to give an anti-propensity direction. 

1. It has been settled for some time, too, that, where there is only one complainant and a number of charges and the prosecution seeks to rely upon other criminal conduct of a sexual nature involving the same complainant, the anti-propensity warning should also be given.  Reference to the enunciation of this principle in two of the leading authorities will suffice.  This Court said of uncharged conduct involving the same complainant in R v Vonarx:[29]

[T]he jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting.  They should be told not to reason that the accused is the kind of person likely to commit the offence charged.[30]

[29][1999] 3 VR 618.

[30] Ibid [22] (emphasis added).

1. Similarly in R v DCC,[31] Callaway JA said that a propensity warning should ordinarily be given where evidence of uncharged acts is admitted as relationship evidence.  His Honour referred to the three components of the necessary direction, set out in his judgment in Grech,[32] in which Phillips CJ and Smith AJA concurred:

   [31] (2004) 11 VR 129.

   [32][1997] 2 VR 609.

In my opinion the jury should have been told that —

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred;  and

1. That said, however, the terms in which the judge expressed the objection and the opportunity which his Honour expressly afforded defence counsel to take up the matter again after she had considered it, are opposed to his Honour having shut his mind to the possibility of allowing defence counsel to put further questions on the matter when and if she were disposed to do so.  In the events which occurred, defence counsel did not come back to the issue before the jury were discharged.

1. In those circumstances, we do not accept that a fair-minded lay observer might reasonably have apprehended from the way in which the judge dealt with the cross-examination concerning medication that his Honour might not bring an impartial and unprejudiced mind to its resolution had the need arose.

(iv)      Refusal to allow cross-examination as to CA’s involvement with DHS

1. By way of introduction to cross-examination of CA on the subpoenaed DHS records on matters relating to her mental state at relevant times, defence counsel put the following question to CA and received the following answer:

COUNSEL:  [CA], the Department of Human Services have been quite involved with your Mum and you[r] family, haven’t they? --- I guess so.

1. Thereupon, the judge interjected as follows:

HIS HONOUR:  Just bear with us for a moment, Ms – where is this going…

At this stage the jury left the court.

COUNSEL:  Your Honour, in relation to the relevance of this evidence, [CA] has had a troubled background, she has trouble with her father, she has had — her mother has lived with [F], for example.  She’s had a lot of problems.  The Department of Human Services have been involved with [CA] and her family.  Now - - -

HIS HONOUR:  What’s it got to do with this case?

…

COUNSEL:  The relevance, your Honour, is this, that is that the — if the jury might — if the jury have an understanding of where [CA] has come from, the context of her life, the fact that it has been a very troubled life.

HIS HONOUR:  Yes.

COUNSEL:  They might think that, or be of the opinion that the reason that she is behaving the way she is behaving, cutting and the rest of it is because of her background not because of [what] the accused has done to her.  Because right now they don’t know anything really about her background.  I’m not going to go into a huge amount of detail, but I do want to be able to put to her that the department has been involved.

HIS HONOUR:  But it leaves it so vague.  The department has been involved is a pejorative concept it seem[s] that might make aspects of her life — the wrong slant on it.  That is, may be a sense that the Department of Human Services had become involved in wayward children’s lives and uncontrollable children’s lives and that’s a concept that would not be based on any evidence and would be a prejudice that would be unfair to her.  So to just simply say the Department of Human Services have been involved in your life just allows things to be too speculative.

What is the point you’re driving at?  Are you just saying to her, ‘Look, you said that you were cutting and all those sorts of things, that’s as a consequence of all the difficulties that you’ve had in your life with your Mum and different partners and the fact you don’t get on with your stepfather and the fact you don’t get on with your mother’?  Why don’t you say that to her, what’s wrong with that?  Then you get to the point where, I think you’re driving at fairly - - -

COUNSEL:  Just she’s had a troubled life.

HIS HONOUR:  That’s not her fault.  That’s essentially — it’s not her fault.

COUNSEL:  No, it isn’t her fault.

HIS HONOUR:  Well that’s why I think there is a risk that — just suggesting the Department of Human Services has been involved in your life lays it potentially open for a prejudicial view of her to come out that it’s because she’s wayward.

COUNSEL:  Well your Honour — I’m not in a position to say whether she’s wayward or not wayward, but it would certainly appear from the Department of Human Services’ material that she has had serious problems.  She has been drinking, she has been cutting, there has been a lot of things that have been happening to her.

HIS HONOUR:  You’re entitled to ask her those things if you think it substantially affects her credit, that is that if she’s cutting you want to neutralise that it might be because of the effect of the crime upon her, that’s legitimate.  It’s a rebuttal proposition from re-examination you’re anticipating and rightly so, but it can’t be done as such a generalised thing.  When you’ve got the material, just put it to her.

COUNSEL:  I was just going to — sorry, your Honour.  I was just going to introduce it.  That’s the way I was going to introduce it, but I can go about it another way, it’s fine.

HIS HONOUR:  I often think that the introductory questions are the ones that get us into difficulty in having a debate about something that we don’t need to, because if you’d said to her ‘None of this cutting business has got anything to do with Mr Lancaster, it’s all to do with other things?’ she’d be able to tackle it.  It’s legitimate.  I don’t say you have to put it in that way, but I’m not allowing a generalised proposition about the Department of Human Services.

COUNSEL:  No, all right.  I’ll cut straight to - -

HIS HONOUR:  Yes, get to — the point is something should be on the page of every cross-examiner perhaps, but anyway we’ll bring the jury in.  Are you ready to go?

COUNSEL:  Yes.

1. In our view, the judge’s interjection was unwarranted.  There was nothing improper or unfair about counsel asking an introductory question as to whether CA had been involved with the DHS.  It was a natural and effective introduction to the matters about to be covered.

1. Contrary moreover to the judge’s view, defence counsel was not required to frame her questions in a manner which accorded to the judge’s perception of what would do least damage to the credit and reliability of CA’s testimony.  On the contrary, counsel was entitled, if not bound, to attempt fully to explore these issues.  It was not unfair for counsel to attempt to demonstrate that the extent of CA’s delinquency and mental disorder was of sufficient a scale as to attract the sustained attention and intervention of the DHS (as appears from the subpoenaed document to have been the case).  Indeed, for counsel not to adduce evidence of the fact and extent of the DHS’ involvement would have left the jury substantially under-informed of something which was critically directed to the centrepiece of the defence case.  Within the confines of fairness, counsel was entitled to pursue these matters without feeling the need to apologise to the judge.  She should have been permitted to continue with her cross-examination as to the nature and extent of CA’s involvement with the DHS as she sought to do.  The judge’s intervention was an error.

1. So to err, however, is not the same thing as manifesting an intention not bring an impartial and unprejudiced mind to its resolution had the need arose.  All judges make errors and, given the nature and complexity of the task, they are never more likely to do so than in the course of a criminal trial.  But, ordinarily when such errors are made, they are made in the course of what objectively should appear to a reasonable informed bystander to be the judge doing his or her best to act fairly and impartially.  Here, that appears to us to have been the case.

(v)     Suggesting evidence to prove a charge

1. The point about evidence to prove a charge arose in the course of a discussion between the judge, the prosecutor and defence counsel as to an agreement between counsel that numbered extracts from the subpoenaed documents could go to the jury and, as the judge put it, that the jury should accept that CA had seen ‘these people on these times and these are the notes from the files’.

1. There was then the following exchange between the judge and counsel:

HIS HONOUR:  That might get us some of the way to having, if we need documentation before the jury, if she [CA] doesn’t agree with it.  But it has another aspect to it, one of them does in particular, because you [defence counsel] put it to her [CA] that she said something to someone about digital rape.

DEFENCE COUNSEL:  M’mm.

HIS HONOUR:  To that point we had no evidence of a digital penetration, we now do [although] she [CA] didn’t necessarily adopt it.

DEFENCE COUNSEL:  No, she didn’t.

HIS HONOUR:  But if you say that it is — the document says it and it’s a representation of her, then it’s a representation potentially for — well it is for all purposes obviously, not just for the fact that she made it but for its truth, does that give rise to Count 4, which is probably not there [scil. established by evidence] at this point.

DEFENCE COUNSEL:  Yes.  Your Honour [she did] not admit that document.

HIS HONUR:  Well you’ve read it to her and she - - -

DEFENCE COUNSEL:  Yes.

HIS HONOUR:  Anyway, think about all that, think about - - -

DEFENCE COUNSEL:  She didn’t agree with it anyway.

HIS HONOUR:  She didn’t, so should it be capable of admission in that way.  I mean I don’t want to complicate Count 4 in any way more, [the prosecutor] didn’t follow it up, he hasn’t made application pursuant to s 38 or 32, or any other provision that allows people to give evidence

PROSECUTOR:  I’m not going to do that.

…

HIS HONOUR:  It’s a matter for you - - -

PROSECUTOR:  No, it would be counter-productive in this case.

HIS HONOUR:  It might be.  It might be counter-productive, it might be, but I would have thought — anyway, I won’t say what I think, you make the decisions, not me.

PROSECUTOR:  Yes, I have made that decision, your Honour.

HIS HONOUR:  Thank you.  Two o’clock.

1. We see nothing in that which is suggestive of apparent bias.  Defence counsel might have wished that, if the document went into evidence, it not be treated as some evidence of digital penetration.  But she could hardly complain that the judge warned her of the possibility that it could be so treated.  In turn, the prosecutor may have been irritated to be told that he could have sought to have CA treated as an unfavourable witness and thus to cross-examine her into admitting that she had alleged digital rape.  But he in turn could hardly complain that the judge considered it appropriate to remark upon the possibility. 

1. Possibly, the judge’s intervention and observation were undesirable.  They appear to have been the result of unnecessary verbalisation of what would better have remained unspoken judicial cerebrations: ’where the accused is represented by counsel, the judge’s interventions in the process of the case are normally minimal.’ [43]  

   [43]Doggett v The Queen (2001) 208 CLR 343, 346 [1] (Gleeson CJ).

1. Where a trial judge’s intervention is not minimal but excessive and have disrupted the presentation of the defence case, the danger arises that it will be alleged that the judge has an ostensible bias against the defence.  That complaint is made here.

1. But we do not think that a fair-minded lay observer might reasonably have apprehended from what occurred that the judge was prejudiced in favour of one side or the other.

(vi)Prohibiting cross-examination of CA as to her involvement with F

1. We dealt under ground 6 with the judge’s refusal to permit cross-examination concerning CA’s involvement with F.  For the reasons earlier given, we consider that evidence regarding CA’s mother’s involvement with, and CA’s consequent exposure to F, was admissible and of fundamental importance to the defence;  and accordingly that cross-examination on those issues should have been allowed.  In our view, therefore, the judge was in error in excluding evidence on the point and in discharging the first jury trial when defence counsel attempted to cross-examine CA about it.  The extent of the error is demonstrated in the following passage of the transcript by the judge’s berating of defence counsel for suggesting to CA that F, with whom CA agreed her mother was associating at the relevant time, was a convicted paedophile:

HIS HONOUR:  It’s not relevant.  Whether [F] has prior convictions for sexual assaults is not relevant.  If it is, then the only aspect that it has is to create an unfair prejudice to the Crown of the kind the jury would speculate that it may well be that [CA] has transferred all to [the applicant] conduct that was really [F’s].  That’s the problem.

…

HIS HONOUR:  … it became illegitimate when the cross-examination put to [CA] that [F] was in her life.  [F] had a good deal of time with her and her mother and that [F] was a person of poor repute in the sense that he had prior convictions for interfering with his eight year old, I think it was, daughter.

The effect of that was to cause distress to the witness to a degree, stoic as she has been…

In my view, the evidence is not relevant, its only place is to create prejudice and to have the effect of raising speculative theories that there might have been transference of the offending onto [the applicant] when really there was another paedophile in the background.

1. Contrary to the judge’s perception, the evidence that F was a convicted paedophile with whom CA’s mother was associating at the relevant time, and thus to whom CA was exposed at the relevant time, coupled with the evidence of CA’s mental state, was fundamental to the defence.  Accordingly, defence counsel had every right to suggest to the jury there was a reasonable possibility that CA had wrongly attributed to the applicant, offences committed by F.  Hence, for the judge to deny the defence that opportunity was a substantial miscarriage of justice.

1. But we are not persuaded that the judge’s treatment of the matter was indicative of apparent bias.  It is just that his Honour misconceived it’s potential relevance while appearing to do his best to be even-handed. 

(vii)     The judge describing CA as ‘stoic’

1. The judge’s reference to CA’s stoicism adds nothing to what has already been said about the judge’s decision to discharge the jury after defence counsel attempted to cross-examine CA concerning F.

(viii) Suggesting that evidence of the applicant visiting CA and hugging her, and of CA pulling away, should be led as context evidence

1. Finally, on this aspect of the matter, it does not appear to us that there is anything in the point that the judge characterised evidence of CA pulling away from the applicant when the applicant attempted to hug her, as context evidence.  In that respect, the judge was correct.  It was contextual circumstantial evidence and it was relevant and admissible as such.

CB:  Ground 4 — Ostensible bias

1. In the case of CB, the contention of apparent bias was put on the basis that, because the judge had already decided in the case of CA that the DHS and other social and healthcare records relating to CA were not business records and, therefore, because Dr Gibbs’ opinions as to CA’s mental state (being based on the fact recorded in those records) were inadmissible, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension in the case of CB that the judge might not bring an impartial and unprejudiced mind to the question of whether similar social welfare and health care agency records relating to CB were business records and thus whether Dr Gibbs’ opinion concerning CB’s mental state (being based on the facts stated in those records) would be admissible. 

1. Further, apart from the admissibility of the records as business records, the judge had held in the case of CA that Dr Gibbs’ opinion as to CA’s mental state was not admissible as opinion evidence, and had emphatically dismissed Dr Gibbs’ opinions in terms that the idea of adducing evidence of the opinion ‘just did not make sense’.  Thus, it was contended that a fair-minded lay observer with knowledge of the facts might entertain a reasonable apprehension that the judge might not bring an impartial mind to the question of the relevance of Dr Gibbs’ opinion in CB’s case. 

1. Counsel for the applicant relied in particular on the decision of this Court in Rozenes v His Honour Judge Kelly,[44] in which it was held that, where a judge had excluded the evidence of a proposed prosecution witness based on the judge’s consideration of what he had seen and heard in an earlier trial relating to other related offences, and on the basis of committal depositions, and made strongly expressed findings concerning the proposed witness which were inimical to the prosecution case, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matters before him.

   [44][1996] 1 VR 320 (Tadgell and Callaway JJA and Crockett AJA) (‘Rozenes’).

1. We do not consider that the same could be said in this case.  The decision in Rozenes turned on adverse views of the proposed witness’s credibility which the judge in that case had formed on the basis of the previous trial and depositions.  The decision was also based in part upon the remarkably intemperate manner in which the judge expressed those views.[45]  The Court in Rozenes expressly stated that it was not to be taken as deciding that no judge could hear two trials arising out of the same transactions or otherwise involving similar issues.  As Mason J said in Re JRL;  Ex parte CJL,[46] the ground of disqualification for apprehended bias is that the judge will not decide the case impartially or without prejudice, but rather than that he will decide the case adversely to one party: 

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.[47]

[45]Ibid 332.

[46](1986) 161 CLR 342.

[47]Ibid 352.

1. In Rozenes, this Court also referred with qualified approval the decision of the New South Wales Court of Criminal Appeal in R v Masters[48] in which it was said that:

The effect [of Mason J’s pronouncement in JRL] was clear.  The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias.  The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.[49]

[48](1992) 26 NSWLR 450.

[49]Ibid 471 (emphasis added).

1. Of course, so to state the principle is one thing and to apply it is another.  As Gleeson CJ remarked in Australian National Industries Ltd v Spedley Securities Ltd (in liq),[50] it is impossible to apply the principles relevant to a determination of whether a judge has exhibited apparent bias without paying close attention to the particular circumstances of the case. Accordingly, an allegation of ostensible bias is perhaps more likely to succeed where what is in issue is a question of fact or the assessment of credit,[51] and particularly a determination of fraud,[52] than where, as here, what is in issue are questions of adjectival and substantive law pertaining to the admissibility of evidence.  Indeed if all that is involved is a question of law, it is difficult to see that any possibility of ostensible bias could arise unless perhaps the judge expressed his determination in a manner which was so dismissive of the opposing view or otherwise in terms of such strength of conviction as to convey that he or she would not be disposed to adopt a different course regardless of further argument.

   [50](1992) 26 NSWLR 411, 413 (in diss. but not in principle) (‘Spedley’).

   [51]Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, 448 [72].

   [52]Spedley (1992) 26 NSWLR 411, 422 (Kirby P); British American Tobacco Australian Services Ltd v Laurie (2011) 242 CLR 283, 333 [145] (Heydon, Kiefel and Bell JJ) (‘BATAS’).

1. Ultimately, however, whether the issue be one of fact or law, where suspected pre-judgment of an issue is relied on as the basis of apparent bias:

…what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[53]

And, consistently with the paradigm of the fair-minded lay observer, that test must be applied through the eyes of a non-judicial observer and without recourse to all the information that a judge or practising lawyer would have, and requires the identification of the information on which the decision is based. 

[53]Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 100 (Gaudron and McHugh JJ) (emphasis added); BATAS (2011) 242 CLR 283, 305 [45] (French CJ) (in diss. but not in point of principle).

1. We approach the matter accordingly.[54]  As it appears to us:

1)        CB’s case is in relevant respects similar to CA’s case.

2)The judge’s ruling that the DHS and other social welfare and health care records were not admissible as business records might lead a reasonable observer of CB’s case to conclude that the judge had a pre-conceived view that the records in CB’s case were not admissible as business records.

3)The judge’s ruling in CA’s case that Dr Gibbs’ opinions of CA’s mental state and its possible forensic consequences was not admissible as opinion evidence might lead a reasonable observer of CB’s case to conclude that the judge had a preconceived view that Dr Gibbs’ opinions of CB’s mental state and its possible forensic consequences was not admissible as opinion evidence.

4)The judge, however, made it clear to counsel in CB’s case that he did not regard his ruling in CA’s case as foreclosing the issue for the purposes of CB’s case and that he was willing to entertain argument and to consider the issue afresh.

5)The judge also did not make any finding or observation adverse to the credit or reliability of the applicant, Dr Gibbs, or any other proposed witness in CB’s case. 

[54]BATAS (2011) 242 CLR 283, 305 [45] (French CJ).

1. Taking all things into account, we do not consider that a fair-minded lay observer would have an apprehension firmly established on reasonable grounds that the judge’s mind was so prejudiced in favour of the conclusion that the records were not admissible as business records and that Dr Gibbs’ opinion was not admissible as opinion evidence that his Honour was not prepared to alter that conclusion irrespective of such arguments as might be advanced.  The fact that the judge did not change his conclusion after hearing argument, is irrelevant.[55]

   [55]Ibid 308 [51] (French CJ).

CA:  Ground 10 — Admitting evidence of CA’s reaction to applicant’s hugging as context evidence

1. Ground 10 in CA’s case repeats the contention earlier mentioned that the judge erred in treating and admitting evidence of CA’s reaction to the applicant hugging her as context evidence.  For the reasons earlier given, we reject ground 10.

CA:  Ground 11 — Charge unbalanced

1. Ground 11 in CA’s case was abandoned.

Conclusion

1. In the result, we would allow the appeal in each case, quash the convictions entered below and order that a new trial be had.

- - -