Leland Kenneth Patrick[1] v The Queen
[2014] VSCA 89
•14 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0066
| LELAND KENNETH PATRICK[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES | NEAVE and TATE JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2014 |
| DATE OF JUDGMENT | 14 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 89 |
| JUDGMENT APPEALED FROM | DPP v Patrick (a pseudonym) (County Court of Victoria, 15 March 2013, Judge Maidment) |
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EVIDENCE – Appeal against conviction – Six charges of indecent assault and one charge of gross indecency – Appellant sentenced to six years and three months imprisonment with a non‑parole period of four years – Accused apologised to complainant ‘for the things I have done’ – Whether the complainant’s perception of what the accused was referring to when he made that apology could be characterised as opinion evidence – Trial judge erred in admitting evidence as to the complainant’s perception of what the accused meant when apologising because her perception added no more to the evidence than the words of the apology itself – No miscarriage of justice because the trial judge directed the jury that they could only rely on the admission if they were satisfied that it was an admission of sexual abuse – Appeal dismissed – Evidence Act 2008 (Vic) s 66A, 78 – Lithgow City Council v Jackson (2011) 244 CLR 352, Smith v The Queen (2001) 206 CLR 650.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| The Appellant | Mr T Alexander with Mr H Kirimof | Paul Vale Criminal Law |
| The Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
TATE JA
SIFRIS AJA:
This is an appeal against conviction by the appellant, Leland Kenneth Patrick (a pseudonym), who was convicted by a jury in the County Court of six charges of indecent assault and one charge of gross indecency.[2] On 15 March 2013, he was sentenced as follows:
[2]He was indicted on 15 charges. The jury returned verdicts of guilty on seven charges and of not guilty on eight other charges, having been directed to return verdicts of not guilty on two of these charges.
Charge on Indictment Offence Maximum Sentence Cumulation 2 Indecent Assault [Crimes Act 1958 (Vic) s 44(1)] 5 years
[Crimes Act 1958 (Vic) s 44(1)]16 months 2 months 3 Indecent Assault 5 years 20 months 4 months 4 Indecent Assault 5 years 20 months 14 months 10 Indecent Assault 5 years 20 months 15 months 11 Gross Indecency [Crimes Act 1958 (Vic) s 50(1)] 2 years
[Crimes Act 1958 (Vic) s 50(1)]8 months 4 months 12 Indecent Assault 5 years 30 months Base 14 Indecent Assault 5 years 30 months 6 months Total Effective Sentence: 6 years 3 months Non-Parole Period: 4 years Pre-sentence Detention Declared: 164 days 6AAA Statement: N/A Other orders: Forensic Sample Order, sentenced as a serious sexual offender on charges 4, 10, 11, 12 and 1, registrable sex offender for life.
The appellant initially sought leave to appeal against conviction relying on two proposed grounds of appeal. On 9 October 2013, Coghlan JA refused leave to appeal on one of those grounds, granted leave to appeal on the other ground and, in effect, permitted that ground to be modified. The two grounds on which leave was granted were that:[3]
2.The trial judge erred by allowing the prosecution to adduce evidence of a statement made to the complainant and directing the jury that the statement was capable of being used as a confession.
2B.Wrongful admission of opinion evidence in that the trial judge erred by allowing the prosecution to adduce evidence of a statement made by the complainant and failing to direct the jury to disregard the statement.
[3]See Leland Kenneth Patrick (A Pseudonym) v The Queen (Supreme Court of Victoria, Court of Appeal, Coghlan JA, 9 October 2013).
At the hearing of the appeal the appellant abandoned ground 2.
Background
The complainant, SW, is a daughter of the appellant. Charge 2 related to events that were alleged to have taken place while SW was seven or eight years old in the family home in Warranwood. SW gave evidence that she was in the bathroom, she had finished her bath and had her towel on. The appellant came in and rubbed her vagina with his fingers. The appellant wanted to go to the bedroom. SW said ‘No, I want to stay here’.
Charge 3 related to events that allegedly occurred after the family had moved to Boronia. It was a hot day and SW had closed all the curtains and doors in her room to keep it cool. SW had been out in the backyard pool swimming and then went into her room. She was proud of having a cool room and said to the appellant, ‘Dad, come have a look at my room, it’s so cool in there’. The appellant came in and closed the door. He sat beside SW on the bed and put his hands down the front of her clothes and started touching her vagina with his fingers and rubbing her clitoral area. The appellant said ‘Oh is this what you wanted me in here for?’.
Charge 4 relates to an incident in Boronia when SW was unable to sleep and had pretended to sleepwalk into the lounge room. The appellant took her back to bed and reached under her nightgown and started to rub her clitoris and said, ‘Is this what you wanted? Is this what you were after?’.
Charges 10 and 11 relate to an incident which allegedly occurred in a caravan in the appellant’s factory in Lilydale. The appellant asked SW to come down to the caravan and make lunch. Her brother DF was playing somewhere around the factory at the same time. The appellant took her to the couch in the caravan and rubbed her clitoris (Charge 10). He then asked SW masturbate him (Charge 11). The appellant was acquitted of a number of other charges relating to incidents which allegedly occurred at the factory.
Charges 12 and 14 relate to incidents that allegedly occurred at the appellant’s house in South Croydon, where he lived after separating from the complainant’s mother. On one specific occasion, it was night time and they were in the appellant’s bedroom. The appellant was lying on the bed. SW did not have any clothing on her bottom half. The appellant licked her vagina and asked SW to lick his penis saying, ‘just kiss it to start with’. SW kissed his penis a couple of times and then went back to rubbing it. At this stage the appellant put his finger in her bottom (Charge 12), as well as licking her vagina (Charge 14).
In 2004 or 2005, when SW got engaged, the appellant wanted to have a get together, as her brother, DF was coming down from Queensland. It was agreed to have the get together at the appellant’s factory in Seaford. The appellant became very drunk. SW felt uncomfortable and she went to tell the appellant that she was leaving. The appellant allegedly made a statement which the prosecutor relied on as an admission. SW said she was scared and she took her family and left.
The complainant’s mother gave evidence that SW told her that her father had sexually abused her as a child. SW reported the offences to the police in December 2009.
Ground 2B
The Crown led evidence about what happened between SW and the appellant at the engagement party. SW gave the following evidence about the discussion:
Now, did something happen at that, was there a get together?
There was. I went with my parents and my grandparents, my then fiancée, my sister-in-law, and husband and also my brother-in-law.... After a couple of hours it was obvious that my father was very drunk and I was felling [sic] very uncomfortable, and so I went, I think I went to tell him I was leaving, and he said to me, ‘I need to talk to you. I want to apologise for the things I have done.’ But he was very drunk and slurring and it scared me and I didn't want to be there and I grabbed my family and I left.
And there was no subsequent discussion with him about that?
No.
The prosecutor then asked:
What did you take him saying, ‘I want to apologise for the things I’ve done’ to be referring to?
and the respondent said
I took it to refer to his behaviour and what he had done to me physically.
And the things that you have been telling us about?
Yes.
Defence counsel did not object to the admission of this evidence at the time when it was given and the complainant was not challenged about it in cross‑examination.
Later, the prosecutor sought guidance as to how the trial judge proposed to treat this evidence in his charge, noting that it did not relate to any discrete offence. In discussion with counsel the judge expressed the view that the statement was capable of being regarded as an admission and therefore admissible despite its hearsay character. He asked defence counsel if she wished to make any submissions on that matter.
Defence counsel then submitted that the statement was not capable of being treated as an admission, because it was inherently ambiguous. In the absence of the jury his Honour drew defence counsel’s attention to s 66A and s 78 of the Evidence Act 2008 (‘the Act’), and the prosecutor referred to the exception to hearsay in s 66A relating to representations about a person’s ‘feelings…knowledge or state of mind’. Defence counsel did not make any submissions on the relevance of these provisions. Rather she appears to have accepted that the apology was capable of amounting to an admission and should be left to the jury on that basis. She foreshadowed she would not take that issue any further in her submissions, but would address the jury on the issue. At that stage defence counsel did not differentiate between the evidence of the appellant’s words of apology and the evidence as to what the complainant believed that it meant.
In her closing address, defence counsel referred to the ambiguity of the statement said to have been made by the accused. The argument about ambiguity was relevant to the question whether hearsay evidence was admissible as an admission. As we have said, ground 2, which alleges that the statement was not capable of being an admission, and should therefore have been excluded, has been abandoned. Following further discussion the judge gave defence counsel more time to consider whether she wanted to make any further submissions, relevant to the admissibility of SW’s evidence about events at the party. Defence counsel did not pursue the issue.
In his charge the trial judge gave the jury directions about the use of various statements made by the appellant which the Crown relied upon as admissions by the appellant, including his apology at the party. In the context of that statement the judge said:
You will recall the evidence given by [SW] of an occasion in 2004, I think it was around her 30th birthday, I think it might have been her engagement party. At any rate it was a family get together, she said her brother was there and the accused was there and during the course of the evening she had gone up to him and had a conversation with him. I think I have already drawn your attention to the evidence in that regard. It was to the effect that the accused endeavoured to apologise to her for his conduct towards her and I think I pointed out to you that she expressed an opinion that what he was getting at there was an apology for the sexual conduct that he had levelled against her during her childhood. That is capable of being regarded by you as an admission by the accused.
After referring to other alleged admissions made by the appellant, his Honour referred again to the statement which SW said her father made at the party, told the jury they had to be satisfied the statement was made and said:
Firstly, you must be satisfied that the accused actually made the alleged admission. Well, you may have no difficulty about that in relation to the recording of his answers in the police interview. But clearly there is a more contentious issue as to whether he made the admission to [SW] at the family gathering in 2004. So you must be satisfied that the accused actually made the alleged admission before you can use it in the case.
Secondly, you must be satisfied that the accused’s alleged admission was true. In other words, that he intended by the admission to admit the facts asserted in the admission. You will have to evaluate that in relation to each of the alleged admissions. Clearly in the interview you’ve got the actual answers so that you’re in a better position to evaluate. But you’re going to have to consider not just what he is alleged to have said to [SW] in relation to that admission in 2004, but as to whether her opinion as to what he was trying to convey was well-founded. I have already given you directions about the use of opinion evidence in this regard, which is the exception to the rule. Ordinarily as I said to you yesterday it’s your opinion alone that counts about the evidence but opinion is introduced into this case for the reasons that I have already outlined.
So in this case, the prosecution argues that each of these admissions may be used by you as part of the evidence in support of their case. The defence say ‘well, no look at the evidence as a whole and you should not regard those as being admissions of any substance that undermine in any way the thrust of the defence case, which is none of this happened and there was little or no opportunity for it to have happened’.
So it is for you to determine based on all of the evidence whether he made the relevant statements said to be the admission and whether the statement was truthful and whether the accused intended by the admission to convey what the admission appears to assert. If you’re not satisfied of both of those matters beyond reasonable doubt, put the admission to one side and focus on the balance of the evidence.
The reference to opinion evidence in the passage above arose out of directions on that matter given earlier in the charge. His Honour first directed the jury on the approach they should take relating to a complaint of abuse made by SW to her friend A, in circumstances where A had told SW she had had a similar experience with her own father. The conversation between the girls did not describe the abuse in detail. His Honour said that each of the girls had ‘expressed opinions about what was being said to them or communicated to them by the other’. He continued:
Ordinarily witnesses are now allowed to give opinions in court. Witnesses confine their evidence to their own observations. That is because it is you who are the judges of the facts and usually it is only your opinion that is relevant. However the law says that when a person gives evidence about something he or she witnessed, he or she may give his or her opinion about the thing if it is necessary in order for you properly to understand what it was that the person witnessed. That is the case here.
A little later in his charge his Honour referred to the conversation at the engagement party and said:
So she has expressed an opinion that what the accused was endeavouring to communicate to her in 2004 was an apology for the sexual abuse that had been perpetrated upon her. Again that is an opinion. So as I say this is an exceptional circumstance, that she is expressing an opinion so she can more readily understand the significance of her evidence as to what she observed.
You have to keep in mind that it is only the witness' opinion that is being expressed. You are not required to accept that opinion. You are the judges of the fact and the opinions expressed are merely bits of evidence along with the other bits of evidence which you may accept or reject as you see fit. When assessing the opinions expressed in those passages that I have referred you to, you should examine the quality of the reasons offered for the opinions and the facts that support the opinions. The witness' opinion is only as valuable as the facts upon which it is based, and it is only valuable if the facts are true and accurate.
After the judge had given these two directions there was some discussion between defence counsel and the judge as to the opinion evidence direction which he had given, which related to the communications between SW and A. However defence counsel took no exception to the admissibility of SW‘s evidence about what she believed the appellant meant in the engagement party conversation, or to the directions given by his Honour on this issue.
Counsels’ submissions
In support of ground 2B, the appellant submits that SW’s statement as to what the appellant had meant when he apologised to her was inadmissible because it was irrelevant, or alternatively, because it was opinion evidence which was inadmissible under s 76 of the Act. The appellant submits that there was no rational basis for the opinion, other than an assumption by SW, predicated on her belief in the appellant’s guilt. The appellant argues that the complainant’s opinion was at best mere speculation or guesswork.
The appellant submits that neither s 66A or s 78 of the Act makes SW’s evidence, about what she thought the appellant meant when he said he wanted to apologise to her, admissible. We interpolate that s 66A creates an exception to the hearsay rule, relating to contemporaneous representations about a person’s health, feelings, sensations, intention, knowledge or state of mind. But it has no relevance to the prohibition on the admission of opinion evidence in s 76 of the Act, ‘to prove the existence of a fact about the existence of which the opinion was expressed’.
The appellant submits that s 78, which provides an exception to s 76 permitting admission of evidence of lay opinions in certain circumstances, does not apply in the circumstances of this case. Section 78(a) requires the person’s opinion to be based on what he or she ‘saw, heard or otherwise perceived about the matter or event’. The appellant argues that the complainant’s evidence about what she thought he was referring to when he apologised to her was not an impression of something she perceived about a matter or event, but simply speculation as to what was in his mind when he made the statement. The appellant also argues that the opinion was not necessary to obtain an adequate account or understanding of the person’s perception of the matter or event, as required by s 78(b) of the Act.
The appellant relies on an analogy between the facts in this case and those in Smith v The Queen.[4] In that case the question was whether the opinions of police officers who had viewed a video of an armed robbery about the identity of an offender were admissible as opinion evidence. The majority of the High Court held that the evidence did not pass the relevance test in s 55(1) of the Act, so that it was unnecessary to consider whether s 78 applied. Kirby J held that the evidence was relevant but was inadmissible as opinion evidence, because the policemen were not eyewitnesses to the robbery and their evidence did not fall within s 78.[5]
[4](2001) 206 CLR 650 (‘Smith’).
[5]Odgers is critical of that conclusion see Stephen Odgers, Uniform Evidence Law, (Lawbook Co, 10th ed, 2012) 1.3.4180.
The appellant submits that, as in Smith, the complainant’s evidence was inadmissible because the complainant was in no better position than the jury to determine what the appellant meant when he apologised to her. Hence the admission of the complainant’s evidence as to the meaning of the statement made by her father, usurped the jury’s function by substituting the complainant’s understanding of the statement for the jury’s own perception of its meaning.
Finally, the appellant argues that the wrongful admission of the opinion evidence was an error in the trial resulting in a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.
The respondent argues that the evidence as to the complainant’s perception of the meaning of the appellant’s apology was admissible as an exception to s 76 of the Act, contained in s 78. The respondent distinguishes the facts in this case from Smith on the basis that in that case the police officers who viewed the video were not present at the alleged robbery. The respondent argues that, unlike the appellant in Smith, the complainant was present and heard the alleged admission. As a result, the respondent argues that the opinion was admissible to gain an understanding of what her perception was about what the accused meant, when he apologised to her.[6]
[6]Although ground 2 has been abandoned, the respondent alluded to the fact that the judge gave a Burns v The Queen (1975) 132 CLR 258 direction, as he was required to do, in relation to the alleged admission.
The respondent argues that there was no miscarriage of justice in circumstances where the appellant’s counsel made no objection to the admission of the evidence. His Honour gave appropriate directions as to the use of lay opinion evidence and trial counsel had not taken any exception to these directions.
Conclusion
The first question to be considered is whether SW’s evidence about what her father meant should be characterised as opinion evidence. Although both counsel assumed that this was opinion evidence, in our view it is not accurately described in that way. SW’s evidence about the meaning of the apology was based on the context of the relationship between her and her father. All language is contextual, in the sense that it derives meaning from what has previously been said or done by the speaker and the hearer.
Evidence about what a person meant in making a particular statement will often be based on a code of communication between the speaker and the hearer. As this Court remarked in R v Strawhorn:[7]
The meaning ascribed to a particular expression is not ascertained simply by reference to the words employed, but may involve consideration of many factors, including the tone in which they are uttered, the background against which they are spoken or written and the identity of the person using them, bearing in mind his or her relationship to the individual addressed.[8]
[7][2008] VSCA 101.
[8]Ibid [142].
People who know each other often use words in ways that do not correspond to their ordinary meaning. For example, a child who alleges she has been sexually assaulted may give evidence that the accused told her in front of other family members to change into her pyjamas and go to bed and that based on her previous experience she knew that the accused was telling her to prepare for sexual activity. In such circumstances the evidence might well be relevant to and admissible for the purposes of proving the offences. The admission of that evidence would be subject to the judge’s power to exclude the evidence under s 135 of the Act and the requirement in s 137 of the Act to exclude it if its probative value was outweighed by the danger of unfair prejudice to the accused.
In this case however, the complainant’s statement failed the test of relevance in s 55 of the Act, because it could not ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’. The fact in issue was whether the appellant assaulted the complainant, a matter about which the complainant gave direct evidence. Her subsequent interpretation of his apology provides no greater support for her allegations than her direct evidence.
By contrast, if the complainant had been asked if the accused had done anything to her which warranted an apology (other than the alleged sexual acts), her evidence that there was no reason for him to apologise to her might well have been relevant to the question whether his statement was capable of being treated as an admission that he had committed the acts with which he had been charged.
Because we have concluded that the complainant’s evidence was inadmissible because it was irrelevant, it is only necessary to give brief consideration to the appellant’s submissions relating to the prohibition on the admission of opinion evidence under s 76 of the Act.
If, contrary to our view, the complainants’ interpretation of her father’s evidence was relevant opinion evidence, a number of more difficult questions arise. Sections 76 and 78 of the Act provide as follows:
76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
78 Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
In Lithgow City Council v Jackson[9] (‘Lithgow’) the plurality (French CJ, Heydon and Bell JJ, with Gummow J and Crennan J agreeing) observed that:
Function of common law rule. The common law permitted the reception of non‑expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more.[10] The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts[11] so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
There is controversy about whether s 78 is precisely identical with the common law.[12] But it is clear that s 78 is dealing with the same problem as the common law did in instances within the category just described.[13]
[9](2011) 244 CLR 352.
[10]See, eg, Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, pp 44–204, §§1933–1978.
[11]Presumably the Court is referring to ‘primary facts’.
[12]In Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association (NSW and ACT) (1998) 154 ALR 527 at 531, Sackville J said: ‘Section 78 substantially alters the common law … While lay opinion evidence was admissible in certain classes of cases under the common law …, s 78 expands the scope for such evidence’.
This is a common view: see, eg, Daniels v Western Australia (2000) 178 ALR 542 at 546‑547 [17]. Its correctness depends on the assumption that the common law ‘classes of cases’ comprised a narrow closed category – ‘an apparently anomalous miscellany of ‘exceptions’: Australia, The Law Reform Commission, Evidence, Report No 26 (1985), vol 1, p 410 [739]. To the extent that the common law ‘exceptions’ were very numerous, and were only examples of a broader category, the differences between the common law and s 78 dissolve.
[13]Lithgow (2011) 244 CLR 352 [45]–[46].
Further, the purpose of s 78 is to
permit admission of evidence of a witness’ perception about the meaning of a gesture, or a look, because the primary facts on which the opinion is based are ‘too evanescent’ to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle‑aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed.[14]
[14]Ibid 373 [48].
An opinion is ‘an inference from observed data’.[15] In Lithgow the evidence was held not to amount to evidence of opinion because the ambulance officers whose opinion was relied upon had not actually observed the injured man in the position in which he fell.
[15]Lithgow (2011) 244 CLR 352, 365 [30].
Section 78(a) requires the opinion to be based on what the person ‘saw, heard or otherwise perceived about a matter or event’. The cases indicate that the ‘matter or event’ must have been witnessed by the person expressing the opinion.[16] In our view the words ‘matter or event’ in s 78 are capable of covering conversation or statement. At common law opinion evidence relating to the emotion with which words were said (for example anger or fear), would have been regarded as opinion evidence. By analogy the same approach could apply to the meaning of a conversation.
[16]Ibid 368; see also Smith v The Queen (2001) 206 CLR 650, 690 ( Kirby J). Odgers criticises this view at 344,1.3.4180, but suggests that the same conclusion may follow from the application of the necessity requirement in s 78(b).
In Connex Group Australia Pty Ltd v Butt[17] (‘Connex’) the question was whether file notes made by a witness at the trial, which expressed an opinion about the gist of a conversation which had occurred at a meeting were admissible as opinion evidence under s 78(a).[18] The witness could not recall the precise words spoken at the meeting. White J said:
The statements objected to were statements of Mr Postema’s opinion, being inferences he derived from observed and communicable data. However, his opinion was based on what he heard and otherwise perceived about the telephone conversation. I include in his perception of the conversation his understanding of it. A person’s perception includes what the person understands about the matter perceived of which he or she has gained knowledge through the senses. (Macquarie Dictionary 3 Ed, Revised). The conversation was a matter or event. The asserted outcome of the conversation is itself a ‘matter’. In Guide Dog Owners & Friends’ Association Inc v Guide Dog Association of New South Wales and ACT[19] Sackville J posed but did not answer the question as to whether evidence of a conversation in which a witness participated could constitute ‘matters’ or ‘events’ for the purpose of s 78. I see no reason why not.
As Sir Richard Eggleston acknowledged in the passage quoted in paragraph 6 above, and as the passages from Wigmore demonstrate, a person’s opinion about a matter or event may be of value even if the person has no recollection, or an incomplete recollection, of the primary facts perceived. In my view the combined effect of ss 76 and 78 is to exclude non-expert opinion evidence if it is not based on personal perception (ss 76 and 78 (a)), or, if it is superfluous because all of the facts can be told to the tribunal so as to put it in as good a position to draw the inference as the person expressing the opinion. (ss 76 and 78 (b)).[20]
[17][2004] NSWSC 379.
[18]Despite its hearsay character it was admissible under an exception to the hearsay rule.
[19](1998) 154 ALR 527, 530–531.
[20]Connex [2004] NSWSC 379 [21]–[24].
There are a number of cases in which a witness’s description of a facial expression has been held to amount to opinion evidence falling within s 76. In R v Van Dyk[21] (‘Van Dyk’) the mother of a complainant in a sexual offences case gave evidence that the appellant always seemed to be around the girls he was alleged to have sexually abused and ‘I used to see a look on his face when he looked at any of the girls’. When pressed as to what she meant, she described this as ‘a look of wanting’.[22]
[21][2000] NSWCCA 67.
[22]Ibid [26].
In the New South Wales Court of Criminal Appeal, Smart JA (Meagher JA and Simpson J agreeing on this point) held that the judge had not erred by holding the evidence was admissible under s 78 because ‘a look of wanting’ was a matter of impression and opinion and that the test in s 78(b) had been satisfied.[23] However the majority of the Court held that the evidence should have been excluded under s 137 of the Act, because the probative value of opinion evidence about the meaning of ‘a look’, given 14 years after the event, was minimal and was far outweighed by the danger of unfair evidence to the accused.
[23]Ibid [133].
In R v Whyte[24] the New South Wales Court of Criminal Appeal considered the admissibility of evidence that a woman had told her mother that the accused man who had physically attacked her had tried to rape her was admissible as opinion evidence, to support a charge of detaining a victim with intent to have sexual intercourse with her. Spigelman CJ said that:
The parties make submissions on the basis that the evidence was only an assertion of a belief. Two questions arise. First, is the belief relevant to a fact in issue, most relevantly the intention of the Appellant being of a particular character. Secondly, is it admissible as lay opinion.
The words used – ‘tried to rape me’ – would in their ordinary meaning refer to an attempt to have penile intercourse. In my opinion, the victim of a sexual assault who has a belief as to what is being done is entitled to express that belief.
The Appellant’s submissions focused on the Appellant’s physical acts, e.g. following the complainant, banging on the toilet door, pulling her hair etc. as if such objective conduct of a physical character constituted the full scope of relevant evidence. That is not so. It is not the case that a description of the objective events was all that was relevant. This is clear from the fact, for example, that the complainant gave evidence that the Appellant ‘looked angry’. Evidence of this character is capable of being given by a victim and is not necessarily able to be identified in terms of physical movements.
The same is true of a belief by a woman who has been assaulted that the intention of the attack was sexual gratification. This is not something necessarily capable of full description by describing the movement of parts of the body or other physically observable acts. Such a belief can arise from the impression given at the time by matters which cannot be described in a physical way. Such an impression may only be able to be conveyed to the jury in the form of a statement such as ‘He tried to rape me’, as occurred in this case.
In my opinion, the evidence was relevant to a fact in issue. It is sufficient to say that it was relevant to whether the assault had a sexual overtone of any character. I am also of the view that it was relevant to the particularised fact in issue, i.e. whether the Appellant intended penile intercourse. Whether it was of any weight, especially for the latter issue, was a matter open to be tested in cross-examination.[25]
[24][2006] NSWCCA 75.
[25]Ibid [30]–[34].
His Honour held that the evidence was admissible hearsay and that although it was opinion evidence it could be admitted under the exception in s 78.
Having decided that the statement was inadmissible as evidence of the truth of the assertion, Simpson J considered the question whether it amounted to opinion evidence under s 78. Her Honour said that if what the complainant said could be properly characterised as an opinion, ’then it was plainly an opinion … based on what she saw, heard or otherwise perceived about the events in question’.[26] For reasons explained below, she held that the evidence did not fall within s 78(b).
[26]Ibid [57].
Barr J held that the evidence was not opinion evidence at all, because the witness had simply described an event to her mother rather than expressing an opinion about the event.[27]
[27]Ibid [67].
The evidence given in this case is not on all fours with these examples. SW was not describing the gist of what was said by her father, but rather her perception of what he had meant by apologising. Nor did SW give evidence about what she interpreted from her father’s facial expressions or gestures, as occurred in Van Wyk.
It could be argued that in this case SW’s perception of what the appellant meant was admissible, because it is analogous to the situations described above. We would reject that argument. Here the complainant was not forming a view as to the person’s state of mind (e.g. anger, sadness) by observing a gesture or a visual expression, but rather giving evidence about what was in the appellant’s mind, when he made his apology.
Moreover the evidence of SW’s perception that her father was apologising to her for past sexual misconduct was not ‘necessary’ to obtain an adequate account of her perception of the matter or event, as required by s 78(b). Her evidence of what the appellant meant was an interpretation of a statement made by the accused, which assumed the truth of that which the jury had to decide. Since s 78(b) did not apply, her lay opinion evidence was excluded by s 76 and the judge should have told the jury to disregard it. However for the reasons which follow we do not consider that the judge’s failure to do so could have been productive of any miscarriage of justice.
In our view the appellant correctly abandoned ground 2, which alleged that the judge erred in holding that evidence of the appellant’s statement to his daughter was admissible and in directing the jury that the statement was capable of being used as an admission. Consistently with Burns v R,[28] the judge directed the jury that they could only use the admission if they were satisfied beyond reasonable doubt that the appellant intended by the admission to ‘convey what the admission appears to assert’ and that the substance of the admission was truthful.[29] In our opinion it would have been entirely clear to the jury, from the charge as a whole, that they could only rely on the admission made at the engagement party if they were satisfied that it was an admission of his sexual abuse of the complainant.
[28](1975) 132 CLR 258.
[29]See also Jury Charge Book 4.6.1, 4.6.2.
The appellant did not argue that the judge erred by failing to tell the jury that they should consider the specific offences or sexual activities to which the admission related. In R v MMJ,[30] the closing address ‘highlighted, at times in extravagant and sometimes inappropriate language’[31] the accused’s silence in response to a question from his wife about whether he was sexually involved in or had been sexually involved with his step‑daughter.[32] Ashley JA held that because of the ambiguity as to whether the sexual involvement was current or had occurred in the past,[33] and because the complainant had alleged that her step-father had committed both penetrative and non‑penetrative sexual offences against her, the admission was insufficiently specific to relate to the offences with which the applicant was charged. It followed that the jury should have been directed that the alleged admission was not an admission of a particular offence and could be used only as evidence of the existence of a sexual relationship between the complainant and the applicant. In that case it was held that the failure to give such a direction had given rise to a miscarriage of justice.
[30][2006] VSCA 226.
[31]Ibid [85].
[32]By contrast only very brief reference was made to the admission by the prosecutor in his closing address in this case and the jury were told that they should use the admission as the judge instructed them.
[33]Ibid [87].
In Choudhary v The Queen,[34] the question was whether the appellant’s nod when he was accused by the complainant’s mother of the relevant offences and his later statement ‘ Yeah it’s true’ were capable of being regarded as an admission to particular sexual offences. The judge gave no direction on what evidence was capable of establishing that an admission had been made, or how to use the evidence if satisfied that an admission had in fact been made.[35] Not surprisingly the Crown conceded that the jury direction was inadequate. Priest JA considered that the concession was properly made because the jury ‘would need to be instructed, that, at best, the admission could only be used to show that there was a sexual relationship between the appellant and the complainant’[36] and could not be used in support of the allegations relating to specific offences.
[34][2013] VSCA 325.
[35]Ibid [56].
[36]Ibid.
By contrast, in this case the jury were directed about the use of the alleged admission and there was no complaint on appeal about the terms of the direction. Nor was any exception taken at the trial about the terms of the direction relating to the use of this and other admissions. Further, unlike the facts in MMW, all of the alleged offences were, in effect, indecent assaults so that there could have been no doubt about the nature of the alleged sexual offending. Thus if the jury accepted that the appellant’s statement was actually made and was intended to refer to his sexual abuse of the complainant, they were entitled to treat it as an admission that he had indecently assaulted the complainant, although the occasions on which he did so were not specified.
The error relied upon relates only to the judge’s failure to direct the jury to disregard the complainant’s opinion as to the meaning — to her — of the statement which the appellant made to her at the engagement party.
If she had not expressed that opinion, the jury would in any event have considered the effect, veracity and probative value of the admission, taking into account the directions given, in respect of which no exception was taken and there is no ground of appeal. They would have formed a view accordingly. We would reject the argument that the jury’s view of the effect of the admission would have been affected by the incorrect reception of the complainant’s evidence as to what the appellant meant in apologising to her. We have two reasons for that conclusion.
First, the directions given to the jury as to the use of the alleged admission which are set out in [18] above are concerned with the use of that admission. In his last word on this topic the judge directed the jury to consider whether the statement was made, whether it was truthful and whether the appellant ‘intended by the admission to convey what the admission appears to assert’. This was followed by a direction to the jury that if they are ’not satisfied of both of those matters beyond reasonable doubt, [to] put the admission to one side and focus on the balance of the evidence’. Although the judge made a brief reference to the opinion evidence before he made those remarks, he simply referred to his previous directions on the use of that evidence. The specific direction on the admission was capable of standing alone. The jury was therefore instructed to consider the quality of the admission in light of the rival submissions by counsel and the directions given by the trial judge. This was properly a matter for the jury and it was not suggested otherwise.
Secondly, so far as the trial judge added (prior to the direction referred to above) an unnecessary or irrelevant rider or consideration to the direction referred to above, to the effect that in addition to the matters referred to above the jury would have to consider ’whether her opinion as to which he was trying to convey was well founded’, the trial judge referred to two matters that effectively, in our opinion, neutralised the asserted prejudicial effect of the reception of the opinion evidence. First, his Honour reminded the jury about what he had said about opinion evidence and in particular that the jury was not required to accept the complainant’s opinion. In addition, his Honour immediately after this direction (and before) drew the jury’s attention to the defence submission that the jury should not regard the admission as being of any substance.
Consequently, although at this earlier stage his Honour conflated the admission and the opinion of the complainant about the admission, there was no suggestion by his Honour that the admission had force or would gain force by virtue of the complainant’s belief, which was the suggested vice in conflating the opinion evidence with the alleged admission.
The jury was specifically directed to consider the meaning of the statement for itself irrespective of the complainant’s belief. It was not suggested that it was not open to the jury to make such assessment, the statement being admissible. There is no foundation for the suggestion that having been directed that they could ignore the opinion evidence the jury would have simply accepted the complainant’s opinion as to the meaning of the admission, without specifically considering the effect of the statement. The lack of exception to the direction reinforces our view that defence counsel did not perceive that there was any danger that such conflation would occur.
For these reasons we would dismiss the appeal.
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