Lewers (a pseudonym) v The Queen
[2019] VSCA 272
•21 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0254
S APCR 2019 0052
| JASPER LEWERS (A PSEUDONYM) [1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identifying the alleged victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | PRIEST, NIALL and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 November 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 272 |
| JUDGMENT APPEALED FROM: | DPP v Lewers (a Pseudonym) (County Court of Victoria, Judge Higham, 31 October 2018) (conviction); [2018] VCC 1773 (sentence) |
---
CRIMINAL LAW – Appeal – Conviction – Applicant convicted of 23 charges, including threatening to inflict serious injury, common assault, incest, making threats to kill and indecent acts with a child under 16 – Victims are applicant’s biological twin daughters – ‘Overloaded’ indictment – Whether joinder of sexual and non-sexual offences on indictment occasioned error – Whether improper cross-examination of witness should have resulted in severing of indictment – Leave to appeal refused – Charges alleging non-sexual violence and sexual offending had common factual origin – Trial counsel’s forensic decision not to apply for severance did not result in substantial miscarriage of justice – Prosecution’s cross examination cumbersome but not unfair – R v Barrell and Wilson (1979) 69 Cr App R 250, De Jesus v The Queen (1986) 61 ALJR 1 considered.
CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to total effective sentence 12 years and 3 months’ imprisonment with non-parole period of 8 years and 4 months – Whether manifestly excessive – Leave to appeal refused – Protracted period of offending attended by violence – Protection of community a primary sentencing factor.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Nicholas O’Donohue & Co |
| For the Respondent | Mr C B Boyce QC with Mr T Bourbon | John Cain, Solicitor for Public prosecutions |
PRIEST JA
NIALL JA
HARGRAVE JA:
Overview
The applicant is the biological father of twin daughters, ‘RZ’ and ‘GZ’, who were born in an African country in 2003. Shortly after they were born, the applicant fled his African home because of the political situation, leaving his daughters and their mother behind. He arrived in Australia in 2006, and was joined by his daughters in 2009.
An indictment filed in the County Court charged the applicant with 28 separate offences against his daughters. The offences alleged were of both of a sexual and non-sexual nature, and spanned a period between 7 June 2010 and 17 October 2015, when the applicant was aged between 35 and 40 years of age.[2]
[2]The applicant was born in January 1975.
Following a trial, on 15 June 2018 a jury convicted the applicant of 23 of the 28 charges.[3] In relation to RZ, the jury found him guilty of five charges, including making a threat to inflict serious injury (one charge – charge 1); making a threat to kill (one charge – charge 7); common assault (two charges – charges 2 and 4); and incest (one charge – charge 5). And in relation to GZ, the jury found him guilty of 18 charges, including common assault (11 charges – charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20 and 28); making a threat to inflict serious injury (one charge – charge 21); indecent act with a child under 16 (two charges – charge 22 and 26); and incest (four charges – charges 23, 24, 25 and 27).
[3]The jury acquitted the applicant of five charges of common assault (charges 3, 6, 14, 16 and 18).
On 31 October 2018, the trial judge sentenced the applicant to a total effective sentence of 12 years and 3 months’ imprisonment, with a non-parole period of 8 years and 4 months, in the manner we will later set out.
The applicant seeks leave to appeal against both conviction and sentence.
As to conviction, the applicant seeks to rely on six grounds:
1.The prosecution erred in the joinder of the charges on the indictment contrary to s 159(3)(c) Criminal Procedure Act 2009.
2.A substantial miscarriage of justice was occasioned by
(a) the failure to sever the charges 1–5, 8–13, 15, 19–21 from the indictment after of the examination of [TS], and
(b) the overloading of the presentment.
3A.The learned trial judge erred in admitting the evidence of the witness [TS] commenting on the evidence of [ZG] as it
(a) was improper
(b) mislead the witness as to time
(c) contained multiple assumptions in the questions as framed.
3B.In making that decision failed to take into account relevant considerations being s 41(2), (3) and (4)(a) of the Evidence Act 2008.
3C.In allowing the prosecutor to cross-examine in the form of leading questions failed to take into account 42(2)(b), (c) and (d) of the Evidence Act 2008 in allowing the reading of evidence of the complainants to the witness.
3D.Failed to apply the tests in 41(2) and 42(3) of the Evidence Act 2008 respectively.
With respect to sentence, the applicant seeks to advance a single ground as follows:
1.The individual sentences, orders for cumulation, the total effective sentence and the Non-Parole period were all manifestly excessive, in that insufficient weight was given to:
(a) the age of the Applicant and his lack of prior criminal history;
(b) the low risk of re-offending and the Applicant’s prospects for rehabilitation;
(c) current sentencing practices;
(d) the principle of totality.
For the reasons that follow, we would refuse both applications for leave to appeal.
The alleged offending
Before turning to consider the arguments put in support of the grounds of appeal, it is necessary to summarise the alleged offending.
RZ: Charges 1, 2, 4, 5 and 7
Between June 2010 and June 2011, when the applicant and his daughters were living in Flemington, RZ recalls that she did something wrong and the applicant hit her. At the time, she was aged seven years. The applicant then went into the kitchen and took out a knife. He went up to RZ and threatened he would ‘cut her finger off with it’. The applicant held the knife to her fingers and said, ‘I swear to God, I’ll do it if you do it one more time’ [charge 1 – threat to inflict serious injury].
On another occasion when RZ was aged seven, between 1 January 2010 and 13 February 2010, she wet herself. The applicant spat on her, and put her in a bath which he filled with cold water. He forced RZ’s head into the water as she fought to get out, calling her a ‘piece of trash’ whilst he kept pushing her down. RZ felt dizzy and her hands felt numb [charge 2 – common assault]. As RZ pushed up against the applicant she broke his finger. He told her that she had broken his hand and he slapped her with his other hand.
When RZ was around ten, between June 2013 and June 2014, she was home, having just received her school report. The applicant took hold of her legs, and twisted and pulled them as she screamed. He told her to shut up [charge 4 – common assault]. The next morning, RZ’s lower legs were strained and she felt like she could not walk.
On Thursday, 15 October 2015, the complainants’ ‘cousin’, ‘TS’, was temporarily staying over in their room. RZ had suffered a paper cut and wanted a dressing. The applicant whispered to her to come to him when GZ and TS were asleep. RZ later went to get the dressing from the applicant, who told her to come into his bedroom because he wanted to show her something. He whispered in her ear, ‘this is for experience, I’m just getting you ready’, put his finger in her vagina [charge 5 – incest] and kissed her on the lips. RZ felt a burning feeling and was hurting. The applicant said, ‘I’m just helping you, I’m just teaching you’. RZ heard the applicant’s zip and belt. She said she needed to go to the toilet and went out of the bedroom.
RZ returned to her bedroom, and, in GZ’s presence, told TS what the applicant had done. TS told RZ to tell somebody, and GZ said, ‘oh, he does that to me too’.
On Saturday, 17 October 2015, TS was still staying with the complainants, RZ and GZ. The three had been out during the evening. When they arrived home, RZ went to check whether the applicant was there. The applicant was in the kitchen, cutting meat with a knife. He told RZ to get the others, which she did. The applicant then pushed RZ through the doorway and against a wall. He held the knife to her and said, ‘I’ll kill you if you go out without permission again’ [charge 7 – threat to kill].[4]
[4]See [27] below.
GZ: Charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20, 21, 22, 23, 24, 25, 26 and 28
Between June 2010 and June 2011, GZ was around seven years of age. On one occasion, the applicant slapped and backhanded her to the face about four times. He said that she had been trying to lie to him. The applicant told her to go to bed and slapped her again. He then picked GZ up and dropped her onto her back on the floor. Whilst GZ lay on her back, the applicant stepped on her stomach [charge 8 – common assault].
On another occasion around the same time, GZ was getting ready for school and trying to tie her shoelaces. The applicant punched her in the nose and it started to bleed [charge 9 – common assault].
GZ went to school and told a teacher that her father had punched her. After school, the teacher spoke to the applicant. When the applicant and GZ arrived home, he told her to go to her bedroom. The applicant picked GZ up and dropped her onto the floor, and then took her legs and twisted them around each other [charge 10 – common assault]. The applicant told GZ to get up and then repeatedly slapped her. He kneed her in the stomach and told her not to tell anyone [charge 11 – common assault]. GZ’s body was sore afterwards.
On an occasion when GZ was aged eight, she wet herself. The applicant filled the bath with cold water and told her to get into it with her clothes on. He pushed her head into the water, but did not hold her [charge 12 – common assault]. When GZ was in the bath, the applicant punched GZ in the stomach so hard that she could not breathe [charge 13 – common assault].
Between June 2012 and June 2014, when GZ was nine or ten years of age, there was an occasion when the applicant hit her and twisted her arm. He took GZ to her bedroom, told her off and slapped her. GZ fell, and while she was on the ground, the applicant kicked her to the side of her body [charge 15 – common assault].
On another occasion, between 1 January 2015 and 31 January 2015, the applicant told RZ to go to her room. He then started slapping GZ. The applicant picked GZ up and dropped her to the floor. He then stepped on her chest [charge 17 – common assault].
GZ ran away from the family home in North Melbourne on an occasion between 1 July 2015 and 31 July 2015. The applicant found her at the library and punched her in the nose [charge 19 – common assault]. He then took GZ back to the house, filled the bath with cold water, took off GZ’s clothes and put her into the bath. The applicant three times pushed GZ’s head forward and down into the bath so that she could not breathe [charge 20 – common assault]. He then told her to get out of the bath, but GZ struggled to do so because she was numb from the cold.
When she was out of the bath, the applicant took GZ into the lounge room, and slapped and kicked her. He gave her a lecture about not running away. The applicant said he would kill her, and would not let her get out of the house without breaking every bone she had and taking her eyes out [charge 21 – threat to inflict serious injury]. He warned her not to tell the school co-ordinator.
At some time between 14 and 30 November 2014, GZ’s lips were really dry and the applicant told her to put honey on them. He told her to come to the bathroom and he would do it for her. In the bathroom, the applicant used his finger to put the honey on GZ’s lips. He then put honey on her tongue and started to kiss her, with his tongue inside her mouth [charge 22 – indecent act with a child under 16]. The applicant then took off GZ’s pants and underwear, and put his finger inside her vagina. He inserted his finger, moving it faster and then slower [charge 23 – incest]. After a while he stopped, said ‘oh you ate all the honey’ and walked off.
Between 14 November 2014 and 12 October 2015, there was an occasion when GZ was in bed reading ‘Harry Potter and the Chamber of Secrets’. The applicant asked GZ to come into the toy room. He took her pants and underwear off while GZ described what she was reading. The applicant put his finger inside her vagina and told her to keep talking. He moved his finger in and out slowly and then faster [charge 25 – incest]. The applicant took GZ’s top off and starting pushing on her breasts. It hurt, but GZ did not say anything.
On Monday, 12 October 2015, the applicant told GZ to come to the bathroom. He removed her top and underwear. The applicant then put his finger in her vagina, and moved it in and out, faster and then slower [charge 27 – incest], keeping his hand on her back, pushing her towards him. He then put his tongue in GZ’s mouth [charge 26 – indecent act with a child under 16]. After he stopped, the applicant looked GZ in the eyes and then left.
Less than a week later, on Saturday, 17 October 2015, GZ had observed the applicant threaten RZ with a knife and she ran into the kitchen. The applicant called GZ names, put down the knife and started slapping her to the face. He then held GZ by her hair and banged her head against the wall, making her dizzy [charge 28 – common assault]. (The surrounding events were also the foundation of charge 7, the threat to kill RZ.)[5]
[5]See [15] above.
Complaint
Two days after the last assault, on 19 October 2015, GZ disclosed to her year level co-ordinator that she was being physically abused by her father. The co-ordinator sought assistance from the school counsellor. Both GZ and RZ described increasing physical abuse by their father towards them.
On 21 October 2015, both complainants attended the Melbourne West police station. Each made a video and audio recorded statement (‘VARE’).[6]
[6]See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
Conviction grounds 1 and 2(b): Joinder and failure to sever
It is convenient to consider grounds 1 and 2(b) together.
Before turning to the submissions made by the applicant’s counsel in support of these grounds, however, it is instructive to set out some background.
On 8 March 2018, a pre-trial directions hearing was conducted by Judge Lawson (who ultimately did not conduct the trial). Both the prosecutor and defence counsel who later appeared in the trial took part in that directions hearing. Judge Lawson had before her a draft of the indictment upon which the applicant was later tried. Of some significance, there was the following exchange, in which her Honour directed attention to the overloading of the indictment:[7]
[7]Emphasis added to this and following exchanges.
HER HONOUR: All right, thank you, [defence counsel]. Again with this one, [prosecutor], I’m concerned about the indictment being overloaded. I saw there were 18 charges of common law assault.
[PROSECUTOR]: Yes, Your Honour.
HER HONOUR: As well as the other serious charges on the indictment. It seems to me it’s a lot of charges of common law assault, when the main criminality concerns the sexual offending against the children.
[PROSECUTOR]: If Your Honour pleases.
HER HONOUR: So can some consideration be given in relation to resolve that?
[PROSECUTOR]: If Your Honour pleases.
HER HONOUR: It’s too much. Far too much. So I understand it is a trial involving two child complainants, the twin daughters of the accused. …
With respect, in our view the judge’s concern that the indictment was overloaded was completely justified.[8] As did her Honour, we consider that it was undesirable that there be 18 charges of common assault on the indictment when the main criminality involved the sexual offending. But that is not the end of the matter.
[8]See Bauer (a Pseudonym) v The Queen (2015) 46 VR 382; Andrew v The Queen [2013] VSCA 333; Davy v The Queen (2011) 207 A Crim R 266.
On the first day of the trial, prior to arraignment, the trial judge inquired whether consideration had been given to the indictment in light of Judge Lawson’s concerns about it being overloaded. Three things became clear from what the judge was told by counsel: first, the prosecution had decided to ignore Judge Lawson’s concerns, and proceed with the indictment in its initial form; secondly, despite Judge Lawson’s very strong and unequivocal indication that the indictment was overloaded, the applicant’s trial counsel did not seek severance of the indictment (either by severance of the charges relating to each complainant, one from the other, or by severing the charges of common assault from the other charges); and, thirdly, the failure to seek severance was a deliberate forensic strategy by defence counsel. So much is clear from the following exchanges:
[PROSECUTOR]: If Your Honour pleases, I appear on behalf of the Director in these proceedings.
HIS HONOUR: Yes, good morning, [prosecutor].
[PROSECUTOR]: Could I hand up to Your Honour’s associate an indictment No.H11915252.2.
HIS HONOUR: So this indictment reflects the consideration that was (indistinct) to Her Honour Judge Lawson? Am I being too Delphic?
[PROSECUTOR]: It is interesting Your Honour noted that, but I am instructed that the matter was looked at again and instructions were received that the indictment should remain as is, Your Honour.
HIS HONOUR: Twenty-eight counts?
[PROSECUTOR]: Yes, Your Honour.
HIS HONOUR: Rather a lot.
[PROSECUTOR]: Yes.
HIS HONOUR: Very well. I will certify filing the indictment H11915252.2. I should have said to you good morning, [defence counsel].
[DEFENCE COUNSEL]: Good morning, Your Honour, I appear on behalf of [the applicant].
HIS HONOUR: Yes. You have explained to [the applicant] the arraignment process?
[DEFENCE COUNSEL]: I have explained that he will be arraigned, Your Honour.
HIS HONOUR: All right then. Having certified filing the indictment, I will ask my associate – we have got two days – we have some legal argument?
[PROSECUTOR]: Your Honour, we had a brief chat this morning and my learned friend has indicated to me, and I hope I am quoting him accurately, about ---
HIS HONOUR: I am sure if you are not [defence counsel] will bring it to mine or your attention.
[PROSECUTOR]: There is no issue as to severance. There’s a tendency matter which is to be argued, and also my learned friend would be also putting on behalf of his client that this is a case as I understand it as being put of concoction and agreement between the two complainants, and that would be the substantial issue, relevant to the denial that any of these acts took place.
The applicant was then arraigned, and there was the following exchange:
HIS HONOUR: Thank you, [applicant], you can take your seat. Let me just gather my thoughts. The homework that I have done on severance I can put to one side because there is no issue?
[PROSECUTOR]: Yes, Your Honour.
[DEFENCE COUNSEL]: Me too, Your Honour. I apologise, Your Honour, but ---
HIS HONOUR: [Defence counsel], let me stop you there. In this court there is no need to apologise, and certainly not yet anyway. Obviously, I always like to be prepared and done what work I can in advance. So I won’t express any view on it, but anyway we are facing one trial?
[DEFENCE COUNSEL]: Yes, Your Honour, and essentially we won’t be pursuing severance between the two complainants, but what I will seek to have an argument about, what we will have an argument about is the tendency notice and how exactly the charges can be used as tendency as against others, and the main point will be that tendency reasoning is pretty much invalidated by the reasonable possibility of collusion or concoction, and I will make submissions in relation to that, Your Honour.
As we understood the submissions advanced in this Court under cover of grounds 1 and 2(b), counsel for the applicant contended that the charges alleging non-sexual violence should not have been joined with charges alleging sexual offending. Indeed, as we understood the submissions, counsel contended that s 159(3)(c) and Schedule 1 of the Criminal Procedure Act 2009 (‘CPA’) rendered such joinder unlawful. It was submitted in writing that the ‘nature of the threat to a seven year old daughter by the father that he would cut off her finger,[[9]] or to a twelve year old daughter that he would take out her eyes and break every bone in her body[[10]] could not help but prejudice the applicant notwithstanding the directions to the jury by the trial judge’. Further, it was submitted that there was a gap of five years between the first threat of violence (charge 1) and the first sexual offence (charge 5), and other temporal gaps. Moreover, there was a grave danger, counsel submitted, ‘that the applicant would be prejudiced by all allegations of violence, no matter by whom they were made and no matter how temporally distant’. Additionally, the sexual offences concerning GZ sexual offences did not form ‘a series with [RZ’s] threats and violence offences and vice versa’.
[9]See [10] above.
[10]See [23] above.
The contentions that the charges were not properly joined, and that a substantial miscarriage of justice was occasioned as a result of the indictment being overloaded, cannot be accepted.
Section 159(3)(c) of the CPA provides that an indictment must comply with Schedule 1. Clause 5 of Schedule 1 permits an indictment to contain charges for ‘related offences’. By virtue of s 3(1), ‘related offences’ are ‘offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
Furthermore, s 193(1) provides that if an indictment contains more than one charge, ‘the court may order that any one or more of the charges be tried separately’. Section 193(3) permits an order for the separate trial of charges to be made if the court considers that ‘the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment’; or if ‘for any other reason it is appropriate to do so’.[11]
[11]Notwithstanding the generality of s 193, however, s 194(2) provides that, if in accordance with the CPA, two or more charges for ‘sexual offences’ are joined in the same indictment, ‘it is presumed that those charges are to be tried together’. Section 4 of the CPA defines ‘sexual offence’, and it includes incest and committing an indecent act with a child under 16.
The seminal and oft-cited statement as to the meaning of the phrase ‘founded on the same facts’, is that of Shaw LJ in Barrell and Wilson:[12]
The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin.
[12]R v Barrell and Wilson (1979) 69 Cr App R 250, 252–3.
In De Jesus,[13] the applicant was charged with two rapes (and associated offences) committed a month apart. The evidence on one count was not admissible on another, and the defences were different. For one rape charge, the applicant’s defence was alibi; and for the other, consent. Section 585 of the Criminal Code (WA) permitted joinder of charges which ‘form or are a part of a series of offences of the same or a similar character’, and permitted a Court to order severance ‘if in any such case it appears to the Court that the accused person is likely to be prejudiced by such joinder’. Dawson J observed that[14]
for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold’s Criminal Pleading Evidence & Practice, 42nd ed. at par. 1-77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.
Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s. 585 — ‘a series of offences of the same or a similar character’ — is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in [R v Ludlow [1971] AC 29 at 39] that ‘Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series’. Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a ‘series’ without straining the word beyond the meaning which it is reasonably capable of bearing.
[13]De Jesus v The Queen (1986) 61 ALJR 1 (‘De Jesus’).
[14]Ibid 9.
Albeit that it was overloaded, we consider that the indictment complied with Schedule 1. The charges alleging non-sexual violence and those alleging sexual offending had a common factual origin, in that they involved violent and sexual offending by a father against his daughters over a protracted period. Moreover, the applicant’s activities constituted a series of offences of the same or similar character. The evidence suggested that the applicant, as father of RZ and GZ, had for a long period maintained a physically abusive relationship with his young daughters. That relationship progressed from purely non-sexual physical violence to a combination of both physical violence and sexual offending. Importantly, all the applicant’s charged conduct towards his daughters involved an assault (or threat of assault) in one form or another; the alleged victims were the same as between the different kinds of offending; the context for the offending was that of a parent and child relationship of trust; and the offending developed as the complainants got older.
The prosecution’s position at trial was that all 28 charges were properly joined since the charged sexual acts were perpetrated by a man who had exercised a controlling form of violence over his two daughters, that use of violence explaining why his daughters acquiesced to the sexual offending and failed to complain about it.[15] So much seems to have been accepted by defence counsel.
[15]See, for example, Woodley (a Pseudonym) v The Queen [2019] VSCA 32, [27]–[28].
Counsel for the applicant at trial — whose obligation it was to persuade the judge that properly joined charges should be severed[16] — made no application for severance. That was, as we have indicated, a considered forensic decision. Indeed, counsel for the applicant went to the jury on the basis that RZ’s and GZ’s accounts were fictitious, manufactured and the product of collusion. Having decided to adopt such a strategy, counsel’s decision not to seek severance — either as between complainants, or between charges for sexual offending and others — can be understood. It was not a decision that could attract appellate intervention, given the tightly restricted circumstances in which the forensic decisions of counsel at trial will not be held to bind their clients.[17]
[16]R v TJB [1998] 4 VR 621, 630 (Callaway JA).
[17]See, for example, R v Birks (1990) 19 NSWLR 677, 683–5 (Gleeson CJ); TKWJ v R (2002) 212 CLR 124, 134 [31] (Gaudron J), 147–8 [74], 148 [76]–[77], 149–50 [79]–[81] (McHugh J); Ali v R (2005) 79 ALJR 662, 666 [23], 666–7 [25]–[26] (Hayne J), 677 [99]–[100] (Callinan and Heydon JJ); Nudd v R (2006) 80 ALJR 614, 618–9 [7]–[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ).
In these circumstances, it is impossible to say that there has been a substantial miscarriage of justice. Our view that this is so is fortified by the fact that the judge gave a separate consideration direction to the jury with respect to the charges, and specifically warned the jury against propensity reasoning.
Grounds 1 and 2(b) cannot succeed.
Conviction grounds 2(a), 3A, 3B, 3C and 3D: The cross-examination of TS
Counsel for the applicant contended under cover of grounds 3A to 3D that the prosecutor’s cross-examination of TS was improper; and that, following that cross-examination, charges 1 to 5, 8 to 13, 15, and 19 to 21, should have been severed from the indictment.
TS was aged 13 years when she took part in a VARE with police on 20 January 2016, and was aged 15 when she gave evidence at trial. Although she and the complainants referred to themselves as ‘cousins’, RZ and GZ were her best friends. Her account in her VARE did not support aspects of the prosecution case, in that she said that she had never seen the applicant violent with his daughters, and she gave a different account to her friends of what occurred when they were late coming home (on Saturday, 17 October 2015).[18] The following portion of TS’s VARE illustrates the point:
[18]See [15] and [27] above.
QO.K. Did you ever … see their father do anything violent to them?
ANo.
QTo the girls.
ANo. He just … whenever he angry at them he just yells but, no.
QO.K. So you’ve seen him yell.
AYeah.
QTell me about that.
AIt’s just, like, whenever he get angry he just yell but, like, it’s not violent but - yeah.
QYep. And what … was that for? Tell the last time you saw that.
AWhen I – it – it was this place, we went there and when we – and their stepmum wanted us to come with her ---
QYeah.
A--- so we went there. And then we were really late when we come. It was, like, 11.30 pm and stuff.
QYeah.
ASo he was … angry that we were late. And then he was just, like, he was worried and everything so he was just like, ‘Where were you?’ and everything.
QWho was that, who was he yelling at?
AUs.
QYeah.
AAnd he was just like, ‘Where were you?’ and - and, ‘I was worried’, and everything and – yeah.
QAnd what happened then?
AHe was cutting meat when we come home, so when he was speaking he was just, like, he forgot that he was holding that knife in his hand, he was just like, ‘Where were you?’ and everything like that but ---
QSo he was holding a knife in his hand?
AYeah, but it wasn’t to hurt us or something.
QO.K. Tell me … in more detail about what happened there.
AAnd, yeah, he just got upset because we were late, and then we just started talking about our day, how our day was and everything. And, like, and we told him about everything that we saw and everything, and then we just went to sleep.
QO.K. Did you see anything else?
ANo.
Moreover, TS’s account in the VARE seemed to contradict the suggestion that RZ had complained to her in the evening of Thursday, 15 October 2015, that she had been sexually penetrated by her father (GZ also suggesting that she too had been penetrated).[19] TS said that she found the complaint ‘hard to believe’.
[19]See [13]–[14] above.
At trial, the prosecutor was given leave under s 38 of the Evidence Act 2008 to cross-examine TS as an unfavourable witness.
In essence, the applicant’s counsel contended in this Court that the prosecutor’s cross-examination was improper, and that it elicited evidence supportive of the allegations of violence (which should have prompted the applicant’s trial counsel to seek severance of the indictment).
As it applied at the time of the applicant’s trial, s 41(1) of the Evidence Act 2008 permitted a trial judge to disallow an ‘improper question’ (as defined by s 41(3)), and s 41(2) permitted a judge to disallow improper questioning of a ‘vulnerable witness’ (as defined by s 41(4)).[20] By virtue of s 41(6), a party was entitled to object to a question put to a witness on the ground that it was an improper question; although s 41(7) made it clear that the duty imposed on the court by the section applied whether or not an objection is raised to a particular question. Subsection (8) provided that a ‘failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question’. Moreover, s 42 gave a judge ample scope to limit the use of leading questions.
[20]Subsection (1) has since been amended — so that a judge now must disallow an improper question — and subsections (2) and (4) have been repealed. See Justice Legislation Miscellaneous Amendment Act 2018 (No 48 of 2018), s 57.
Counsel for the applicant in this Court contended that the judge failed to consider, or apply, the provisions of ss 41 and 42. The cross-examination of TS was therefore improper, and it elicited evidence that was unfairly prejudicial to the defence case, in that it supported the evidence of RZ and GZ.
The starting point of any consideration of these grounds is the prosecutor’s application to cross-examine TS under s 38. Significantly, the applicant’s trial counsel put no submissions in opposition to the application. Indeed, counsel conceded that ‘her evidence obviously is unfavourable’, and told the judge that ‘the long and short of it is I don’t really think I can realistically resist it’.
Next, the judge placed no limitations on the prosecutor’s cross-examination. He was not asked to do so by defence counsel. In the result, the prosecutor cross-examined TS without limitation, such cross-examination consisting largely of the prosecutor reading substantial slabs of RZ’s and GZ’s evidence to TS and asking her whether what was described in the evidence had occurred. Often, several different aspects were bound up in the evidence that the prosecutor put to TS, and, for that reason alone, should have provoked objection by defence counsel. None was, however, forthcoming.
It is important to note, however, that the prosecutor’s cross-examination of TS proceeded in the manner that it did with the express approval of defence counsel. Thus, early in TS’s cross-examination, there was the following exchange between the prosecutor and TS:
Now, [TS], as to the events of the Thursday night – the papercut night[21] – [RZ] and [GZ] give a version of what they say took place on that night. Do you follow?---Yeah.
And that account of what took place is different to what you said. Do you follow?---Yep.
So, what I am going to do is to tell you what they said, and to ask you whether or not you agree or disagree as to whether or not that account is truthful and accurate?---Okay.
[21]See [13]–[14] above.
This exchange having occurred, defence counsel asked to raise a matter in the jury’s absence. The jury left the court and the following discussion ensued:
HIS HONOUR: Yes, [defence counsel].
[DEFENCE COUNSEL]: Your Honour, I understand my friend has leave to cross-examine the witnesses.
HIS HONOUR: Yes, he does.
[DEFENCE COUNSEL]: And certainly, he can put the general propositions. I’m just wary of him reading out great slabs of transcript to the witness and asking her whether it’s true or false, Your Honour.
HIS HONOUR: What are you wary of? The reading of the slabs of transcript ---
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: --- or the expression of the opinion?
[PROSECUTOR]: Can I just assist? I was going to read passages from the transcript but then ask questions.
HIS HONOUR: All right, all right. Well, you’ve heard what Mr ---
[PROSECUTOR]: I’m not going to ask, ‘Is that correct, that passage that I’ve just read?’ I’m going to direct her attention to specific parts of that.
HIS HONOUR: Is it possible that – I know you may have given thought – is it possible that you can just put, as it were, or cite the bullet points of what is being said?
[PROSECUTOR]: Well, I good [scil, could], but that would be tactically bad, Your Honour, I think. And I think the witness is entitled ---
HIS HONOUR: All right. I’m just mindful we're dealing with – well, heaven forfend, I wouldn’t wish you to be drawn into being anything other than tactically perfectly correct. All right. Let’s see where we go. But [defence counsel], has he addressed your immediate concern?
[DEFENCE COUNSEL]: He’s addressed my immediate concerns.
Obviously, it is impractical to set out the cross-examination in detail, but the following passage of cross-examination — conducted not long after the discussion set out immediately above — sufficiently conveys its flavour:
Well, [RZ] has said that she woke her up. Is that true?---I don’t remember.
Excuse me, Your Honour. Now, [TS], I want to speak to you now about the Saturday night when you returned to the home of [the applicant], late, with … the stepmother of the girls?---Yep.
Now, the evidence of both [RZ] and [GZ] is that there were very violent acts that took place on that Saturday night. Do you follow?---Yeah.
Where [the applicant] was using a knife?---Okay.
You follow?---Yep.
Now, I first want to refer you to what [RZ] says about the events of that night. At [page 18], about halfway down, [RZ] is speaking about returning to [the applicant’s] home and entering into the flat. Do you follow?---Yep.
This is a short passage. And she said, ‘We went with her, and then we came back, yeah. He put the – like, my cousin was there with us. And he got angry, so he put the knife on my neck and said, “I’ll kill you”.’ So, [RZ] is saying – briefly, at this stage – that her father, who had a knife in his hand, put the knife to her neck and said, “I’ll kill you”, to [RZ]. Do you follow what’s being put?---Yep.
Did that take place?---I don’t remember. What I remember is that he was made [scil, mad] that we were really late that – um, when we were out with their stepmum. And when we came home, he was angry, and he was cutting meat. So, he was – like, he was like, “Where were you?” and stuff. But ---
Sorry?---He was saying, “Where were you?” Like, with the knife in his hand but that’s about it.
Well, [RZ] says, ‘So, he put a knife to my neck like my sister and my cousin were sitting right there.’ This is at [page 24], Your Honour ‘and he said, like because I’m the one who asked to go and he didn’t answer and then he said, “I’ll kill you” and like, he put it, like I could feel the blade on my neck but he didn’t, like, do anything but he said, “If you do one more time, if you go without permission, I will kill you” and then I like just nodded and like, he like, put the knife down and started screaming’. Did that take place?---I don’t remember.
It may be observed from the passage immediately above that the cross-examination was somewhat cumbersome. To a significant extent it consisted of the prosecutor reading slabs of transcript and asking TS whether she ‘followed’ what was being put. The cross-examiner also seemed to bundle up multiple aspects of RZ’s and GZ’s accounts into a single question seeking a single assent to all that was being put. None of this, however, provoked any objection from defence counsel.
From the bare transcript it is not easy to assess the effect that the cross-examination might have had on the jury. At a distance — and as a matter of impression — the cross-examination does not appear to have been particularly effective. True it is that TS conceded some matters in the prosecution’s favour, but she held firm on others. Allowing for the difficulty of assessing the atmosphere of the trial from the transcript, it does not appear to us that TS was overborne by the prosecutor, or overwhelmed by his cross-examination. Had the cross-examination been unfair in tone or in content, it might have been expected that the applicant’s counsel — who, it might be thought, was imbued with the pervading atmosphere — would, as was his duty, have objected. He did not do so.
Counsel for the applicant in this Court submitted that the cross-examination was ‘disastrous’ for the defence. We are unable to see that it was. As we have said, TS held firm on important matters where her evidence did not coincide with that of the complainants (including, for example, her apparent contradiction of RZ’s evidence that she, RZ, had complained to TS in the evening of Thursday, 15 October 2015). TS may have conceded some ground in favour of the prosecution, but that does not necessarily indicate that any such concession was unfairly elicited. Importantly, not only did counsel not object to what is now said to have been unfair cross-examination of TS, but he relied heavily on her evidence in his final address, submitting, for example, that TS ‘contradicts [the complainants] in important and salient ways’. In another part of his address to the jury, counsel said:
So what do we have with [TS]? We have a Crown witness, not a defence witness, who in many important respects contradicts the twins’ evidence. Important respects. Like what happens on the 17th [of October 2015], and the circumstances of the complaint. In important and salient ways, this girl who has lived with [RZ] and [GZ] since, and lived with them before making her VARE, gives evidence which punches a massive hole in the Crown case. And just remember, members of the jury, it’s the Crown bringing the case and trying to prove these girls are telling the truth. I’m not trying to prove they’re lying, I’m just pointing out the big problems they have. ‘Never seen him be violent’.
Finally, we cannot see — as ground 2(a) contends — that there was anything in the cross-examination of TS that should have led the judge to sever charges 1 to 5, 8 to 13, 15, and 19 to 21 from the indictment. Certainly, no application for severance was made by the applicant’s counsel.
Grounds 2(a), 3A, 3B, 3C and 3D cannot succeed.
The sentence application
We are not persuaded that any aspect of the sentence imposed — individual sentences; orders for cumulation; total effective sentence; or non-parole period — is manifestly excessive.
As we have mentioned, the applicant was convicted by the jury on 15 June 2018. Following a plea, on 31 October 2018 the judge sentenced the applicant in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1 Threat to inflict serious injury[22] Aggregate term of 9 months 3 months 2 Common assault[23] 4 Common assault 5 Incest[24] 5 years 2 years
3 months
7 Make threat to kill[25] 6 months 3 months 8 Common assault Aggregate term of 2 years 9 months 1 year
3 months9 Common assault 10 Common assault 11 Common assault 12 Common assault 13 Common assault 15 Common assault 17 Common assault 19 Common assault 20 Common assault 21 Threat to inflict serious injury 22 Indecent act with a child under 16[26] 9 months — 23 Incest[27] 5 years Base 24 Incest 5 years 1 year 25 Incest 5 years 1 year 26 Indecent act with a child under 16 9 months — 27 Incest 5 years 1 year 28 Common assault 6 months 3 months Total Effective Sentence: 12 years and 3 months imprisonment Non-Parole Period: 8 years and 4 months imprisonment Pre-Sentence detention: 139 days [22]Crimes Act 1958, s 21. The maximum penalty is five years’ imprisonment.
[23]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
[24]Crimes Act 1958, s 44(1). The maximum penalty is 25 years’ imprisonment.
[25]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[26]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.
[27]Pursuant to s 6F of the Sentencing Act 1991, the applicant fell to be sentenced as a serious sexual offender on charges 23–27.
Other relevant orders:
Forensic sample order[28]
Registration for life pursuant to s 34 of the Sex Offenders Registration Act 2004.[28]See Crimes Act 1958, s 464ZF.
In support of the contention that the sentence is manifestly excessive, counsel for the applicant submitted that insufficient weight was given to the applicant’s age — he was aged 35 to 40 years during the period of offending and is now aged 44 — and his lack of criminal history. Next, counsel submitted that, as the psychological evidence attested, the applicant does not pose a high risk of re-offending. Further, so it was submitted, taking into account the nature and extent of the offending; its frequency and duration; and the circumstances in which it occurred, the sentence imposed is out of step with current sentencing practices. Finally, it was submitted that the principle of totality was infringed. To try to make good that last contention, counsel submitted that cumulation of two years and three months of the sentence on charge 5 (incest), upon the base sentence (incest – charge 23); and cumulation amounting to a total of five years and three months of the sentences on charges 5, 24, 25 and 27 upon the base sentence;[29] ought to be viewed as manifestly excessive given the proximity and connection between all the sexual offences committed by the applicant.
[29]Counsel’s written submissions erroneously calculated the period of cumulation as five years and two months.
Counsel for the respondent submitted that the individual sentences; orders for cumulation; total effective sentence; and non-parole period, are all within the appropriate range. There was, it was submitted, little by way of mitigation. It was submitted that, common to an assessment of all aspects of the sentence is the fact that the applicant pleaded not guilty and thus was not entitled to any utilitarian benefit or benefit for remorse. The applicant could not claim to have had any insight into his offending because, even at the plea hearing, he maintained that he had not offended at all, so much bearing on the applicant’s prospects of rehabilitation. The victims were two young persons whom the applicant was duty bound to protect. They were at the applicant’s mercy. The treatment of his children in the manner described involved acts of violence over and above the violence already inherent in the serious sexual offending.
In the applicant’s favour, it might be accepted that his prospects of rehabilitation generally are positive; and that, apart from the offending which led to his conviction and sentence, he generally has been of good character.
As against that, the applicant’s offending occurred over a protracted period, and was attended by concerning violence. Self-evidently, he breached the trust of his daughters, who were entitled to look to him for protection. Moreover, although he is not to be punished for pleading not guilty, the sentence imposed upon the applicant does not attract the moderating influence of a plea of guilty; and remorse and insight are perspicuously absent. Finally, considerations of general deterrence, denunciation and just punishment all had to assume prominence in the exercise of the sentencing discretion, counsel for the applicant having accepted on the plea that, since the applicant fell to be sentenced on a number of charges as a serious sexual offender, protection of the community was a primary sentencing factor.
In light of the foregoing, the contention that the sentence is manifestly excessive cannot be accepted.
---
3
7
0