Lewers (a pseudonym) v The Queen (No 2)
[2021] VSCA 351
•13 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0028
| JASPER LEWERS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN (NO 2) | Respondent |
[1]To ensure that there is no possibility of identifying the alleged victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 November 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 351 |
| JUDGMENT APPEALED FROM: | DPP v Lewers (a pseudonym) (County Court of Victoria, Judge Higham, 31 October 2018) |
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CRIMINAL LAW – Appeal – Conviction – Application for leave to bring second appeal – Whether fresh and compelling evidence that should, in the interests of justice, be considered on appeal – Whether reliable evidence – Whether evidence may affect credibility of complainants’ account – Application refused – Criminal Procedure Act 2009 s 326A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Nicholas O’Donohue & Co |
| For the Respondent | Mr B Kissane QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA
NIALL JA:
Following a trial before Judge Higham and a jury, the applicant was convicted of a number of charges relating to offending against his twin daughters, GZ and RZ. The most serious charges were of incest. He was sentenced to a total effective sentence of 12 years and 3 months’ imprisonment. He sought leave to appeal his conviction. That application was refused.[2] He now applies under s 326A of the Criminal Procedure Act2009 (‘the CPA’) for leave to appeal a second time.
[2]Lewers (a pseudonym) v The Queen [2019] VSCA 272.
For the reasons that follow we would refuse the application.
Second and subsequent appeals
The power in this Court to grant leave to appeal for a second or subsequent appeal is available where the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.[3]
[3]CPA s 326C.
Section 326C of the CPA defines ‘fresh’ and ‘compelling’ in the following way:
…
(3) In this section, evidence relating to an offence of which a person is convicted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A) it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4) Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
In Roberts v The Queen,[4] this Court articulated the following propositions as being relevant to s 326C: [5]
[4](2020) 60 VR 431; [2020] VSCA 58 (‘Roberts’).
[5]Ibid 441–3 [44]–[51] (Osborn and T Forrest JJA and Taylor AJA) (citations omitted).
(a)the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3) of the CPA. It will not be sufficient for the purpose of leave under the Victorian statute to establish that it is reasonably arguable that the evidence has these qualities.
(b)the onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met. The Court must be positively persuaded that the preconditions to the exercise of its power to grant leave have been satisfied.
(c)the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings.[6]
(d)the jurisdiction under s 326C(1) of the CPA is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal.
(e)whilst the judgment required as to the interests of justice is an intermediate one, it may be informed by the potentially broad scope of the notion of substantial miscarriage of justice. The issue if leave is granted is not limited to consideration of evidentiary questions going to the ultimate issue of the applicant’s guilt but may embrace questions of irregularity in an applicant’s trial.
(f)the question whether a proposed ground of appeal is reasonably arguable may demonstrate that it is in the interests of justice that leave be granted.
[6]Ibid 441–2 [46] citing Van Beelen v The Queen (2017) 262 CLR 656; [2017] HCA 48.
In Roberts, this Court also stated:
The question is not whether a jury would inevitably acquit having regard to the fresh evidence, but whether it is of high probative value with respect to a central issue in the trial.[7]
[7](2020) 60 VR 431, 453 [90]; [2020] VSCA 58 (Osborn and T Forrest JJA and Taylor AJA).
The case at trial
The relevance and cogency of the fresh evidence on which the applicant now relies has to be assessed in the light of the evidence and issues in the trial in which he was convicted. The following account is taken from the reasons of the Court on the first application for leave to appeal.
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].
GZ: Charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20, 21, 22, 23, 25, 26, 27 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 onto 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.)
That summary is sufficient to highlight that the focus of the trial was whether the various incidents occurred and that this required the jury to accept, to the criminal standard, the accounts given by RZ and GZ. The reliability and credibility of the two complainants were critical to the prosecution case.
The proposed fresh evidence
The applicant relies on the following evidence as constituting fresh and compelling evidence:
(a)an affidavit of NS sworn 3 February 2020;
(b)two emails sent by GZ to her lawyer on 24 and 25 November 2015 (‘the emails’);
(c)a handwritten letter purporting to be signed by GZ and RZ and envelope addressed to the ‘Children’s Court’ (‘the letter’); and
(d)lies by GZ and RZ about the authorship of the letter.
NS affidavit
In her affidavit, NS deposes as follows:
I know [the applicant] and his daughters, [RZ and GZ] through [DB].
In 2015 [the applicant] separated from his partner, [TS]. At this time [the applicant] and his two daughters had nowhere to stay. [RZ and GZ] lived with me from approximately April 2015 until July 2015. During this time [the applicant] was looking for suitable accommodation for his daughters and him to live.
After [the applicant] was interviewed by Victoria Police in 2015, [RZ and GZ] came to live with me. They lived with me from 9 November 2015 until 17 July 2018.
In early 2016 I overheard [RZ and GZ] talking to each other. In this conversation they said that they had made up the story about their father to get away from him as he was too strict.
After I overheard this conversation I asked both [GZ and RZ] to speak to me. I sat them down in our home and asked them about the conversation I had overheard. I asked them whether they had made up the story about [the applicant]. They both told me that they had made up the story to get away from [the applicant] because he was too strict. I then told them that they should contact the Police to tell them that they had made up the story. They said that they could not do that as that would be bad for their future. They also said that they would get into trouble and go to juvenile if they told the Police that they had made up the story.
In the months after this conversation I saw [RZ and GZ] writing a letter to the Court. They wrote this letter in my home. Although I read the letter I cannot recall the exact contents of the letter however I recall that the letter said that they did not want their father to get into trouble. I also drove the girls to the Flemington Post Office and I witnessed them giving the letter to a staff member at the post office. I am not sure which Court the letter was sent to but I think it was the Melbourne Magistrates’ Court.
On 17 July 2018 child protection removed [RZ and GZ] from my care as I had told the child protection worker that the girls were both becoming difficult teenagers.
In March 2018 a Victoria Policewoman served me with a Subpoena to Give Evidence at [the applicant’s] trial. I said that I would go to Court to give evidence. The Victoria Policewoman then told me that I did not need to go to Court unless they contacted me. Victoria Police never contacted me. I have never given a witness statement to Victoria Police.
I did not tell anyone else about the conversation I had with [RZ and GZ] in 2016 until I told Mark Schofield in December 2019. The reason I have come forward is because I believe that there has been an injustice. The reason I did not come forward earlier is because I believed that [the applicant] would be found not guilty.[8]
[8]Errors in the transcription of NS’s affidavit or errors in the emails and the letter have, where quoted, not been corrected and are as in the original.
The emails
The emails were sent by GZ to Ann Wood, a lawyer who was acting for GZ at the time in Children’s Court proceedings. The first was sent on 24 November 2015. The subject of the email was ‘Court case’. The email read:
Hey Ann,
I have been trying to contact you for a long period of time now. I have been meaning to tell you that I want the case with my dad to be dropped and I have been thinking about this since the case started because I am still 12 yrs old and I want to focus on my study’s and live life with a peaceful mind.
[G] [two smiley face emojis]
The second email, sent at 6:20 pm the following day read:
I would like to add some words to my email from yesterday I have exaggerate some of the things I said in my case interview with the police.
[G] [two smiley face emojis]
The letter
The handwritten letter is dated 17 December 2015 and says:
Dear Madam/Sir,
We are here to tell you that we want to drop our case, we have tried communicating this by email and words to people and staff for a long period of time but the don’t help us.
We have no information on what is going on in our case at the moment.
PLEASE DROP OUR CASE !! [smiley face]
Kind regards
RZ
and
GZ
The envelope is a prepaid registered post envelope. The addressee is the ‘Children’s court’. The senders are stated as being RZ and GZ.
We note that in this Court, the applicant produced evidence of Mr Trevor Joyce, a forensic document examiner. Mr Joyce examined the envelope addressed to the Children’s Court and the letter. He concluded that it was probable that RZ was the writer of both the letter and envelope. The respondent’s forensic scientist, Mr David James Black, opined that the evidence provides qualified support for the proposition that the handwritten entries on the letter and envelope were written by RZ.
The evidence of GZ in this Court
As noted, the applicant also seeks to rely on the evidence given by GZ and RZ in this Court which he says is untruthful and makes any conviction based on their evidence suspect.
In response to the allegations made by NS, GZ provided a statement to police on 16 October 2020. In that statement, GZ described NS as a close family friend and said that she had previously been the guardian of GZ and RZ. GZ and RZ lived with NS from 2015 to 2018.
GZ denied the conversation in which she and RZ said that they had made up the allegations against their father as described by NS in her affidavit and said that NS’s account was ‘a flat out lie’. She said that when they came to live with NS in 2015, NS and their step-mother had constantly sought to persuade her to withdraw the allegations and to tell the police that she had lied to them. She said that at the time of the trial NS had told her ‘don’t be evil, don’t send your dad to gaol’.
GZ said that throughout the trial she had told her lawyer that she did not want her father to go to gaol. Her statement continued:
Police have also told me that [NS] claimed, [RZ] and I wrote a letter to the court.
I have never posted a letter in relation to the matter with my dad, if we had to send things it was all done by email. Except for the victim statement that I have ever had to send about the matter and that was in 2018 and I wasn’t even living with [NS] then.
What did happen in maybe 2016 was when [NS] and our step-mother kept hassling us and telling us we needed to stop making all of this stuff happen and to stop getting our dad into trouble. They kept trying to bribe us by saying they would buy us things if we would say that we lied – so I wrote an email.
During this time [NS] and [TS] would make me feel like such a bad person and made us feel evil and made me believe that God wouldn’t forgive me – they would say the same things to [RZ].
So, after making me cry everyday and making me believe that I was evil for getting my dad in trouble and promising that they would buy me a new phone, I agreed that I would write an email to my lawyer to try and stop my dad from getting in trouble.
GZ produced to police the emails which she said she had recovered from her email account. She said the emails were not received by her solicitor because she had used the wrong email address.
GZ denied going to the post office to send the letter and said that the only kind of letter she had written was the emails in 2015.
In a second statement given on 16 June 2021, GZ said that she had not written the letter and was confused about who had written it. She said she did not think it was NS, who could barely speak English. She said the handwriting could have been her step-mother’s.
She said the signature of GZ at the bottom of the letter did not look like her handwriting. She said she did not remember someone putting a letter in front of her to sign, that she would remember it, and that it did not happen.
In her oral evidence, GZ said that the person to whom she sent the emails was Ann Wood, who was acting for her in a protection application in the Children’s Court. She said that she had sent the emails because ‘her auntie’ had told her she was breaking up the family and she felt bad. The reference to her ‘auntie’ was to NS.
GZ said she sent the second email because her auntie had said the first email was not enough, they were not going to drop the matter just because she wanted it dropped, and that she would need to say that she had exaggerated her account.
She said that she had never seen the envelope before and that she did not think the letter was in her sister’s handwriting, although she considered that the handwriting seemed familiar to her. As to the signature of GZ at the bottom of the letter, GZ accepted that it looked like her handwriting, adding that ‘it looks very similar to my handwriting, so yes, it could be.’
She said she remembered sending the emails but had no memory of the letter.
The evidence of RZ in this Court
RZ also provided a statement to police on 16 October 2020. In her statement, RZ said that she had never made up a story to get away from her father and that she had told the police the truth about what her father had done to her.
She said that NS had told her and GZ on several occasions between 2015 and 2018 that making the allegations against their father was evil and that they should not do it to the family. She said that NS had spent many hours lecturing her about how her father would go to gaol and that she and GZ were bad people for speaking out against her family.
She denied having a conversation with GZ about making up the allegations and said that what she had told the police about her father was true.
She said that NS and her step-mother had sat her down and told her to write a letter withdrawing the allegations against her father. She said that they told her what to say in Amharic, which RZ then translated and wrote on a piece of lined paper with scribbles on it. She said that she then transcribed the letter onto an email using her iPad. She said that she had never posted a letter and never went to the post office with NS.
In a further written statement made to police on 16 June 2021, RZ said that she and GZ had tried to send one email but they had made an error in the email address so it was not sent. She said she only sent the email because her step-mother had told her she would get a mobile phone if she sent it. She said she never sent a letter. When shown the letter, RZ said she felt confused looking at it and did not remember it at all. She said that she had written a message on lined paper but when shown the letter said that ‘[n]ow that [I] look at it more I’m sure it’s not my handwriting.’ She said that ‘the writing kind of looks like my writing. It all kind of looks like my writing except for my sister’s name at the bottom.’ She said her step-mother would always tell her to drop the case. She said that when she turned over the ‘Australia Post letter, I knew that it was not my handwriting. At least I don’t think it is.’
When asked in cross examination as to whether it was her handwriting on the letter, RZ responded by saying that she was ‘not 100 percent sure but I don’t know.’ She accepted that it looked like her handwriting. Asked directly whether it was her handwriting, RZ said that she did not know.
She said she did not remember writing on the envelope. Asked repeatedly whether it was her handwriting on the letter and envelope, and whether she had purchased a registered post envelope, she said that she did not remember. She maintained that she did not know whose writing it was.
Other evidence
In her affidavit sworn on 29 July 2021, Detective Leading Senior Constable Mason (‘DLS Mason’), who was the informant in respect of the charges, deposed that during the investigation of the criminal charges she spoke with NS on 14 occasions with the assistance of an Amharic interpreter. Two in person meetings were held.
Between 3 June 2018 and 15 February 2020, NS visited the applicant in prison on 37 occasions.
Between 15 June 2018 and 21 February 2020, the applicant made 432 phone calls from prison.
Arunta calls
DLS Mason exhibited transcripts of a series of recorded telephone conversations from prison between the applicant and other people which have been translated from the Amharic language into English. There was no objection to the admission of this evidence. The respondent submitted that these recordings show the applicant arranging with NS and her husband to prepare a statement by NS saying that the two complainants had lied to police.
The transcript describes the calls as being between the applicant and various individuals, including TB, who is the husband of NS. In some of the calls the applicant speaks to a female, who the respondent allege was NS. In her evidence in this Court, NS did not accept that she had participated in the calls, saying she could not remember or did not know whether she had done so. The respondent also said that other recorded conversations were with TY and EM.
The calls took place on various days between 7 November 2019 and 20 March 2020. We note that the evidence shows that NS went to the solicitor for the applicant (Mark Schofield) and told him about the conversation she says she overheard in December 2019
In one call, recorded on Wednesday, 11 December 2019, the applicant tells TB that he had just been talking with his lawyer and that ‘we are going to try to do some things again’, and arranges for TB to visit the prison on the following Saturday. Prison records show that TB and NS visited the applicant in prison on Saturday, 14 December 2019.
Also on 11 December 2019, the applicant spoke with TY by telephone. The transcript records the following exchange:
Applicant: No. No. No worries. I was with the lawyer today.
TY: Okay.
Applicant: They are saying that there is a good point of argument, but we need somebody.
TY: What do you need the somebody for?
Applicant: Somebody who can speak at once. They are saying somebody who can say I hear them when they were lying or something like that.
TY: So do you have shortage of such people?
Applicant: Somebody active and with a certain profile is preferable.
TY: Now what does this mean? If what you are looking for is someone who can speak, then we can assign your preferred person to do the task.
Applicant: I would have liked it if it were you.
…
Applicant: Okay. Yes, I understand. Basically, what he is saying [is] that, my point is there are many people who overheard them lying and he is saying that one is enough and he doesn’t need many. But that one person must have a certain kind of profile. That is basically what it is.
TY: The thing is it has to be someone who overheard them talking.
Applicant: Yes. Number one is this. Number two, they had a quarrel at the end and they were leaving home. You came as a mediator, because of the problem between the kids and the witness.
TY: Okay.
Applicant:It was then that they threw those words, the words that you overheard.
TY: Okay.
Applicant: If it could be like that.
On 12 December 2019, the applicant again spoke with TY by telephone. This call occurred shortly after this Court had refused the applicant leave to appeal his conviction. After referring to the appeal, the conversation continued:
Applicant: This is the basis of the argument. Now all the legal documents indicate that [this] was false. It turned out like this because the jury believed them. This is what he is saying. Therefore, the jury’s belief and the basis of this belief should be challenged. But instead of the challenge being only on the legal process, his point is, we have more chance of success if we say the kids are lying. Do you understand? It is really hard to prove fallacy in other things, because you are attacking the legal system.
TY: Okay.
Applicant: So, what is the easiest way? Everyone knows that right from the very beginning the trial was not correct but what they want is by claiming that the children lied, the responsibility would come to it. Rather than falling on them and the system, it would fall on the children. But this would do nothing to the children, but will set me free. This is the argument. This is the whole idea.
TY: Okay.
Applicant: It is because it is hard to fight against the system...
On 14 December, the applicant spoke to EM by telephone. During the call the following exchange occurred:
Applicant: Mark [the applicant’s solicitor] would like us to find a person. He would like to write some things, two, three, lines and would like us to get him one person and I have found one. What you are going to do for me is give Mark a call and tell him you have got someone that you would like to bring and [ask] when he would be available. I mean if you could make a plan with him because he said he would be happy if they come with you...
EM: When… Monday? Monday is only if I can. I am going on leave on Tuesday.
Applicant: Yes. Ow, if that’s the case then if you could talk to him as soon as possible. He said they could call me even at night or on the weekend. He is saying he does not mind. If you give him a call or send him a text as soon as you finish with me. After that you call [NS], I mean [NS] is the one who goes with you.
EM: Okay.
Applicant: So, if you could fix this one first. The second is… because she knows the whole family for a long period of time, if he could just write what he needs and give it to her. Then you guys read it and if you both agree on it, then she can sign it. No more details are needed.
EM: Okay. What is the concept, in general? We may…
Applicant: The concept…
EM: I mean you can tell me in Amharic…
Applicant: … the fact that they lied…
EM: … he already told me about that one.
Applicant: Yes, he did. He told me he sent you an email.
About 10 minutes later, the applicant spoke by telephone on a line which the respondent said belonged to TB. In that call, the applicant spoke to a female. The applicant told the female that he had just spoken to EM who was going to call the solicitor and then call her.
On 16 December, the applicant and TB spoke by telephone:
Applicant: Any news? The (sic) didn’t call her?
TB: She went. She got it done and came back.
Applicant: Really?
TB: Yes. In fact it is early... it was arranged for 11 but they said 10. She agreed again and went to Mr [E] and managed to finish things. She said it was a good time.
Applicant: Very good. It is exciting.
On 2 February 2020, in another call between the applicant and TB’s phone, the applicant again spoke to a female. The following exchange was recorded:
Applicant:... Now the main thing is, his intention is to say that ‘there is new evidence’; and so to avoid the question of where were you when the case was finalised. I would say all this for them ...
Female: Yes. But I thought they themselves, because I am there... because we are free to say anything, they will look at it and find/fix it after. But…
Applicant: The biggest thing, the main one is this one. This one is very important. Because giving you a letter and not calling/summoning you, if they use this as evidence, learning that they deliberately did this is not simple.
Female: Okay. That one I will say.
Applicant: Yes...
Female: I will say that. That’s all.
Applicant: Eh... Okay. Because it is ‘this is new’. The main thing is ‘this is new’. On top of that, you say, ‘when I was sitting there listening to the appeal, all what happened there was beyond what I have heard’.
Female: Yes.
Applicant: I mean at the appeal, at the last one.
Female: Yes.
Applicant: That’s when...
Female: Yes, this one... Now if they say ‘why you said this’, I will say that my conscience couldn’t bear it...
Applicant: They sent me a [summons]... while they gave time to others they did not give me anything. This is a big crime. Even from their perspective, this is something that should not be done.
Female: Yes, now... I am thinking about the ticket.
Applicant: Yes. That is good. Okay…
Female: I thought he would investigate and find out the thing… I thought the process was similar to our country...
Applicant: Well done.
Female: But out of nothing when he says something to people, I could not bear it. My conscience rebuked me...
This conversation took place the day before NS swore her affidavit.
NS’s evidence in this Court
In her evidence before this Court, NS reiterated her written account that, in early 2016, she had heard RZ and GZ say that they had made up the story about their father because he was too strict. NS said she did not tell anyone about this until she told the applicant’s lawyer in December 2019. She said she did not tell anyone before then as she did not think the applicant would be convicted and that when she did tell the applicant’s lawyer she did so because she felt an injustice had been done.
NS denied that the applicant had told her to go and see his lawyer and say that she overheard RZ and GZ saying that they were lying. She said she did not talk to the applicant about what she was going to tell his lawyer but did tell him that she intended to go and see his lawyer. She said that she voluntarily went to see the applicant’s lawyer ‘so that justice will know the truth.’
The respondent referred to the phone call noted above, where the applicant spoke to TB and a female on 2 February 2020. NS said she did not remember if she spoke to the applicant that day. When the contents of the phone call were put to her, she maintained that she did not remember the conversation. She did accept that if the applicant and her husband had a phone call and she was at home, she would often speak to the applicant.
Submissions
The applicant submitted that the emails and the letter were fresh and compelling evidence. The applicant submitted that this evidence was compelling in the context of the lies that were told by RZ and GZ in relation to the letter and envelope. He further submitted that the evidence of NS was ‘reliable, substantial, highly probative… and would have substantially weakened the prosecution case if it had been presented at trial.’
The applicant submitted that NS’s evidence was corroborated by the letter being found, particularly in circumstances where GZ and RZ had initially denied writing the letter and subsequently, when shown the letter, denied that it was their handwriting. The applicant said that when looking at whether the evidence was compelling, one had to compare it with the other evidence. That is, the evidence of NS had to be compared to that of GZ and RZ.
The respondent submitted that the evidence of NS was simply not credible. This submission was made on the basis of the sequence of events, including the fact that NS waited over three years to come forward and reveal the contents of the conversation she overheard and her subsequent discussion with RZ and GZ. Further, the respondent said there would be no reason for RZ and GZ to sit down and have the conversation as described by NS as they would have already made their complaints to the police.
The respondent said that if this Court was not satisfied that NS’s evidence was compelling, that left the emails and the letter. It submitted that whilst the documents could be used in cross-examination, they were not compelling evidence. Further, it was noted that the letter and the emails had to be seen in the context of GZ and RZ being pressured by NS and their step-mother. The respondent submitted that the items of new evidence individually were not compelling and that, taken together, they were even less compelling.
Consideration
In this application, the onus is on the applicant to satisfy the Court that the proposed new evidence is reliable, meaning that it is credible and provides a trustworthy basis for fact-finding.
In dealing with the proposed new evidence, it is convenient to start with the evidence of NS before turning to the emails and the letter, which must also be considered in light of the subsequent statements and evidence of GZ and RZ. Of course, it is necessary to consider the evidence as a whole. In considering whether this Court should accept NS’s account of the alleged conversation, it is necessary to take into account that GZ and RZ denied that the conversation occurred. Equally, in considering the evidence of GZ and RZ, it is necessary to take into account their denials that RZ had written the letter and the impact their subsequent evidence has on their overall credibility and reliability.
Before returning to the evidence on which the application is based, it is convenient to note some steps in the chronology of events.
The offending for which the applicant was convicted spanned the period between 2010 and October 2015. Two days after the last assault, on 19 October 2015, GZ disclosed to her school 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’).
Protection applications were made in the Children’s Court in late 2015. By that time the sisters had spoken to police and participated in a VARE. RZ and GZ were each separately represented by legal practitioners.
After the allegations against the applicant came to light, GZ and RZ went to live with NS on 9 November 2015 and stayed there until July 2018.
The applicant was charged with the criminal offences in late 2016. The trial was conducted in May and June 2018. He was found guilty on 15 June 2018, a plea in mitigation of sentence was held in August, and he was sentenced on 31 October 2018. This Court heard the first application for leave to appeal on 11 November 2019, and the application was dismissed on 21 November 2019. NS swore her affidavit on 3 February 2020.
The evidence of NS
We start with the evidence of NS that, in early 2016, she overheard RZ and GZ say to each other that they had made up the story about their father to get away from him. The respondent accepted that NS’s evidence was fresh as defined within s 323C(3)(a) of the CPA. The question for this Court is whether the evidence is compelling.
In our view, NS’s evidence is entirely implausible. First, the conversation is said to have occurred in early 2016. That is well before the applicant was charged. It is improbable that NS, who is a close family friend of the applicant and who visited him in gaol on many occasions, would not say anything about the conversation during the investigation process, the trial, conviction and sentence, and the first appeal. DSC Mason deposed to having a number of conversations with NS and we are satisfied that NS had ample opportunity to bring forward the evidence and had no reason to withhold it.
Second, the content of the conversation is implausible. Her account is vague carrying no detail beyond saying that the two complainants had made up a story about their father. The conversation is said to have taken place after RZ and GZ had made their complaints to police. If they had already made their statements there would be no reason for the two girls to in effect confess to each other that they had made up a story to get away from their father.
Third, having regard to the transcripts of the telephone conversations and the surrounding context, we are satisfied that the female person the applicant spoke to on 2 February 2020 was NS. Although the evidence establishing the identity of the female participant in the recorded telephone calls could have been better, we are satisfied that it was NS on each of the relevant calls. We do not accept her evidence that the first person she discussed the alleged conversation with was the applicant’s solicitor and that she had only mentioned to the applicant that she had wanted to speak to his solicitor without discussing the content of what she would say.
There are a number of calls to the phone of TB in which the voice of a female person was recorded. NS and her husband visited the applicant on 14 December 2019. In her evidence in this Court, NS said that her husband and the applicant were best friends and that when the applicant would ring her husband she would also speak to the applicant if she was present. In some of the calls NS is referred to by name.[9] The content of the relevant conversations are consistent, both in time and in content, with NS being the female participant. For example in the call of 2 February 2020, which as noted was the day before NS swore her affidavit, the applicant and the female participant are recorded rehearsing the explanation that would be given for not bringing forward the evidence on an earlier occasion. The female volunteered that she would say she had come forward because her conscience could not bear it and agreed with the applicant that she would say that the police had not called or summoned her to give evidence. Such suggestions bear a strong similarity to the contents of NS’s affidavit.
[9]Eg, 7 December 2019 and 22 December 2019.
It emerges clearly from the transcripts that the applicant had discussed trying to find someone to give evidence to say the complainants had lied to police. The applicant identified NS as being willing and suitable for the task. It would be extremely improbable that NS would, coincidently and independently, come forward three years after the conversation, with the allegation that she had overheard the complainants saying that they had made up the story at the same time as the applicant was attempting to procure a witness to say much the same thing.
It is true that in her affidavit NS referred to the complainants writing a letter to the Court in relation to the allegations before the letter had been recovered from the Children’s Court. However, there is nothing in the letter that corroborates NS’s account of a conversation sometime in 2016.
It is convenient at this point to turn to the emails and the letter.
The emails and the letter
It is not in dispute that GZ attempted to send the emails to her solicitor asking that the ‘case’ be dropped and we are satisfied that she attempted to do so. We are also satisfied that RZ wrote the letter to the Children’s Court and that both RZ and GZ signed it.
We accept that both documents are fresh evidence. While there was some suggestion in the evidence that the applicant knew about the letter before his trial,[10] we proceed on the basis that the evidence is fresh. The issue then is whether the emails and the letter are compelling evidence that the allegations made by the complainants against the applicant were untrue.
[10]Exhibit Bundle BJB of the affidavit of Belinda Barby of 4 November 2021. The bundle contains a letter sent by the applicant to the Children’s Court in which he refers to his daughters mailing letters to the magistrate.
We are not satisfied that the letter and the emails are of high probative value in respect of the central issues in the trial. It is significant that neither the letter nor the emails recant the allegations. The reference to dropping a case must be a reference to the protection application in the Children’s Court. The applicant was not charged with the criminal offences until a year later. Although by this time GZ and RZ had made allegations of criminal wrongdoing against their father, the expressed wish to withdraw the proceedings does not amount to a withdrawal of the allegations.
Even in those cases where a central witness recants allegations after a conviction, the courts have been cautious in accepting such evidence. Winneke P explained it this way in AHK v The Queen:[11]
In this case the ‘fresh evidence’ which the Court is asked to accept and rely upon is of a different character from that which an appellate court is commonly asked to consider; namely evidence from a witness not available at trial whose evidence is apparently relevant, plausible and cogent and which, if available to the jury in the context of the other evidence which they had before them, might reasonably have led them to a different result or, put another way, leads an appellate court to the view that there is a distinct possibility that the jury would have acquitted if such evidence had been available. The evidence with which this Court is confronted is evidence of a different kind; namely evidence of a recantation by the Crown’s principal witness of significant parts of the evidence which she gave at the trial. Although evidence of this sort has been treated by the courts as a species of fresh evidence, the courts have treated it as ‘fresh evidence’ in respect of which the ordinary tests cannot be applied without qualification. The reasons, enunciated by the courts, for the qualification are clear. If appellate courts were to act without extreme caution upon a declaration by a witness that he has committed perjury at trial ‘the whole administration of both civil and criminal justice would be undermined’. Furthermore, the fact that a witness, following the trial, has given a new version of events might show that he or she is ‘now unreliable’ but ‘it is a fallacy to assume from this that he (or she) was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons’. However, as the courts have been at pains to point out, every case must depend upon its own facts but much depends upon the reason or reasons assigned by the witness for having recanted his or her testimony. Much also depends upon the significance of the witness’s evidence given at trial and whether the other evidence, not impugned, supported the conviction.[12]
[11][2001] VSCA 220.
[12]Ibid [9] (citations omitted).
The strong note of caution expressed by Winneke P in that case must be applied here. At the time they wrote the emails and the letter, GZ and RZ were young, they had made serious allegations against their father, and they would likely have been very uncertain and concerned about what would happen. A desire to withdraw the case then in the Children’s Court would not be surprising. Both NS and the girls’ step-mother had a strong motive, based on their close association with the applicant, to place pressure on the girls to withdraw the allegations. The letter and the emails provide little or no reason to suspect the allegations were untrue.
Perhaps recognising the limited use that he could gain from the documents themselves, the applicant fastened on what he contended were the lies by each of GZ and RZ concerning the authorship of the letter and envelope. On this point the applicant is on slightly firmer ground.
The applicant also relied on the admission of GZ in the email dated 25 November 2015, that she exaggerated some of the things she said in her case interview with police. No evidence was put before this Court as to the nature of the exaggerations and no foundation was established for the proposition that the exaggerations pertained to the sexual offending.
We found RZ’s evidence in this Court that she could not remember writing the letter impossible to accept. Her repeated assertions that she could not remember were little more than obfuscation. We do not accept that part of her evidence. We are satisfied that RZ did author the letter and that both RZ and GZ signed the letter.
That said, neither the fact that RZ and GZ authored the letter and the emails, nor their false denials, constitute compelling evidence that would undermine the verdict. Our rejection of their evidence goes to their credit as witnesses. It does not follow that their evidence as to the offending should not be accepted.
Of course, had the letter and the emails been available at trial GZ and RZ could have been cross examined on them. On the assumption that the two of them gave the same evidence as they did in this Court and the jury took the same view of their evidence, the jury could have used what they found to be false denials in their assessment of the credibility and reliability of their evidence. But cross examination on the letter was not without serious forensic risk. As already noted, the letter and the emails do not recant the allegations and accepting that the two sisters had been responsible for them did not mean that the jury could not accept that the offending occurred. It would also open up the reason why the letter and the emails were sent.
In that respect, the evidence of both RZ and GZ that NS and their step-mother pressured them to withdraw their allegations against their father and oversaw them writing the letter was persuasive and carried a real sting. It is consistent with NS having knowledge of the letter and NS’s ongoing attempts to assist the applicant.
The letter and emails do not contradict the allegations at trial. The false denials about the authorship of the letter, if available at trial, might have provided an avenue of attack on the complainants. However, the evidence is not highly probative of the issues at trial and in our view is easily explained. The fresh evidence, including the false denials, does not show that the offending could not have occurred as alleged or did not occur. It falls a long way short of compelling evidence.
Our rejection of the evidence concerning the authorship of the letter does not cause us to believe the evidence of NS about the alleged conversation. The rejection of the evidence of RZ and GZ does not provide positive evidence that the conversation occurred. For the reasons already given, we are unable to accept the evidence of NS. Our concerns about the evidence of RZ and GZ do not rehabilitate the improbable evidence of NS.
In considering the totality of the fresh evidence, we do not accept, either individually or in combination, that the fresh evidence is compelling. The evidence does not cast a shadow over the conviction.
The application under s 326A of the CPA should be refused.
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