Lucas Gentry (a Pseudonym) v The Queen
[2016] VSCA 54
•23 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0055
| LUCAS GENTRY (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | MAXWELL P, SANTAMARIA JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2015 |
| DATE OF JUDGMENT: | 23 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 54 |
| JUDGMENT APPEALED FROM: | DPP v [Gentry] (Unreported, County Court of Victoria, Judge Quin, 22 September 2014 (date of conviction), 19 November 2014 (date of sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Tendency evidence – Corroboration – Alibi evidence – Whether fresh evidence – Whether miscarriage of justice – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce SC with Mr P J Smallwood | Slades & Parsons Solicitors |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
SANTAMARIA JA
BEALE AJA:
Summary
The appellant (‘G’) was charged with six sexual offences against the complainant (‘R’). He was convicted of only one charge (‘Charge 6’): sexual penetration of a child under 16. R, who was a schoolgirl, had given evidence that the offence had taken place when she was at home, on a ‘curriculum day’.
The relevant charge was a ‘between dates’ charge. Evidence was led that 11 June 2010 had been a curriculum day at R’s school. G’s principal contention on the appeal was that the significance of that date had not been made clear to him until after he had been sentenced. Thereafter, his wife was able to gather evidence of alibi on that date. The sole ground of appeal in his written case involved that ‘fresh evidence’.
For reasons which follow, we have concluded that this was not ‘fresh evidence’. The defence were alive to the issue of alibi from the time G was interviewed by police. Trial counsel was given detailed written instructions as to G’s whereabouts at all relevant times. The information relating to 11 June 2010 which is now relied on was available at the time of the trial and could have been obtained without difficulty.
Nor do we consider that the failure to adduce the evidence at the trial caused a miscarriage of justice. First, trial counsel has stated on affidavit that her instructions were inconsistent with the alibi. Secondly, the alibi evidence was equivocal. Thirdly, as will appear, the direct evidence which R gave of the events giving rise to Charge 6 was independently corroborated by the discovery, in her wardrobe, of the pair of underpants which she said G had given her on that occasion.
When the significance of that piece of evidence became apparent in the course of argument on the appeal, counsel for G (who did not appear at the trial) foreshadowed an application for leave to add additional grounds of appeal, challenging the use of that evidence in support of the Crown case on Charge 6. An application for leave to add two grounds was subsequently made.
We would grant leave to G to amend the notice of appeal to include the additional grounds, but would refuse leave to appeal on those grounds. As we have indicated, the evidence of the discovery of the underpants was properly admissible as corroborative of R’s evidence that G had committed the offence the subject of the charge. There was no error in the use of the evidence for that purpose. The judge’s directions were, if anything, unduly favourable to the defence.
Accordingly, the appeal must be dismissed.
Appeal against conviction
The application for leave to appeal against conviction contained only one ground, as follows:
Fresh evidence has become available since the Applicant’s conviction, that gives rise to a significant possibility that the jury might have acquitted the applicant if the evidence had been available, such that there has been a substantial miscarriage of justice.
The grant of leave to appeal was, accordingly, confined to that ground. As noted earlier, G now seeks leave to appeal on two additional grounds of appeal, formulated as follows:
Ground 2:
The learned trial judge erred in admitting into evidence as a circumstantial fact in proof of Charge 6 evidence of the finding at [R’s] residence of pink frilly underwear upon which DNA from [G’s] spermatozoa was located (‘the impugned evidence’).
Ground 3:
The learned trial judge erred in her directions to the jury concerning the use that the jury might make of the impugned evidence as circumstantial evidence rather than tendency evidence in proof of Charge 6.
Charge 6: overview of prosecution case[2]
[2]These circumstances are drawn from Reasons for Sentence, DPP v [Gentry] (County Court of Victoria, Judge Quin, 19 November 2014) (‘Reasons’), the Applicant’s Revised Written Case and Respondent’s Written Case in Response.
G met R through his wife’s brother, whose partner was R’s mother. That couple had three children (R and two others). Each child was known to G. R referred to G as ‘Uncle [Lucas]’.
The offending was alleged to have taken place on an occasion between 1 May 2010 and 10 August 2010. At the time of the offending, G was 28 and R was 13.
On this occasion, R was home alone from school. In her first VARE,[3] she described the day as a ‘curriculum day’. She heard tapping on the window. R went outside and, when she re-entered the house, she saw G in the kitchen. G told R he had brought her something and revealed a pair of rose pink frilly underpants. G told R to try the underpants on in her bedroom. He followed R into her bedroom and told her that he liked the underpants but that she looked better without them on.
[3]Section 367 of the Criminal Procedure Act 2009 permits a child or a cognitively impaired witness to give their evidence in the form of an audio or audio visual recording. ‘VARE’ is an acronym for ‘Video and Audio Recorded Evidence’. The procedure is described in Martin v The Queen [2013] VSCA 377.
G removed the underpants, kissed R, picked her up and laid her on the bed. G took off his pants, lay on top of R and penetrated her vagina with his penis. G went to the bathroom and, when he returned to the bedroom, suggested that R should have a shower. R went and had a shower and when she returned to her bedroom, G had left the house.
R placed the pink frilly underwear in her wardrobe, in order to avoid its being discovered by her mother. Some time later that year, R’s mother was searching the wardrobe and discovered a bag containing four pairs of underwear, including the pink frilly underpants given to R by G. Following this discovery, R’s mother asked her about the underwear. R said that G had given it to her. R then disclosed the offending to her mother. Forensic examination of the underwear revealed traces of DNA from both G and R.
Offence as charged
Charge 6 was expressed in the following terms:
CHARGE 6 The Director of Public Prosecutions charges that [LUCAS GENTRY] at Hampton Park in Victoria, between the 1st day of May 2010 and the 10th day of August 2010, took part in an act of sexual penetration with [R], a child under the age 16 years, in that he introduced his penis into the vagina of [R].
As mentioned earlier, this was a ‘between dates’ charge. The prosecution was not obliged to prove that the offence occurred on any particular day. In particular, there was no obligation to prove that it occurred on a ‘curriculum day’.
Notice of intention to rely on tendency evidence
By a notice under s 97 of the Evidence Act 2008, the Crown indicated its intention to adduce at trial tendency evidence in relation to the central fact in issue relating to each charge. The tendency sought to be proved was the tendency of G:
·to act in a particular way towards R (including to engage in sexual conduct with her and to take advantage of his access to her through their de facto familial relationship); and
·to have a particular state of mind, namely to have a sexual interest in R.
Notice of intention to call additional evidence[4]
[4]Criminal Procedure Act 2009 s 188.
On 4 August 2014, the first day of the trial, the Crown served a notice of its intention to call additional evidence, attaching a statement prepared by ‘LJ’. LJ was a Students Records and Attendance Officer at the school R had been attending at the time of the offending. On 4 August 2014, LJ had made a statement dealing with R’s attendance record.
In her statement, LJ said that she had been asked ‘to confirm whether or not there was a Curriculum Day in the month of June or July 2010 that was not indicated in Reports I had provided’.[5] The statement indicated that Friday, 11 June 2010 was a curriculum day. In her statement LJ said:
I … looked specifically at the period between June and July and I found that there were no classes generated on Friday the 11th of June 2010 for any students. This Friday would have preceded the Queen’s Birthday on Monday the 14th of June long weekend that year.[6]
…
From the enquiries that I have made, I believe the reason why there was no Curriculum Day indicated on the initial attendance report that I provided for the period 1-Feb-2010 to 22-Dec-2010, is due to the fact that there was no reason to record an absence for the 11th of June 2010, as there were no scheduled classes that day at school.
[5]See [34] below.
[6]LJ had consulted the IT Department who were able to assist her in accessing archived records.
Commencement of the trial and the interlocutory appeal
That same day, G was arraigned and his trial commenced in the County Court before Judge Quin. The first two days of the trial were taken up with arguments in relation to the admissibility of the DNA evidence and the tendency evidence.
The Crown submitted that each charged act of sexual misconduct, along with each uncharged act (the giving of underwear to try on, and the giving of adult underwear on four or five occasions and asking R to try them on) would, once established, show that G had the tendencies in question. G contended that the Crown could not establish how his semen came to be on the underwear and, further, that R had not given a consistent account as to the circumstances in which G came to give her each item of underwear. The DNA evidence was therefore said to be irrelevant and inadmissible. Alternatively, it was said, the danger of unfair prejudice was such that the judge should exclude the evidence, as required by s 101 of the Evidence Act 2008.
On 8 August 2014, the trial judge ruled in the prosecution’s favour on the admissibility of the evidence. The trial judge certified, pursuant to s 295(3) of the Criminal Procedure Act 2009, that if the evidence the subject of the interlocutory decision were ruled inadmissible, the prosecution’s case would be ‘substantially weakened’.
On 2 September 2014, this Court refused leave to appeal against the interlocutory decision.[7] Redlich JA (with whom Tate and Priest JJA agreed) said:
The absence of evidence from [R] as to how the seminal stains came to be on the underwear does not render the DNA evidence irrelevant. It may be that in cross-examination or by other evidence adduced, some innocent explanation for the presence of that DNA may emerge. But the seminal DNA evidence may, depending upon the state of the evidence, permit an inference that the underwear was at some point in the applicant’s possession or that he engaged in penile sexual activity with [R] at or about the time she wore that underwear, or at a time when the underwear was proximate to the applicant and R at the time of or shortly after the act of intercourse. There may be direct evidence which the jury could accept that particular items of underwear were used at the time of a charged act. The discovery of the underwear in [R’s] wardrobe would support reasoning that the applicant is implicated in sexual activity with [R]. The potential cogency of such circumstantial reasoning is not diminished because the DNA evidence does not establish that the semen was necessarily placed there during a charge[d] or uncharged sexual activity between the applicant and [R].[8]
[7]Gentry (a pseudonym) v DPP [2014] VSCA 211.
[8]Ibid [36] (emphasis added).
R’s VARE of 3 December 2010
Evidence was adduced by the prosecution of a VARE conducted with R by police on 3 December 2010. During the VARE, R made a series of allegations against G. She was asked about the events that gave rise to Charge 6. The transcript reads as follows:
Q:So what was the very next time that you had contact with [G] after that first time that you had sex?
A:We had a curriculum day ---
Q:Mm’hm.
A:--- and I was home alone.
Q:So curriculum day. When was this?
A:This was in June.
Q:Yep.
A:July.
Q:And you were home alone.
A:Yeah.
Because of the additional grounds of appeal, it is necessary to note that during the VARE, R said that, on the day in question, G said that he had bought her something. She said that he ‘pulled out a pair of undies’. She said that he asked her to put them on and, later, to take them off. She said that he had said to her that she ‘looked better without’ them. Later, she described the underwear. It was, she said, ‘red, like, rose pink … frilly round the edges’. She said that, after intercourse had taken place, she put the underwear that had been given to her into her wardrobe ‘‘[c]ause I didn’t want mum to see them.’
R was cross-examined in a special hearing. Her evidence relevant to Charge 6 was as follows:
Q:Do you remember whether there were any underwear given to you on that occasion?
A:No.
Q: No you don’t remember or no, [it] didn’t happen?
A: I don’t remember.
Q: Do you remember what time of the year this was when this occurred?
A: No. No.Q:You told the police that it was the middle of 2010. Would your memory have been accurate when you told the police in 2010 that that was the time it happened?
A: Yes.
Q:You remember it being a curriculum day, do you or do you just remember that because that is what you told the police in 2010?
A: No, I remember it being a curriculum day.
Q:You were missing a lot of school around this time though, weren't you?
A: Yes.
Q: You were frequently not attending school, do you agree with that?
A: I would go to school and then leave, yes.
Q: So really, you weren’t at school during this time?
A: No.
Q: You’d just go to school and leave. Is that what you said?
A: Yes.Q:So is there any reason why you think that this was a curriculum day, that this happened?
A:Because I had no reason to go to school in the first – like in the first place. What I would do was go to school for the first like, home group of it and get signed off and then just leave after that thinking that it would sign me on for the rest of the day.
Q: What would you do then?
A: I would just go to a friend’s house or roam around, walk around.Q:This time when you say you had sex with [G] on the curriculum day, what time of the day do you think it was?
A: Afternoon.
Q: Do you know how it came to be that he was at your house that day?A:I – I just assumed he was on break because he told me he had to go back.
Q:What was the state of your foot at this time, during this incident? Was it bandaged or not?
A: No, it wasn't bandaged for long.
Q:Based on your memory that you have today of this curriculum day incident, was your foot healthy or was it in a bandage, do you remember?
A: Healthy. I would say healthy.
Q:And if your foot was injured during this incident would you remember that today?
A: No, I don’t remember when my foot was injured.
Q: Is that because you don't clearly remember the occasion?
A: Yeah.
R was cross-examined about the underwear which her mother found in her room. Counsel put it to R that G had indeed given her the pink underwear but that he had given her all the underwear on the one occasion. On that occasion, counsel suggested, G had said to R that he had mistakenly collected the underwear when he was doing his washing at the house previously and was returning it. R denied that this was so.
R’s mother (‘L’) gave evidence at trial. In early December 2010, she said, she had looked into R’s wardrobe and had found some underwear. In all, she estimated that she found four pairs of underwear. L said that three of the four pairs (including the pink frilly underwear) belonged to her; the fourth pair (red underwear) she believed belonged to her sister, who had visited her previously.
L asked her daughter what the underwear was doing in her wardrobe. R said that G had given her the underwear. When L replied that the underwear was hers, R insisted that it belonged to her. When L asked, ‘Why would he give them to you?’, R told her that there had been sexual contact between herself and G. L said that her daughter became very distressed during this conversation.
L then called the police. While they were waiting for the police, L stressed to R how serious her allegations were. Her recollection was that she had said to R ‘[t]his is very important. These are serious allegations that you’re making that can tear families apart’. She evidently wanted R to be sure that she was giving a complete and accurate account.
Forensic evidence established that a number of items of the underwear which R alleged had been given to her by G contained traces of his DNA. Two of those items also contained R’s DNA. There was no suggestion that there was DNA from any other person.
As to the pair of pink frilly underpants, G’s DNA was detected on the sperm fraction and non-sperm fractions of the samples taken from it. There was also evidence of R’s DNA on those underpants.
When G was interviewed by police, he denied that any sexual activity had taken place. He denied that he had given R the underwear (as already noted, R was subsequently cross-examined on the basis that he had given her the underwear).
G was asked about an allegation that he had sexually penetrated R in June or July 2010. It was put to him that this had occurred ‘on a curriculum day in June or July this year’. G said he had no idea of what a ‘curriculum day’ was, but he did recall a visit to the house at around that time. He said he had gone there to visit R’s grandmother, who had come over from New Zealand to look after R after she had burnt her leg. He denied that he had given her the pink underpants, and denied any sexual contact.
The Crown evidence included a document from R’s school, entitled ‘Absence Activity Summary by Form Report for the period 1 February 2010 to 22 December 2010’. The document indicated that:
(a) 9 August 2010 was a day set aside for ‘staff meeting’, which meant a curriculum day for students (such that R was not expected to be at school that day); and
(b) R was very frequently absent from school in the period 1 May — 10 August 2010.[9]
The activity summary did not contain any entry for Friday, 11 June 2010.
[9]R was cross-examined about her truancy. The relevant cross-examination is extracted in [25] above.
Also in evidence was a letter from Monash Health, which recorded R’s medical treatment for her foot injury during the relevant period. R had been admitted into hospital on 23 June 2010. She was ultimately discharged on 31 July 2010.[10] She had outpatient appointments on 5, 12, 17 and 18 July 2010 and on 9, 16 and 23 August 2010.[11]
[10]There was some confusion at trial as to when R was admitted to hospital. The relevant exhibit says that she was first admitted on 23 June 2010 and discharged on 29 June 2010. It then states that she was re-admitted on 29 June 2010 and discharged on 31 July 2010. However, it is probable that the second admission commenced on 29 July 2010.
[11]The Crown tendered Exhibit G, a letter from Monash Health, which was said to confirm these dates.
As indicated above, R had given evidence that the events giving rise to Charge 6 had occurred when her foot was healthy. Accordingly, there was a basis for submitting that the events the subject of Charge 6 could not have occurred on 9 August 2010.
This evidence was tendered on the 11th day of the trial. Immediately afterwards, the trial judge, in the absence of the jury, drew attention to the fact that there was also a ‘holiday’ on 11 June 2010. She noted that, according to LJ, there were no classes on that day, which was the Friday before the Queen’s Birthday weekend.
The following exchange then took place between the trial judge and counsel:
HER HONOUR: So it was just in respect of this evidence about the school. I was looking at the notice of additional witness from [LJ] and it suggested there was a holiday as well on 11 June 2010.
PROSECUTOR: (Indistinct)
HER HONOUR: It is not on that thing as a staff day, but if you look at the statement it is clear that the informant has made some further enquiries in relation to when the curriculum days were, and then she goes and looks up Records. I am sure you know the statement. But it suggests that there was another holiday on the – or no classes on 11 June 2010.
PROSECUTOR: In the actual records themselves?
HER HONOUR: No.
PROSECUTOR: In her statement?
HER HONOUR: In her statement. In [LJ’s] notice of additional witness statement dated 4 August 2014.
PROSECUTOR: Yes, 4 August, I do not have that one.
DEFENCE COUNSEL: I think [LJ] says that there was no students on that day, but we think that would probably be the Queen’s birthday, Your Honour, rather than a curriculum.
HER HONOUR: No, because she says – God knows why I remember this, but she says, ‘It was the Friday before the Queen’s Birthday’.
DEFENCE COUNSEL: I see.
HER HONOUR: And that was why it was probably a holiday because we had the Friday, Saturday, Sunday, Monday.
DEFENCE COUNSEL: I see. Was she in hospital at that time?
HER HONOUR: As I said, I don't know why I remember it, but I did hear – in paragraph 4. ‘I looked specifically at the period and I found there were no classes generated on Friday, 11 June for any students.’ This Friday would have preceded the Queen’s birthday on Monday, the 14th of the long weekend. So I just do not know whether you also want to get just from this informant that there were no students there on 11 June 2010.
PROSECUTOR: Yes, I probably will, Your Honour.
HER HONOUR: I do not know whether it makes any difference or not, but - - -
DEFENCE COUNSEL: Your Honour - - -
HER HONOUR: Do not worry. I mean, we can sort it out on Monday if you want a bit more time to think about it.
DEFENCE COUNSEL: Yes, it might be better.
HER HONOUR: Because the witness is coming back anyway because she has got to sit there while the record of interview is being played.
DEFENCE COUNSEL: Yes, Your Honour.
HER HONOUR: But do, because, as I said, it was just something I noticed when I read the notice of additional witness in respect of that witness, and I was wondering why. There seemed to be two notices of additional witness in respect of that witness. One on 1 August and one of the 4th.
DEFENCE COUNSEL: Your Honour, I will put some thought into it and talk to my learned friend. The reason I would like some time to think about it is that I am intending to argue that in relation to some of these charges the date should be elevated to an element of the offence, a material of particular, because of the specificity in relation to J's birthday, curriculum day, so it might impact that argument. And I was also going to flag that - - -
HER HONOUR: Yes, except that in this instance the date covers the August one anyway it seems.
DEFENCE COUNSEL: The between dates?
HER HONOUR: Yes.
DEFENCE COUNSEL: Yes, I know, Your Honour, but there is some case law that would support an argument that when someone's specific, such as, this happened on my brother's wedding or something like that, that the date then becomes a material element of the offence.
HER HONOUR: Yes.
DEFENCE COUNSEL: So I was hoping to – yes.
HER HONOUR: No, that is fine, we will sort that out on Monday if you like.
DEFENCE COUNSEL: As Your Honour pleases.
HER HONOUR: But does it really change the issue of getting the evidence out in any event? It doesn't does it?
DEFENCE COUNSEL: I would just like to reflect upon [LJ’s] statement.
HER HONOUR: No, that is all right.
DEFENCE COUNSEL: In terms of what is meant by curriculum day, I guess.
HER HONOUR: That is okay. All right, could you get the witness back and the jury back please?[12]
[12]Emphasis added
It will be recalled that defence counsel had been given notice on the first day of the trial of the Crown’s intention to call additional evidence from LJ. Her statement made it unmistakeably clear that 11 June 2010 was a day upon which R would not have been expected to be at school, that is, it had the relevant characteristics of a ‘curriculum day’. Thereafter, the trial had been adjourned pending the hearing and determination of the interlocutory appeal. The trial did not resume until 3 September 2014.
Charge to the jury
On 18 September 2014, the trial judge commenced her charge to the jury. Relevantly, the trial judge gave directions to the jury as to the use they could make of what the Crown said was tendency evidence:
Part of the prosecution case is that [G] has demonstrated a pattern of behaviour that involves him engaging in sexual acts with [R]. That is, that he has a sexual interest in [R] and he is prepared to act upon it.
The prosecution argues that the conduct that is said to establish that interest is separate acts that you need to consider. There are three, what is - three uncharged acts and then the other charged acts. So I want to go through each one individually so that you identify what it is in argument that the Crown were saying to you yesterday.
…
The third relates to the evidence regarding the provision of underwear to [R] and her evidence in relation to that. Now that relates to the circumstances of that evidence being - of that - of the underwear being found but also relates to what was said when it was found. It is also related to the evidence regarding the sperm and DNA that was located on that underwear. So that is the three acts that are not charged acts that the Crown says that you can rely upon in determining whether you are satisfied as a matter to take into account that the accused had a sexual interest in [R] and was willing to act upon it.
In addition to that, the Crown relies on each of the individual acts that are the subject of charges.
…
The sixth being the curriculum day and the Crown argument in relation to that evidence relates to both what [R] said but also in respect of the pink underwear …
So that is one, two, three - that is ten separate incidents. Now the Crown say to you that by proving that the accused had a sexual interest in [R] and a willingness to act upon it, that it is more likely that he committed the act under consideration on the indictment. That is, if you are satisfied beyond reasonable doubt of any one of those matters that I have just listed for you, you can use that finding to support [an] inference that the accused had a sexual interest in [R] and he was willing to act on it.
Now, I am going to go into a little bit more detail about that in respect of the underwear because counsel relied on this evidence quite heavily in relation to their closing addresses yesterday. The Crown said that you should be satisfied beyond reasonable doubt that the accused gave [R] the underwear in the context of sexual activity between them. They rely first of all on the evidence of [R] regarding the underwear. They also rely on the evidence of Clinton who was the police officer who was taped giving her evidence, her mother and her stepfather in telling them that the underwear came from the accused and also the circumstances of the discovery and you will remember the evidence about that from them, how that came about that the underwear was discovered.
Additionally, the Crown rely on the presence of the accused's sperm on some of the underwear and they rely on the presence of [R’s] DNA on some of the underwear and the position of where it was on the underwear. The Crown says that you can infer from that evidence that the accused gave [R] the underwear in the context of sexual activity between them.
Now, defence say that that is not the only reasonable inference that you can draw from that evidence, that you cannot believe [R] in respect of any of her evidence in respect of any sexual activity between them. Defence also say that there is no direct evidence as to how the sperm of the accused got on the underwear. Defence also say that the inference the Crown invites you to draw is not the only reasonable inference that can be drawn from the evidence. They argued that the accused's sperm was on the underwear but there was also evidence that he had a sexual attraction to the mother and the underwear was in fact the mother's underwear.
Now, the Crown says that you can use these pieces of evidence, that being those ones that I listed for you before, either singularly or in combination. That is, that you can be satisfied beyond reasonable doubt as to any one, some or all of them to establish or to prove that the accused had a sexual interest in [R] and was prepared to act upon it. In response, the defence says you cannot be satisfied beyond reasonable doubt in relation to any of those pieces of evidence, principally because the source of that evidence is all [R] and she cannot be believed. Her credit and reliability is such that you cannot believe her at all.
Now, if you are satisfied beyond reasonable doubt that one or more of those events took place or that the accused did any of those acts that are alleged, then you may find that [G] has demonstrated a sexual interest in [R] which makes it more likely that he committed the offence that you are considering.
If you are not satisfied beyond reasonable doubt of that evidence or you do not think that the effect of that finding is that it makes it more likely that the accused committed the act or charge under consideration, then you must disregard it. It is important that you only use this evidence for this purpose and only if you are satisfied beyond reasonable doubt that it is true and helps to explain the occurrence of the act, the subject of the count. If you are not satisfied [of] the evidence beyond reasonable doubt or do not think that it makes it any more likely that [G] committed the alleged act, then you must disregard it.[13]
[13]Emphasis added.
The trial judge subsequently gave specific directions in relation to Charge 6. She said:
In respect of Charge 6, this is what has been referred to in the course of the case as the curriculum day event where [R] says she was home by herself. She was home from school. That the accused came around. That he gave her, on this occasion, the pink pair of underpants and that at some stage, sexual penetration took place. This charge is different in the sense of the arguments - or sorry, the evidence that you can consider in relation to it.
In addition to having the direct evidence from [R], the Crown also say you should infer that the pink underwear that was located in the wardrobe, was the underwear that was provided in the course of sexual activity that took place in respect of this Charge 6. They invite you - this is the Crown, invites you to draw that inference. I said to you when I gave you the direction regarding inferences that I would go back to that and relate that to a specific charge and that is what I am doing now.
In this case, the prosecution has asked you to infer the accused's guilt of Charge 6 from the evidence regarding the pink underwear. That is, where it was found, what was said when it was found, the DNA results on it, that being, the DNA results in respect of [R] and the accused man. Before you can do that, you must be satisfied that that is the only reasonable inference that can be drawn from the circumstances established by that evidence.
If there is any other reasonable explanation of those circumstances that is consistent with the accused's innocence, then the prosecution will not have provided that link to Charge 6 beyond reasonable doubt. In determining whether an inference is a reasonable inference, you must consider the evidence as a whole. Do not disregard an item of evidence because when considered alone, it does not support a reasonable inference.
…
In relation to this then, in respect of Charge 6, if you are satisfied that the only reasonable inference that can be drawn in relation to the evidence of the pink underwear, you can use that in considering Count 6, along with the evidence of [R]. That is the only piece of evidence that is extra, in relation to the counts, and it only relates in this instance to Count 6. Now that is distinguished from the directions I gave you before about proof of a sexual interest by the accused in [R].[14]
[14]Emphasis added.
We turn now to address the grounds of appeal. We deal first with the additional grounds.
The finding of the pink underpants
As noted earlier, Ground 2 contends that the judge erred
in admitting into evidence as a circumstantial fact in proof of Charge 6 evidence of the finding at R’s residence of pink frilly underwear upon which DNA from G’s spermatozoa was located.
Ground 3 contends that the judge erred in directing the jury that the evidence could be used in this way in proof of Charge 6.
As appears from the extract from the charge set out above, the judge directed the jury in relation to Charge 6 that, in addition to R’s direct evidence of what had occurred, the prosecution were inviting the jury to infer ‘that the pink underwear that was located in the wardrobe, was the underwear that was provided in the course of sexual activity that took place’ on that occasion.
The trial judge directed the jury that the link between the underpants and the sexual activity could only be drawn if that was ‘the only reasonable inference that can be drawn from the circumstances established by that evidence’. Defence counsel had earlier submitted that, before the evidence could be used in proof of Charge 6, the jury would need to be satisfied beyond reasonable doubt that G’s semen ‘got on the underwear during that sexual activity’.
The trial judge then summarised the defence arguments as to other explanations for the presence of the underpants in the wardrobe, and directed the jury that, if they were satisfied that the only reasonable inference was that G’s semen was deposited on the underwear during the sexual activity the subject of Charge 6, then it could be used as an ‘extra’ piece of evidence in relation to Charge 6.
The submission in support of this ground of appeal contends that the evidence concerning the finding of the underpants was not probative — whether by inference or otherwise — of G’s guilt of Charge 6 and that, accordingly, the trial judge’s direction was wrong in law. The central contention is that the mere finding of the underwear in R’s wardrobe could not have provided any support for her account unless its presence was unexplained. An adequate explanation had been given, it was said, by L (R’s mother) who told the jury that the underwear belonged to her. Hence, it was said, the presence of the underpants at R’s home was explained.
It was submitted, further, that the presence of G’s sperm on the underwear could not ‘circumstantially support’ R’s evidence. That would only be possible
if it was reasonably open on the complainant’s testimony, looked at in the context of the surrounding evidence, to infer that the appellant’s sperm was deposited on these underwear in the course of commission of Charge 6.
These submissions must be rejected, in our view. The judge correctly pointed out to defence counsel that the prosecution case was not a circumstantial one. Rather, the case in support of each of the charges relied on R’s direct evidence that G had committed the alleged sexual act, at the time and place described by her.
Properly characterised, the question which arose here was one of corroboration. The judge had to decide whether the evidence of the finding of the pink underpants was capable of corroborating R’s direct evidence about Charge 6. In our view, the evidence was capable of providing corroboration and the jury should have been given a direction in those terms.
As this Court explained in R v Kuster,[15] evidence amounts to corroboration if it is independent of the witness to be corroborated and ‘tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime’.[16] On any view, the evidence of the finding of the pink underpants was evidence of that kind.
[15](2008) 21 VR 407 (‘Kuster’).
[16]Ibid 411 [14] (citations omitted).
As noted earlier, R’s account was that G had given her the pink underpants on this particular occasion and that, after sexual intercourse had taken place, she had hidden the underpants in her own wardrobe. The evidence of her mother — of the subsequent discovery of underpants meeting that description and in the exact location which R had identified — rendered her evidence ‘in a material particular more probable’.[17]
[17]R v Rayner [1998] 4 VR 818, 838, quoted in Kuster (2008) 21 VR 407, 412 [16].
The fact that R’s account of the occasion giving rise to Charge 6 did not explain how G’s DNA came to be on the pink underpants did not rob it of its corroborative force. Indeed, the presence of G’s DNA on the underpants was evidence independent of R which tended to confirm her account that he had given them to her.
Corroborative evidence may be circumstantial as well as direct.[18] In this case, the corroboration was direct. It was, as we have said, evidence of the discovery of the very pair of underwear which R said she had been given on the relevant occasion, and in the very place where she said she had hidden them.
[18]R v Baskerville [1916] 2 KB 658, 667; Doney v The Queen (1990) 171 CLR 207, 211 (‘Doney’).
No question of circumstantial evidence arose. The proper use of this evidence in relation to Charge 6 did not involve the drawing of inferences. It was not a case where the jury had to be satisfied about an inference being ‘the only reasonable inference available’.[19]
[19]The position was different, of course, with respect to the use of this evidence as tendency evidence, which called for inferential reasoning from circumstantial evidence, as this Court made clear in its interlocutory appeal judgment: Gentry (a pseudonym) v DPP [2014] VSCA 211 [36].
Nor did the jury’s use of the evidence for this purpose involve reaching a state of satisfaction beyond reasonable doubt. As the High Court said in Doney,[20] ‘it is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt’.[21]
[20]Doney (1990) 171 CLR 207.
[21] Ibid 211. Of course, G’s guilt of the offence charged did have to be proved beyond reasonable doubt. We note that the Jury Directions Act 2015 — which came into force after this trial ended — makes clear (s 61) that the only matters which may now be the subject of a direction that proof beyond reasonable doubt is required are:
In the event, therefore, the trial judge’s directions were unduly favourable to the accused. By requiring the jury to be satisfied beyond reasonable doubt that the only explanation for the presence of the pink underpants in the wardrobe was that they were connected with the conduct the subject of Charge 6, the trial judge set a standard of proof higher than was necessary.
These grounds must be rejected.
Ground 1: alibi evidence
As noted earlier, R’s evidence was that the conduct the subject of Charge 6 occurred when she was at home on a ‘curriculum day,’ in June or July 2010. The additional evidence of LJ, of which the defence were given notice on the first day of the trial, identified 11 June 2010 as a further curriculum day.
The complaint advanced under Ground 1 is that G and his wife were not aware until after his conviction of the significance of 11 June 2010. Had they been aware, it is said, they could have obtained evidence to establish an alibi for G on that date.
In cross-examination, R said that she believed that the events the subject of the charge had taken place before she injured her foot. The evidence indicated that her foot was heavily bandaged on 9 August 2010. That is why, it seems, the judge identified 11 June 2010 as the probable relevant curriculum day. As noted earlier, at that point defence counsel said that she might apply for the specific date to be made an element in the charge. No such application was made.
During submissions in relation to sentence, further reference was made to 11 June 2010. G’s wife (‘E’) deposed in an affidavit that this was the first time the significance of 11 June 2010 became plain to her. After the imposition of sentence, she made email contact with trial counsel, who responded by saying that if the actual whereabouts of G on 11 June 2010 could be identified, that would amount to fresh evidence.
‘Fresh evidence’ and ‘new evidence’
It is appropriate to pause at this juncture to consider the distinction between ‘new evidence’ and ‘fresh evidence’, and the significance of the distinction. In Ratten v The Queen,[22] Barwick CJ drew a distinction between the production of ‘fresh evidence’ and the production of ‘new evidence’ on appeal. He defined ‘fresh evidence’ as evidence which is discovered after the verdict that ‘could not reasonably have been available at the trial’.[23] He defined ‘new evidence’ as evidence which was available to the accused, or which the accused could reasonably have been expected to produce at the trial.[24] Barwick CJ summarised the relevance of these distinctions as follows:
To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of that new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.[25]
[22](1974) 131 CLR 510 (Barwick CJ, McTiernan, Menzies, Stephen and Jacobs JJ).
[23]Ibid 519.
[24]Ibid 517.
[25]Ibid 520.
As regards the significance of the distinction between new and fresh evidence, in R v Nguyen and Tran,[26] Kenny JA (with whom Winneke P and Callaway JA agreed) said:
[26][1998] 4 VR 394.
An appellate court cannot set aside a verdict on a ‘fresh evidence’ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial. If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant.Ordinarily a court will not be satisfied that the ‘fresh evidence’ ground is made out unless:
(a)the evidence was not available, or could not with reasonable diligence have become available, at the trial;
(b) the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief); and
(d)there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial. (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial — a ‘real and not remote’ — chance regardless of whether it is less or more than 50 per cent’.[27]
[27]Ibid 400–1 (citations omitted). See also Werden v The Queen [2015] VSCA 72 [71].
Recently, in Rich v The Queen,[28] this Court noted the distinction and said that ‘a higher bar applies to the admission of new evidence which the accused could have called at the trial’. [29] The Court went on:
If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial. That is the case whether the evidence is characterised as ‘fresh’ or only ‘new’.
If the Court is not persuaded of either of those matters, but the evidence is ‘fresh’ and there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice if it were permitted to stand.[30]
[28](2014) 43 VR 558.
[29]Ibid 570–1 [49].
[30]Ibid 571 [50]–[51] (citations omitted).
In Knowles (a pseudonym) v The Queen,[31] this Court said:
Nonetheless, in rare cases, evidence which was available at trial but which was not called may be adduced as demonstrating that there was a miscarriage of justice by reason of its not being adduced at trial. The rare cases in which such evidence is received can generally be described as cases in which —
it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused]’.[32]
[31][2015] VSCA 141 (Ashley, Redlich and Priest JJA).
[32]Ibid [105] quoting Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ) (citations omitted). See also R v AHK [2001] VSCA 220 [8] (Winneke P).
Whether the new alibi evidence is fresh evidence
In support of his original ground of appeal with respect to the alibi evidence, G relied upon several affidavits. The two of greatest significance were those sworn and filed by his wife.
In her second affidavit, E deposed that she was with trial counsel on 22 October 2014, and was told that an officer from R’s high school had said that there was a June date for a curriculum day. E deposed that she now presumes this to have been a reference to LJ’s evidence. She stated:
[Trial counsel] indicated to me at that time that this didn’t matter as the charge my husband had been convicted of had remained a between dates charge spanning from May until August 2010. I did not at that meeting receive the specific June date from trial counsel and I did not understand the significance of what she was saying. She seemed to not place much emphasis on that information, so I didn’t consider it further. The verdict had already been delivered and I was focusing on the plea hearing and helping to obtain character references.
Although it is not stated expressly in the affidavits, it can be inferred that E attended court when G was sentenced, and having listened to the judge on that day, realised for the first time that a particular date had been identified as the relevant ‘curriculum day’ in relation to Charge 6. She states:
The indictment in this trial charged an offence which occurred on a day between 1 May and 10 August 2010. I was aware that [R] had originally alleged, in her VARE statement to Victoria Police, that the offence had occurred on a ‘Curriculum Day’ in June or July 2010. However, I was not aware of any refinement of the date range alleged on the indictment, during the course of the trial proceedings.
After [G] was sentenced, I spoke with him by telephone. I raised with him the disclosure of a June date. He was surprised by this, as he had always been told that the date was not forensically significant, as the charged dates left open a ‘window’ of up to three months. When I told him it was now alleged to be a particular date in June, he was adamant that he would have been in attendance at a [TAFE] class on weekday afternoons during June. He asked me to confirm the date.
In her first affidavit, E deposed that, on 24 November 2014, she received a copy of the ‘Notice of intention to call additional evidence’, given to trial counsel on the first day of the trial. In her second affidavit, she deposed that this was ‘the first time that I became aware of [LJ’s] additional evidence and that the date of the allegation had been narrowed to the 11th June 2010’.
E then corresponded by email with trial counsel to seek clarification of the date of the ‘curriculum day’. E wrote:
I had a thought — if we are able to prove where he was on that date of the curriculum day, he is almost certain he was at his course in [B]erwick from 12.30–5pm or 8pm. Given that the judge sentenced him to that particular day is this considered new evidence if it shows his whereabouts for the entire day? He finished at 10.30–11 at work. [G] didn’t leave the house to go to work until 1pm. We could even try to find his location for the whole week. Are you able to gain his attendance records from the [TAFE] or only the police?
Shortly afterwards, trial counsel responded as follows:
Usually dates don’t matter very much, but where a complainant is very specific about a date — ie curriculum day, it is important. If we can show he had no opportunity on that day (I think the later curriculum days are out because she had her leg injury and she didn’t have it when she says this happened) then yes, that is fresh evidence and important for an appeal — can you approach the employer and [TAFE] and see what they say? If they require a subpoena, we can do it that way, but it would be better if they just needed [G’s] consent and would give it to you.
In her first affidavit, E also described the investigations she conducted as to G’s whereabouts on 11 June 2010. In particular, she collected the following documents:
(a) G’s employee time sheets;
(b) records showing when she dropped off her children for community care; and
(c) the attendance register records for 2010 at the TAFE college which G attended.
E further deposed that, in June 2010, she and G ‘shared one motor vehicle’. She was able to recall their ‘regular routine’ in June 2010. Each Thursday and Friday, she deposed, she required the exclusive use of the motor vehicle in order to take their children to community care.
E also deposed that on 11 June 2010, G was:
(a) in employment, his workplace being in Dandenong;
(b) enrolled at TAFE, where he was nearing completion of his Certificate IV in Renewable Energy Technology.
According to her affidavit, E needed the motor vehicle in order to deliver their children to community care, where they were enrolled to attend each Thursday and Friday. Accordingly, it was her practice to deliver G to work before he started at approximately 1.45 am.
The time sheets kept by G’s employer show that G was at work on 11 June between 2.00 am and 11.51 am. The records of community care show that on 11 June, E signed her two children in at 9.30 am and signed them out at 2.30 pm.
E says that it was her practice to collect G from work when he completed his shift. She ‘would have brought him’ back home for lunch. They ‘would have’ reached home at approximately 12.20 pm. After a light lunch, she ‘would have’ taken him to the railway station in order to catch a train to TAFE.
The attendance register for the TAFE college records G as being present on 11 June, for a class beginning at 1.00 pm, and leaving class during a break at approximately 3.00 pm.
Evidence from trial counsel
Trial counsel was subsequently given copies of the affidavits relied on to establish the availability of fresh evidence of alibi. Trial counsel in turn provided two affidavits in explanation of her conduct as trial counsel.
In her first affidavit, trial counsel deposed that it was not until midway through the informant’s evidence (which was near the close of the Crown case) that 11 June 2010 came to be recognised as a possible ‘curriculum day’ of significance to Charge 6. She deposed:
[i]t was clearly too late at this stage of the trial to start subpoenaing documents from archived locations to commence exploring the possibility of an alibi for this date.
After she had completed the first affidavit, trial counsel was provided with a copy of G’s Victoria Legal Aid file, which had been retrieved from archives and delivered to her. That file contained a twelve page document, prepared by G, which described his daily routines between March and July 2010 (‘the chronology’). In her second affidavit, counsel deposed that she has considered that document and:
I am now of the opinion that the primary reason I did not seek to obtain the ‘fresh evidence’ now before this Court was because I was provided with instructions inconsistent with an ‘alibi’ in relation to the relevant time period.
On the appeal, senior counsel for G contended that trial counsel must have misconstrued the chronology. In a supplementary submission, senior counsel contended that this Court
should not accept trial counsel’s evidence that she, as a matter of objective fact, was provided with instructions that were inconsistent with an alibi or instructions that, in any manner, absolved her in an objective sense of the need to bring the date of 11 June 2010 to the appellant’s attention.
He submitted:
Trial counsel may have been mistaken about these matters but it cannot be accepted that the appellant in fact instructed trial counsel in a manner inconsistent with alibi or in a manner that precluded the appellant having brought to his attention the 11 June 2010 date when its significance was realised.
Consideration
It is quite clear, in our view, that the alibi evidence is not ‘fresh evidence’. It is apparent from the trial transcript, and from the affidavit evidence, that:
·the defence were made aware, not later than the first day of the trial, that 11 June 2010 had been a curriculum day at R’s school;
·trial counsel was already in possession of very detailed instructions (in the chronology) as to G’s whereabouts on the days when offending conduct was alleged to have occurred;
·trial counsel took time during the trial to consider the significance of 11 June 2010 as a relevant date; and
·the information which has now been gathered with respect to 11 June 2010 (as set out above) could all have been obtained, without difficulty, at the time.
Of course, had it been the case that the late identification of 11 June 2010 as a possible date for Charge 6 caused the defence any difficulty, an application for adjournment would inevitably have succeeded. That no such application was made is very significant, given that trial counsel specifically sought time to reflect on the significance of that date and, in particular, to decide whether to make application to have the date included as a particular of the charge.
As we have said, G and his family had already gone to great lengths to document his whereabouts, in order to enable defence counsel to consider whether an alibi defence might be available in relation to the individual charges. In short, the issue of alibi for Charge 6 did not pass unnoticed. On the contrary, it was drawn specifically to defence counsel’s attention.
A review of defence counsel’s final address shows, however, that for quite understandable reasons, she concentrated on demonstrating that R’s evidence was simply not credible. That approach was evidently most effective, as G was acquitted of all charges but one.
Trial counsel deposed that, after reviewing the chronology, her instructions on Charge 6 were inconsistent with alibi. We see no reason to doubt that statement. As trial counsel herself pointed out in a response to the appeal submission filed on behalf of G, the allegation which supported Charge 6 had always been expressed as confined to a curriculum day in either June or July 2010. And, as noted earlier, G was specifically asked about that period in his record of interview.
It was following that interview that G’s mother-in-law spoke to him with a view to ‘drilling down’ into the dates and detail of the allegations. His wife also turned her mind to the question of dates. It was as a result of these discussions with G that the chronology was created. The chronology itself refers to June/July 2010 as the relevant period for Charge 6. In other words, G and his family were well aware that the allegation related to the June/July 2010 period and — in the form of the chronology — provided detailed instructions as to his movements in that period.
In any event, as the respondent’s original written case pointed out, the alibi evidence is, at best, equivocal. The only independent evidence of what occurred is in the written records. Otherwise, for understandable reasons, G’s wife is constrained to rely on what she ‘would have’ done, based on what the ‘usual routine’ was. Of course, statements about what ‘would have’ occurred would not have been admissible in evidence at the trial.
But even if it could have been proved by admissible evidence that G:
·attended work on the morning of 11 June;
·was picked up by his wife and then went home;
·was dropped off by his wife at the railway station; and
·attended at the TAFE college in the afternoon,
the respondent correctly points out that there would still have been opportunity for G to go to where R lived and commit the offence, either before or after attending the TAFE class. G and R lived in the same suburb and in relatively close proximity to the relevant railway stations. And there was evidence to suggest that this episode was of short duration. R said in evidence in relation to this charge that she ‘assumed [G] was on break because he told me that he had to go back’.
We have already referred to the corroborative force of the evidence as to the finding of the pink underpants in R’s wardrobe. Given the specificity of R’s recall — that G had given those underpants to her on the day of the sexual penetration which founded Charge 6, and that she had put them in the wardrobe — this was powerful corroborative evidence. In the circumstances, in our view, there is no realistic possibility that the presentation of the alibi evidence would have resulted in an acquittal.
The appeal must therefore be dismissed.
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(a) the elements of the offence charged (or any alternative offence); and
(b) the absence of any relevant defence.
Section 62 of the Act abolishes any rule of the common law to the contrary.
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