Mathis (a Pseudonym) v The Queen
[2014] VSCA 118
•16 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0185
| BRIAN MATHIS (A PSEUDONYM)[1] |
| v |
| THE QUEEN |
[1]To ensure that there is no possibility of identification of the victim of the 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: | MAXWELL ACJ, NEAVE JA and KYROU AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 May 2014 |
| DATE OF JUDGMENT: | 16 June 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 118 |
| JUDGMENT APPEALED FROM: | DPP v [Mathis] (Unreported, County Court of Victoria, Judge Gucciardo, 4 September 2013) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Applicant was stepfather of victim – Victim’s mother gave evidence for prosecution – Evidence led of statement by applicant that he needed to protect himself against false allegations – Evidence not objected to by defence – Defence case alleged fabrication of allegations – Rational forensic decision not to object – No miscarriage of justice.
CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Character evidence called by defence – Good character direction – Conventional ‘balancing direction’ that persons of good character can commit crimes — Judge referred to ‘scoutmasters [and] priests’ as examples – Whether comment diluted benefit of direction – Redirection sought and given – No miscarriage of justice.
CRIMINAL LAW – Trial – Evidence – Proof beyond reasonable doubt – Complainant said ‘I think’ penetration occurred – Whether capable of proving offence – Whether open to jury to be satisfied beyond reasonable doubt – Importance of context – Witness’s evidence to be assessed as a whole – Open to jury to be satisfied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Marich Legal |
| For the Respondent | Mr C B Boyce | Mr C Hyland, Solicitor for Public Prosecutions |
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MAXWELL ACJ:
After a trial in the County Court, the applicant was convicted of four counts of incest, two counts of indecent act with a child under 16 and one count of attempted incest. He was sentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of six years.
He now seeks leave to appeal against conviction. For reasons which follow, I would refuse leave to appeal.
Factual background
The complainant was the applicant’s stepdaughter, J. She is the daughter of P, who was the applicant’s de facto partner during the relevant period. The applicant had been in a relationship with P from the time that J was very small.
J and P lived with the applicant in his house. All of the alleged offending occurred at the house, while P was at work. J was aged between 10 and 15 at the time of the offending.
It is unnecessary for present purposes to detail J’s allegations. The defence case was that there had been no sexual contact of any kind. As will appear, J first made the allegations against the applicant after he had ordered her to move out of the house. J went to live with her grandmother but her mother continued to live with the applicant. The defence contended that J had made up the allegations against the applicant in order to break up her mother’s relationship with him.
J’s evidence was pre-recorded in the usual way. She was then cross-examined by defence counsel in a special hearing about the evidence she had given in that pre-recorded interview.
The applicant’s written case contained two grounds of appeal. On the morning of the hearing, counsel newly-retained to appear on the applicant’s behalf informed the Court that one of those grounds was being abandoned but that there were two additional grounds which counsel sought leave to argue. There being no objection from the Crown, leave was granted. I deal first with the original ground of appeal which counsel maintained.
Direction on good character
It was part of the defence case that the applicant was a person of good character. Character evidence was called to show that — as defence counsel put it in final address — the applicant was:
a decent, hardworking bloke. Well respected in the community. He is a person who has risen within his organisation. He’s caring … No whiff [of] inappropriateness sexually about young children. None of that.
In his charge, the judge referred to the character evidence before giving the jury the conventional direction as to the use to which that evidence could be put. First, his Honour pointed out, the evidence could be used when assessing the credibility of the applicant’s evidence:
As a person who is of good character and in that respect is generally thought to be more trustworthy than other people, you may be less willing to accept the prosecution’s evidence … than if he had not been a person of good character.
Secondly, his Honour said, the jury could use the evidence
to determine the likelihood that he committed the offence as charged. It is generally believed that a person who is of good character in relation to sexual offences is unlikely to commit a criminal offence and therefore you may be [less] willing to accept the prosecution’s allegations that [he] committed those offences, than if he had not been a person of good character in that respect.
His Honour continued:
This does not mean that you must find [the accused] not guilty if you accept that he is a person of good character, either generally or in relation to sexual offences.
The mere fact that a person is of good character, generally or in that respect, cannot alter proven facts. It can only help you to determine whether or not those facts have been proven. You should keep in mind that a person who has previously been of good character can commit a crime for the first time. We have an assortment of scout masters, priests and others who can attest to the good sense of that particular direction.[2]
[2]Emphasis added.
Defence counsel took exception to the highlighted sentence. It was submitted that this was ‘a most unhelpful reference’ and that it had had the effect of ‘substantially undermining and diluting’ the effect of the character evidence. The judge responded by explaining that he had been endeavouring to give the jury an example of what was meant by the statement that a person’s good character could not ‘alter proven facts’. His Honour said that he was not persuaded that the statement would ‘cast a pall’ over the applicant, since he was not in either of the categories of person mentioned. In his Honour’s assessment the jury would not be distracted from their task of considering the evidence.
At the conclusion of argument on the point, defence counsel submitted that
the standard traditional good character evidence warning should be re-given to them absent any reference to scout masters and priests.
The judge agreed, and the full good character direction was repeated to the jury, without any such reference.
On this application, counsel for the applicant submitted that the redirection was not sufficient to remove ‘the sting’ from what counsel characterised as a ‘visceral’ comment by the judge. The impugned sentence was said to have added great (adverse) force to the ‘balancing part’ of the standard direction on character, which reminded the jury that good character was not in itself an answer to allegations of criminal conduct.
It would, in my respectful opinion, have been preferable had the statement not been made. While a trial judge ought never to be criticised for endeavouring to make jury directions more comprehensible, to make reference to those particular categories of persons in a trial like this was unwise.
Having read the entire transcript of the trial and of the charge, however, I am not persuaded that this single passing reference would have distracted the jury from its task of deciding whether the evidence adduced from the complainant had proved the Crown case. Nor do I consider that there was any risk of the jury undervaluing the character evidence which had been led on the applicant’s behalf. If, contrary to my view, there was such a risk, it was removed entirely by the redirection. That was evidently also the view of defence counsel, who sought the redirection as the appropriate way of remedying the perceived difficulty.
This ground must be rejected.
Proof of penetration
The first of the new grounds advanced at the hearing of the application concerned certain answers given by the complainant in her recorded interview. The relevant passage of the interview is as follows:
Q 245Is there any of that time when he’s been touching you where he’s been interrupted?
A:If mum’s came home because she had pulled into the garage, he’s heard that, the door open or if one of his daughters came home or if the phone rang.
Q 246Yeah. Can you remember a time when I suppose he’s been, like, say, your mum’s got home?
A:He hopped into my bed and I think one of his, I think his daughter came home and he quickly got out and went downstairs and was talking to her.
Q 247What was he doing in your bed?
A:He was trying to put his fingers inside me.
Q 248O.K. And do you remember how old you were at the time?
A:I think I was about 10.
Q 249And how old are his daughters compared to you?
A:His eldest daughter’s 10 years older than me and his younger daughter is eight years older than me.
Q 250And you said he was trying to put his fingers inside you.
A:Yes.
Q 251Yep. So can you tell me what he was doing with his hand?
A:He was sort of half lying on top of me and was, he had his hand inside my knickers and was rubbing me and trying to put his fingers inside me, yeah.
Q 252Did, did he put his fingers inside you?
A:I think he did for a little bit and then it stopped because his daughter came home.
Q 253O.K. You said you think you were 10 years old at the time?
A:Yeah, I was around that age, yep.
Q 254How come you think you were around 10?
A:Because his daughter was definitely living there then.[3]
[3]Emphasis added.
The submission for the applicant was that the complainant’s response to question 252 — ‘I think he did for a little bit’ — was too uncertain to establish beyond reasonable doubt that digital penetration had taken place. In response to questions from the court, counsel accepted that it would have been sufficient if the complainant had instead said ‘I recall he did for a little bit’. As to whether ‘I believe he did’ would have been sufficient, counsel submitted that it would depend on the context.
Plainly enough, the question of whether a particular allegation has been proved — or, more accurately, whether a jury can be satisfied beyond reasonable doubt that it has been proved — cannot turn solely on the particular words which a witness uses in response to a particular question. The jury’s assessment of what is established by a witness’s evidence will be based on everything said by the witness, both in examination-in-chief and in cross-examination, and on the manner and tone of the witness’s responses to questions.[4]
[4]R v Strawhorn [2008] VSCA 101, [142]; R v DFA [2001] VSCA 197, [33]–[38].
Unsurprisingly, given that the Crown case against the applicant depended entirely on the complainant’s evidence, the jury were urged by defence counsel to review her evidence ‘very, very carefully’. I have no doubt that they did. Likewise, it was common ground on the hearing of the present application that, in order to decide whether this ground was made out, the members of the bench should view the video of the complainant’s interview.
Having done so, and having had the opportunity to observe the complainant’s responses to a large number of questions, including this particular question, I was left in no doubt that the jury could reasonably have viewed this particular answer as proving the fact of penetration. First, J used the phrase ‘I think’ to preface a number of her answers in the interview. Heard in context, this mode of speech could be seen to reflect J’s careful consideration of the questions put to her. Secondly, this particular answer was given without hesitation and with no apparent uncertainty. Thirdly, there was no challenge to this evidence in cross-examination, whereas many other aspects of J’s allegations were directly challenged.
This ground also fails.
Applicant’s concern to protect himself against unfounded allegations
The second of the additional grounds was in these terms:
A substantial miscarriage of justice occurred by reason of the admission of evidence of the applicant suggesting, before there was any complaint, that he needed to protect himself from allegations of abuse from a step-daughter, and the absence of any direction in relation to that evidence.
The complainant’s mother, P, was called as a witness by the prosecution. In her evidence-in-chief, she said that she had been in a relationship with the applicant from the time J was about three years old. She told the jury about the occasion in January 2012 when J had first disclosed the alleged sexual abuse. The first disclosure was to J’s grandmother, and then to P herself.
The prosecutor then asked P about ‘some comments that [the accused] made to you some six months prior to that’. P responded:
it was about — you have to be careful with stepchildren because they make accusations, or things like that, roughly in those sorts of words.
The prosecutor then asked P to clarify what it was that, according to the applicant, step-children would make accusations about. P responded:
About tampering or causing problems within … the relationship. But it was because of the documentaries and that we had been watching.
Asked further questions about this by the judge and the prosecutor, P described the applicant as having said that step-children could ‘cause a lot of problems’, by making accusations against a step-parent about ‘touching inappropriately or things like that’. Asked what had prompted this statement by the applicant, P said it was
after we watched a documentary about a man that had gone to gaol from his own daughter molesting him [sic].
P said that the applicant had made such statements ‘probably a few times’ before this particular occasion. But she confirmed that this particular statement was prompted by a documentary which they had watched together. At this point, the prosecutor made application under s 38 of the Evidence Act 2008 (Vic) for leave to cross-examine P about this issue, on the basis that the evidence which she had given was different from what was in her police statement, and was unfavourable to the prosecution. There was no objection by defence counsel, and his Honour permitted the cross-examination.
The prosecutor began the cross-examination by pointing out that, when P made her statement to police in January 2012, she had mentioned the applicant’s statement that he needed to protect himself. The cross-examination of P continued:
This was something that you yourself raised with police, is that right?---That’s correct.
You yourself considered these comments made by [Mr Mathis] to be relevant, is that right?---Um, I think so, yes.
Well you raised them yourself, is that right?---Yes. Yes.
When you told police that approximately six months before you made the statement [Mr Mathis] — in fact what you did was you told police that six months prior to making a statement [Mr Mathis] had said ‘I need to protect myself because step kids go funny, if a relationship breaks up they accuse a step parent of sexually abusing them.’ Do you recall that in your statement?
---Yes I do, yes.
You then said in your statement, referring to him saying that, you said, ‘That statement came out of nowhere’?---Probably at that time I did, yes. I, um, probably the other times that he had said it was because of the documentary, yes.
But you didn’t tell police that, did you?---No I did not.
All you’ve said in relation to the origin of any of this is — well sorry, all you’ve said in relation to the origin of that is that that statement came out of nowhere. Do you recall what your reaction was when he said that?---No, I probably was a bit shocked.
Why were you shocked?---Because I don’t know why he would have said that.
The submission for the applicant in this Court was that this was highly prejudicial evidence, which must have had the effect of inviting the jury to speculate about why the applicant might have made the statement. It could only have been relevant, counsel submitted, if the prosecution relied on it as an implied admission of guilt. The jury were being invited, it was submitted, to infer that the only reason for the applicant’s having made this statement was that, being aware of the sexual abuse in which he had engaged, he was seeking to ‘lay a false trail’ by raising in his partner’s mind the idea that it was typical of step-children who turned against a step-parent to make false allegations of this kind. It followed, according to the submission, that the jury needed to be properly directed about this attempt to rely on post-offence conduct. No such direction was sought or given.
Read in isolation, this passage of evidence does indeed appear to raise questions, both about why the evidence was adduced and about why no objection was advanced by the defence when the prosecutor sought leave to cross-examine P. As is so often the case with particular pieces of evidence, however, the true significance of this passage cannot be assessed without reviewing the trial in its entirety. Only then is it possible to understand what occurred in its proper context, including — crucially — the way in which the defence case was being presented.
In the present case, a review of the course of the trial reveals that defence counsel was fully aware of the import of the evidence proposed to be led from P, and made a forensic judgment, on rational grounds, not to object to its admission. As the High Court has recently reaffirmed, when a decision of this kind can be seen to have been made for sound forensic reasons, the accused is bound by the decision and cannot seek to resile from it on appeal.[5]
[5]Patel v The Queen (2012) 86 ALJR 954, 973 [114]. See also Tunja v The Queen [2013] VSCA 174, [5]–[6].
The starting point for the analysis is the applicant’s record of interview. In the course of pre-trial argument, defence counsel sought to have excluded certain questions and answers which, he submitted, contained a large amount of ‘irrelevant [and] distracting’ material. Some of the answers evidently referred to exchanges between J’s mother and one of J’s girlfriends. Counsel’s concern was that, because the applicant could be seen to be ‘angry and confused and upset at various times’ in the interview, these irrelevant answers might lead to the jury forming a negative impression of him as a ‘completely uncaring’ person.
In exchanges with the prosecutor, who opposed the excisions, the judge pointed out that the applicant’s references to J as ‘manipulative’ and ‘a spoiled little bitch’ were consistent with him ‘expecting her to cause trouble’. The following exchange then took place:
HIS HONOUR: He says, I didn’t realise she’d go this far, that is make sexual allegations. So what’s the relevance of it?
[PROSECUTOR]: That ties in with the mother’s statement where the mother talks about the fact that he has said to previous to any allegations being made, that stepchildren often make false sexual allegations against step-parents, and so that expectation there, as I say, ties in with that.
HIS HONOUR: But what’s that probative of?
[PROSECUTOR]: Your Honour, what is said is - - -
HIS HONOUR: How can it be probative of consciousness of guilt or of anything?
[PROSECUTOR]: Is your Honour referring to the mother’s statement or the record of interview?
HIS HONOUR: This statement, whether contained in the mother’s evidence or in this answer, how can the fact that the accused says, I was expecting something like this because often stepchildren make allegations of sexual impropriety, how is that probative of anything?
[PROSECUTOR]: Certainly the prosecution contends - - -
HIS HONOUR: So if he does, well, what if he’s said that or he believes it? So what?
[PROSECUTOR]: If he says that, your Honour, the prosecution contends that to say something like that out of the blue is an unusual statement for a person to make, and in fact, yes, it is probative of consciousness of guilt to some extent, to just come out of the blue and state, with — and as my recollection of the mother’s statement is certainly that the way she put it is that it was totally unprompted and that he’d said it on nothing more than one occasion. I’ll have to look at that, but the prosecution says, yes.
…
HIS HONOUR: If you’ve got another witness saying this was said to me by the accused in a completely unprompted and out of the blue — out of any context that’s a different matter, but he is being asked in these questions, at the beginning of this passage - - -
[PROSECUTOR]: Yes, I hear what your Honour says.
HIS HONOUR: About a general explanation as to what was happening at home between the complainant and himself.
[PROSECUTOR]: Yes.
HIS HONOUR: In that context it’s not out of context or out of the blue. He provides a rambling answer about all sorts of things, but what sort of things and whether they’re probative is a different matter. He might use words like ‘manipulative’, ‘spoilt little bitch’, but so what? What’s that probative of?
[PROSECUTOR]: That, your Honour, is relevant because that is his explaining to police why he says these allegations have been made.
HIS HONOUR: The defence don’t want that explanation, so why do you want it in? What’s it probative of?
[PROSECUTOR]: I want any explanation - - -
HIS HONOUR: That he’s an un — sort of caring and unfeeling sod?
[PROSECUTOR]: No, no. No, no. I don’t say that at all in fact, but when I say — what I do say, though, is if you look at the record of interview as a whole he’s spraying sort of allegations in every direction, and this is just an example of that, and the reason that he does that is — again, he is conscious of that fact that he has committed these offences and he is, as I say, taking a sort of machine gun approach to dealing with the allegations.
HIS HONOUR: In the context of a denial.[6]
[6]Emphasis added.
The prosecutor then referred to a particular answer in the record of interview, in which the accused had said:
So she never got her own way. She’s been down there [at her grandmother’s], sleeping on the sofa and trying to get her mum out of the house.[7]
The prosecutor then submitted:
[T]hat is relevant if defence are going to go down that path, and I understood the defence case to be essentially, having looked at the committal, to be going down that path. That is, she is trying to split up the accused from the complainant’s mother.[8]
[7]Emphasis added.
[8]Emphasis added.
The judge then asked defence counsel to specify the prejudice which flowed from the answers in question. Defence counsel responded:
The prejudice is that which Your Honour identified at a couple of points. He’s spraying allegations in every direction. Now, the prosecution says that that’s consciousness of guilt. The other side of that coin or the reasonable hypothesis consistent with innocence is that this is a bloke who is out of the blue dragged off the street after a day of work and told that his stepdaughter of 13 years is now making allegations against him completely out of the blue.
The judge then informed defence counsel that he could not understand why he would want the relevant answers deleted:
I would have thought that just as reasonable as the argument that you’re putting up, is the perception that an accused man in his situation would do exactly what he’s done? But it’s a matter for you. I don’t see that you say that this has got some significant prejudicial weight which you don’t want the jury to be involved in, in terms of their thinking. Quite frankly, I can see benefit to the accused in the answers, but your argument is that on balance you would want these answers excluded because he’s taking a general spray of — in answer to serious allegations which will not be helpful to an evaluation of his argument and I’m not persuaded by the arguments of the prosecutor in relation to their importance by way of any probative value. I don’t see that a person making these comments — I don’t see how consciousness of guilt could be shaped out of these responses, but I’ll hold this ruling in abeyance whilst I re-read the record of interview in totality. I’ll rule upon it in the morning.[9]
[9]Emphasis added.
The judge subsequently excluded the portions of the interview to which the defence had objected. The following answers were not objected to, however, and hence remained in the edited record of interview which was before the jury:
This is a 16-year-old kid who hasn’t got her own way, and that’s what it is. And I suppose — I don’t know, you’ve heard it a hundred times, I don’t know. I’m telling you this is a 16-year-old kid who’s got her own way — and she’s still getting her own way. We were workin’ on her to come home. She’s been tryin’ to get her mum out — forget it. Go on.
…
… she’s a very manipulative little girl. She’s a very smart little girl, and she can — she can dress her mum down in — in about two seconds flat, let me tell you. That’s where I step in and that’s why [J] hates my guts is because I set boundaries, they’re there to stay, I won’t go back on ‘em.
…
Why — why would — why wouldn’t have this come out 12 months ago or two years ago or whenever it was that I was supposed to have first done this? Why would—why wouldn’t have that have happened? Why is it all now because she’s run away from home and doesn’t want to come back? She’s tried to manipulate her mum in getting her out of the house, to live with her in a flat, just because her mum got a payout. So, you know, I don’t want [P] to go, her — her daughter can stay away, that’s fine.[10]
[10]Emphasis added.
It is clear from this sequence of events that defence counsel was well aware of the evidence which P would give about the applicant’s statement that he needed to protect himself. It is equally clear that, having given careful consideration to which parts of the evidence he wanted excluded, counsel made no objection to the admissibility of P’s evidence about the applicant’s statement.
Given that the judge had expressed serious doubt about whether the evidence to be given by P could support a ‘consciousness of guilt’ argument, this must be taken to have been a deliberate decision. It was evidently counsel’s view that the evidence to be given by P could support the ‘reasonable hypothesis consistent with innocence’ which the defence wished to advance, namely, that the allegations had been fabricated in order to ‘manipulate’ J’s mother and force her to leave the applicant. As will appear, that was the central thrust of counsel’s final address to the jury.[11]
[11]See [47] below.
J’s dislike of the applicant and her desire to have her mother leave him featured prominently in defence counsel’s cross-examination of J in the special hearing. The cross-examination commenced with the occasion when J was ‘kicked out’ of the house by the applicant following an argument between them. Counsel put to J, and she agreed, that:
·she wanted her mother in her life, but did not want the applicant in her life because she was angry with him;
·she wanted her mother to leave the applicant so that it would be ‘just the two of you’;
·she had written a number of letters to try and persuade her mother to be with her; and
·it was ‘enormously hurtful’ to her when, in January 2012, she realised that her mother was choosing to stay with the applicant.
After detailed questioning of J about the specifics of her allegations, counsel established that, following the making of the allegations, her mother was no longer living with the applicant. J and her mother were now living together in a unit. Defence counsel put to J that this was ‘what you wanted all along’. J disagreed.
The cross-examination concluded with the following exchange:
And to the very day that you were at your Nan’s, to the very day where you told your Nan, you in fact wanted your mum back for yourself?---Yes I wanted that but I had to accept that that was going to happen [sic].
And you knew that by making allegations against [the accused] that your mum would leave him?---No.
That’s what you thought anyway wasn’t it?---No.
You thought you’d get her back?---No.
As noted earlier, defence counsel raised no objection when the prosecutor sought leave under s 38 of the Evidence Act 2008 (Vic) to cross-examine P regarding the applicant’s statement concerning the propensity of step-children to fabricate allegations of this kind. Once again, there is no possibility that this was an oversight by defence counsel. Only a short while later, a similar application was made in respect of a different aspect of P’s evidence. On that occasion, defence counsel objected, and advanced lengthy argument as to why the leave should not be granted.
When defence counsel came to cross-examine P, he put to her — and she agreed — that:
·the applicant had said a number of times that he needed to protect himself;
·these comments were in respect of ‘stepdaughters and when there is a break up’;
·she and the applicant had, from time to time, seen documentaries ‘on that particular thing’, and had read articles in newspapers about it;
·it was ‘not an uncommon story’; and
·there had been ‘any number of conversations along that line over the years’ because of things that they had seen involving other people.
Finally, it is necessary to refer to what was said in the final addresses. The prosecutor addressed the defence case directly, reminding the jury that a number of questions had been asked in cross-examination of J:
The suggestion was in essence that the complaint of sexual abuse was made in order for [J] to get her mum back.
The prosecutor submitted, however, that what undermined that defence contention was that J had not volunteered the allegations against the applicant but had only spoken of them when questioned by her grandmother.
The prosecutor submitted:
It would be a different matter if [J] initiated the report herself. You could make a different argument in relation to this, this is all part of her plan to split up the mum and [the accused]. She thought it through, she makes the report herself, she plans to make a false accusation, goes ahead and does it. But that’s not what happens here. Here her nan approaches her, asks her the question and she bursts into tears and tells her. In those circumstances, how could the allegations be part of a plan that she’s got to split up her mother and the accused, made in response to someone else’s question.
Defence counsel, for his part, submitted to the jury that there was
no question … that [this] was a girl who wanted her mum back.
After detailing what were said to be inconsistencies in her evidence, counsel turned to J’s motivation:
In this case she has a strong motive for wanting — for making these allegations. She wants her mum back. Pure and simple. Now this isn’t something that’s a long, contrived, conspiracy theory, months of planning and preparation or anything, nothing like that. … [H]er nan makes a really silly comment. Probably from a wonderfully caring place, but it’s not the sort of comment that one should be making. And [J] jumps on it. ‘Yeah, oh yeah. Yep. Yep. Yep. Nah.’ And then she gets to the police station and jumps on what — and then she’s locked in.
In this case, ladies and gentlemen, it’s difficult to imagine a more powerful and strong motivating force than the desire to get one’s mother back. Does it get any more powerful than that? That is the prosecution’s case. Against that you have a man in his mid-50s who — never been in trouble with the law, raised two kids, two daughters of his own, no prior convictions, he’s made an emotional denial on the screen.
There is no question about that. And yes, he — you could almost see him going through a huge sea of emotions in this — his denial. Yes, and some of that’s anger and some of that — he lashes out at [J]. From his point of view, he’s an innocent man who’s done nothing wrong by this girl and what does he get for his trouble? Hauled into the police station and allegations like that made against him. Disturbing allegations. Really disturbing allegations.
Conclusion
What emerges clearly from the foregoing analysis is that the defence had good forensic reasons for wanting to have before the jury P’s evidence about what the accused had said regarding false allegations by step-children. As has been seen, the defence case was founded on what the applicant had said in his record of interview, namely, that J was manipulative and selfish and had been prepared to do anything — including telling lies — to get her mother back. Although the applicant did not say so in so many words, the clear implication of his answers was that she had invented these allegations against him after all else had failed. That was the basis of the defence cross-examination of J and it was the centrepiece of the final address to the jury.
It was well open to defence counsel, in my view, to conclude that it would assist the defence case for the jury to hear evidence that step-children had a propensity to turn on step-parents if relationships turned sour. That was exactly how the defence wanted the jury to view J’s allegations. As it turned out, the evidence which P gave, particularly under cross-examination, was made all the more helpful to the defence by her statements that this was ‘a common story’ and that she and the applicant had seen repeated accounts, both in documentaries and in the press, of false allegations of sexual abuse being made in such circumstances.
On defence counsel’s instructions — which were that the allegations were false — this was a perfectly proper course for him to take. That the applicant was convicted can be taken to reflect the jury’s satisfaction that what J described had actually happened and had not been manufactured in order to force her mother to end her relationship with the applicant.
There was no miscarriage of justice. As I pointed out in James v The Queen,[12] it has long been accepted that the making of forensic decisions of this kind is an exercise of the right to a fair trial.[13]
[12][2013] VSCA 55.
[13]Ibid [4], [13]. See also Suresh v The Queen (1998) 72 ALJR 769, 773–4 [22]–[23].
The evidence from P was clearly admissible, as it was relevant to the defence case of fabrication. It remains unclear, however, what probative value it was seen to have from the prosecution’s point of view. Counsel for the Director appearing on the appeal, who had not appeared at the trial, properly conceded that it was difficult to see any other basis for leading the evidence in the Crown case than as post-offence conduct. As we have seen, that was the explanation which the prosecutor had given the judge in the pre-trial argument.[14]
[14]See [33] above.
Ultimately, however, the Crown did not rely on the evidence for that purpose. The prosecutor made no mention of it in his final address.[15] In future, the requirements of ss 23–24 of the Jury Directions Act 2013 (Vic) should ensure that
decisions about whether particular evidence is to be relied on as post-offence conduct will be made well in advance of trial, and will be the subject of timely notice to the defence.
[15]Cf Papazoglou v The Queen (2010) 28 VR 644, 653–4 [34]–[40].
The application for leave to appeal must be refused.
NEAVE JA:
I have had the advantage of reading the draft reasons of Maxwell ACJ and agree with him, for the reasons that he gives, that the application for leave to appeal against conviction should be refused.
KYROU AJA:
I agree with Maxwell ACJ.
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