MJP v Tasmania

[2023] TASCCA 5

[2023] TASCCA 5

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	MJP v Tasmania [2023] TASCCA 5
PARTIES:	MJP
v
STATE OF TASMANIA
FILE NO:	CCA 949/2022
DELIVERED ON:	28 April 2023
DELIVERED AT:	Hobart
HEARING DATE:	3 March 2023
JUDGMENT OF:	Brett J, Jago J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and New Trial - Miscarriage of Justice - Particular circumstances not amounting to miscarriage - Improper admission or rejection of evidence - Evidence of an admission - Counsel’s objection deferred but not renewed or pursued - Evidence said to be inadmissible because probative value outweighed by danger of unfair prejudice - Accused bound by conduct of counsel - Evidence admissible in any event

Evidence Act (Tas), s137.
Hamilton v The Queen [2021] HCA 33, 394 ALR 194, referred to.

Aust Dig Criminal Law [3468]

REPRESENTATION:

Counsel:

Appellant:	F Cangelosi
Respondent:	L Pennington

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 5
Number of paragraphs:	39

Serial No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
JAGO J
MARTIN AJ

28 April 2023

Orders of the Court:

1      Leave granted.

2      Appeal dismissed.

3 No 5/2023

Serial No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
28 April 2023

1   I agree with Martin AJ. I would grant leave and dismiss the appeal.

4 No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
JAGO J
28 April 2023

2            I have had the benefit of reading the reasons for judgment of Martin AJ. I agree with those reasons. I join in the order dismissing the appeal.

5 No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 28 April 2023
Introduction

3             The appellant was charged on indictment with 11 counts of sexual offending against two complainants. Counts 1-3 charged two crimes of indecent assault, and one of rape, in respect of complainant A. Counts 4-11 charged a number of sexual crimes against complainant B, but during a trial before a jury Pearce J found there was no case to answer with respect to counts 5,7, 10 and 11, and directed acquittals with respect to those counts.

4            The jury convicted the appellant in respect of counts 1-3 relating to complainant A, and counts 4, 6, 8 and 9 with respect to complainant B.

5             The appellant filed a notice of appeal against his conviction on the basis that the verdict of the jury was "unsafe". Subsequently the appellant was granted leave to file an amended notice of appeal asserting that the appellant "experienced a miscarriage of justice at trial, resulting from:

"1	the failure of his trial counsel to object to the evidence of Dr McDougall on the basis of the Evidence Act 2001 126B(1);
2	the acquiescence of his trial counsel in permitting Dr McDougall's evidence to be given, despite having made an objection under the Evidence Act 2001 s 137, and despite the absence of any ruling on the objection."

6            On the hearing of the appeal, these grounds of appeal were abandoned, and the appellant was given leave to proceed on a single ground:

"The learned trial judge erred in law in admitting the evidence of Dr McDougall,
despite objection, without ruling on the objection."

7   For the reasons that follow, I would dismiss the appeal.

The evidence
8	The written submissions of the appellant provide a helpful summary of the main features of

the evidence[1]:

[1] Names in the written submissions have been anonymised.

"6

The direct evidence of the commission of counts 1-3 came solely from A; the direct evidence of the commission of counts 4, 6, 8, and 9 came solely from B.

7

A testified that:

(a)	She had been born to DW and LW and had partly been raised in the household of M and C H at [Address 1], Clarendon Vale between the ages of 4 months and 5 years;
(b)	The other children in the house were K, B, J, and C, and K later became KP, the wife of the Applicant (T);

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(c)	When K gave birth to B, she had moved out of M and C H's household, to live at [Address 2], Clarendon Vale;
(d)	She later stayed with K at [Address 2, Clarendon Vale] on weekends;
(e)	At around the age of 12 she learned that K was with a relationship with the Applicant;
(f)	Just after her 12th birthday, whilst K and the Applicant were living at [Address 3], Clarendon Vale, whilst sleeping on a mattress, the Applicant had 'come over beside the mattress on the floor and had proceeded to put his hands down my trousers, my pyjama bottoms, above my underwear' to her vagina;
(g)	K had come out and asked him what the Applicant was doing, and he claimed to have been 'talking' to her before the Applicant and K had left the room;
(h)	Despite K being like an older sister to A, she did not tell her, nor anybody else, although she stopped visiting K's house and did not re- establish contact until she was 14 years old;

(i)          When she re-established contact with K, K was living at, Warrane, and took what had previously occurred as 'a once off thing';

(j)	As a result she had a driving lesson with the Applicant, which resulted in her driving from [Warrane] to Flagstaff Gully, at which point the Applicant said that he would drive home;
(k)	When the car stopped, and whilst she was still in the driver's seat, the Applicant 'came across and leant over and tried touching me again' in the area of her vagina down her trousers touching her skin;
(l)	She and the Applicant had then swapped seats, and she told the Applicant that she wanted to go home;
(m)	Whilst the Applicant did not make any immediate complaint, in the following weeks she told her mother 'what was going on and what had happened' but did not gain a response or assistance;
(n)	She nonetheless continued to live with the Applicant, and on the occasion of a Pizza Hut work party, after K had gone to bed, she was sitting outside having a smoke, when the Applicant 'sat down beside me and from there, he was dressed in a dressing gown and underwear — had underwear underneath and he forced my head onto his penis into my mouth';
(o)	She pulled away from the Applicant, and he told her not to say anything because 'no one would believe me';
(p)	She told nobody about the third incident, and soon afterwards, had moved with the Applicant and K to a new residential address at Lewisham, but only stayed with them for a few more weeks;
(q)	Whilst staying at Lewisham, no further assault occurred, but she called SK to collect her because she 'wanted out'; She subsequently sent K an electronic message 'telling her exactly what was going on and told her I was going to stand for (B's) welfare'; and
(r)	She subsequently told MH 'that stuff was happening — I didn't go into details with him' when she was around 16-17 years of age.

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8            Under cross-examination A maintained that the three occasions had taken place, but also that:

(a)	She had only stayed at [Address 3] on one occasion, despite her police statement suggesting that she had done so on a number of occasions.
(b)	In relation to the driving lesson episode, the account that she had given to the police had not involved contact with her bare skin; and
(c)	In relation to the episode following the Pizza Hut work party, her police statement suggested that she had not told her mother about it, and in fact had told nobody.

9            LW corroborated much of A's general history, and testified that she recalled an occasion in A's early teen years, aged around 13 or 14 years, when she 'mentioned to me that [the Applicant] had been touching her in the car whilst he was driving'. A also told her that 'there were times when she had stayed at K's, and that [the Applicant] would be there on his own with her…when she'd go into her bedroom he would go in there and stay in there for ages and say inappropriate things to her'.

10          SK likewise corroborated the general background of A's account, and additionally testified that she had received a telephone call from A in which A said that 'something was going on … and that she needed to be picked up and she didn't actually say what, but she just asked me to go and pick her up'. As a result, SK left to collect A at around 10 pm from an address in either Primrose Sands or Lewisham. When A had been picked up, 'she didn't actually say much until I had to get it out of her and everything because she was hysterical and everything and that's when she basically turned around and said to me that there was an incident going on that she didn't appreciate'. When in Gagebrook, A 'said that there was an inappropriate A 'said that there was an inappropriate … handling going on that she didn't appreciate' and that 'she did end up saying his name, [the Applicant]' Under cross-examination, SK agreed that she had told the police that A had 'explained to me that a guy was flirting with her and trying to get into her pants, and she asked me to go down and get her', and that when she got into SK's car, she reported that a male had been 'kissing her and trying to put his hands down her pants'.

11          B testified that:

(a)	KP is her biological mother, and that she first met the Applicant when she was 6 years old, living at [Address 3], Clarendon Vale;
(b)	At the time, she lived there with her mother, and her brother, T;
(c)	A subsequently lived with her at Lewisham;
(d)	At [Address 3], there was an occasion where she was staying up late watching a film with the Applicant; the Applicant kept his hand on her knee until the film ended, before he put her to bed, at which point he 'had his hand down my pyjama pants for a while' on her vagina, under her underwear if she was wearing any;
(e)	B recalled 'just staring at my brother's head because we shared a room and I just remember hoping he didn't wake up';
(f)	When her family was living at, Warrane, it was 'at lease a monthly occurrence and there is just so much in my brain that it's all just kind of muddled and only particular occurrences or events stand out', and it was put by Crown Counsel that she meant that what had happened at [Address 3] was a monthly occurrence at Warrane, with which she agreed;

8 No 5/2023

(g)	The next event was at Orford, when she was in high school;
(h)	B was given alcohol to taste, before being showed to her bedroom by L and going to sleep;

(i)          B was awoken by the door handle rattling, to find the Applicant letting himself into the room;

(j)	The Applicant then 'hoisted me to sitting up in the bed', before 'he put his hands down my pants again, skin on skin (on 'my vagina and my thighs') …before he kind of pulled me onto the floor and he put his penis in my mouth and around my face', before the Applicant 'just stumbled off again';
(k)	She told a friend, TB about what had happened, 'not specifics', 'probably something like I'm being sexually abused', but could not recall whether she had said who was the abuser;
(l)	Whilst living in Lutana during high school years, whilst she was laying on a couch, the Applicant had 'got onto the couch and got in between my legs and he took my jeans and underwear down and he started using his mouth on my vagina';
(m)	When she was 18 or 19 years old, she told her GP 'about what had happened', then told the therapist to whom she was referred, and also told an uncle named C.

12          Under cross-examination, B testified that:

(a)	She told the police that the first incident had occurred when she was 6 years old;
(b)	At the age of 6 she would not have known 'what sex or intercourse was';
(c)	She and T had each had a single bed in the same room;
(d)	The earliest memory that she had of the Applicant was the [Address 3] incident;
(e)	She told the police that during the [Address 3] incident she 'wasn't able to think anything but what if my brother sees?', and 'what if he thinks, 'I want this', despite being 6 years old, and not knowing what was happening.

13          TB corroborated the general background narrated by B, and specifically testified that 'there were things concerning [the appellant] that I was told', but could not recall the exact words. She nonetheless explained that B had 'said that Matt had been doing things with them for a long time', and that the things were 'sort of sexual in nature'. She added that B had referred to 'having a bad gag reflex' which she took to refer to an oral sexual act.

14          KP's evidence corroborated the general background given by B and A, specifically testified that:

(a)	On one occasion at Lewisham she had heard the Applicant knocking on a door, possibly the door to the studio occupied by A, saying 'let me in';
(b)	She recalled A leaving the Lewisham address after she was picked up by 'her boyfriend', and then receiving a message from her to 'keep an eye on B';

9 No 5/2023

(c)	Whilst living at Warrane, the Applicant 'used to teach A to drive';
(d)	As a result of an argument between her and C, she contacted B and asked 'whether or not Matthew had interfered with her at any point', and her response was 'yes he has'.
(e)	She had subsequently messaged the Applicant and asked 'was it just B or his daughter E, and he sent me back a reply saying, No, only B';

15          MH's evidence corroborated the general background of, particularly, A's account, and included evidence that in 2008 he had received a telephone call from A in which 'she told me that there had been some form of sexual … look I don't know how to put it, some form of sexual attention that was shown by the accused'.

16          JRH testified that he had met the accused when he became involved in a relationship with KP, and became aware of an allegation made by B in 2005 or 2015, which then led to an exchange with the Applicant.

17          Dr David McDougall testified that he was a specialist psychiatrist, and had seen the Applicant on 25 January 2016. During the consultation, he had made a note that the Applicant:

'seemed to want to tell — seemed to want me to tell him why he sexually
assaulted, "groped", "molested" his stepdaughter B.'

'However, he has not given me enough to go on to assist with this. I asked if he was sexually attracted to her, where he answered evasively, "not really it was due to circumstances".'

'He seemed unhappy I was unable to explain his offending to him, and
requested to see a psychiatrist who was an expert in sexual offending.'

18          LE testified that on the occasion of a party at Orford relevant to the evidence of B, B had been drinking white wine, and that she took B to bed, observing her to vomit in the doorway of the bedroom and on the mattress on the floor. She had then remained with the Applicant in the kitchen until around 2 am, before they moved to the living room, where they stayed awake until around 4 am. The Applicant then reclined his couch and fell asleep, before she then covered the Applicant with a doona, tucking it in, where he remained until the next morning.

19          The Applicant's two records of interview provided some general confirmatory admissions as to the background asserted by A and B, but otherwise involved denials to specific allegations put to him."

9             In addition to the matters mentioned in the appellant's written submissions, the Crown also relied on evidence which the Crown asserted amounted to admissions by the appellant, including statements to Dr McDougall which are the subject of the appeal. The other admissions were summarised by the trial judge in his directions to the jury:

"The first admission relied upon by the State is a statement alleged – a comment alleged to have been made by [the appellant] to B which is at – in the transcript at page 87. Sorry, I have this now and you don't, but I'll give you the page references just in case you want to look at it. It was a discussion after the allegations had come to light. Actually, I'm not sure about that. She was asked – it was at Lutana. Was there a further discussion, she said:

'What was that discussion about?...... He and my mother had been fighting a little bit, and he was bringing up the idea of a divorce, and one night he took me out to the driveway, and he told me that if they did get a divorce I

10 No 5/2023

could come to live with him, and it wasn't about what he'd done, it was because it would be better for me to live with him rather than my mother.'

Now, the State says the reference to, 'It wasn't about what he'd done,' is an allusion to improper conduct. That you can be – that you can find that that's an admission of the sort of conduct that B is complaining about. The second admission relied upon by the State is page 121 of the transcript. It was in the evidence of KP. Here was asked – it arose in circumstances after this allegation had been made and she'd kicked him out of home.

'Did you have any communication with [the appellant] after you'd kicked him

out?......Yes.'

She remembered that it was Friday, 13 November 2015:

'On the night in question, I messaged him asking, was it just B or his daughter
[ ]? He sent me back a reply saying, "No, only B."'

And the State says that that's an implied admission that there was some conduct which related to B, as she was then. Only B. The third admission is relied upon by the State is the admission which is the subject of an exhibit. It's P1. It's the text message with JH. The evidence was that this was a text exchange between JH on 4 December 2015. My copy's a little – it's a dark copy, but it's – I think it's tolerably easy enough to read. Do you – I'm not sure whether you have a copy of this already. You do. JH says to him in a text:

'I just heard from K, and she said you ain't gonna hand yourself in, and if it does go to court you will deny everything. Well, I'm tell you that if you don't hand yourself in I'm coming for – starting with your work where I tell everyone what you've done as it – beat you within an inch of your life and if you try and run I'll find you.'

And so forth. Now, it's not what JH says that's relied upon by the State, because that's not evidence of the truth of what he says. It's the response which is the evidence. And it's alleged, not disputed, that the text message was sent by the accused to James Hooper sometime later, December 13:

'You know I should admire you J. You're the only that tells me how it is. Yes, you should fucking kill me just like [ ]. I can't hand myself in yet. Already tried but police can't do anything. I did forward messages on to K. I thought she had a right to know. I haven't discussed anything with K about pleading when it gets to court so she would have no idea.'

Now, that's a response to something that was said in the earlier text. The State says in light of the evidence that [ ], the brother, had been the subject of some unrelated sexual offending, that that is an admission by the accused that you're entitled to take into account that he also was guilty of some sort of sexual offending. That's the 25 inference that I understand the State to draw from that."

Dr McDougall – the contested evidence

10          Dr McDougall, a psychiatrist, was practising in the Glenorchy district from 2015 until early 2020. He consulted at the Adult Community Mental Health Service where he saw the appellant on 25 January 2016. In evidence he said his memory was vague as to how the appellant came to be referred to him, but he thought the appellant had been seen in the Royal Hobart Hospital in November 2015 where he was admitted briefly as a consequence of either a suicide attempt or suicidal thinking. Dr McDougall was unable to explain the delay between November 2015 and 25 January 2016.

11   As to the consultation on 25 January 2016, Dr McDougall gave the following evidence:

11 No 5/2023

"I will just ask you a couple of questions. Firstly, have you noted that the patient was saying, the patient being [the appellant], and under that you've described how he presents to you?......Yeah.

What did you write there?......Afterwards?

Yes, thank - well sorry, how - how did he present to you on the 25th January
2016?......He presents as 'irritable, surly, unshaven'.

Thank you. And then following that do you write an explanation about your discussions with [the appellant] and - and what was spoken of between the two of you?......Yes.

Can you tell us what you noted about that?......Did you want me to read out what I wrote?

Yes, thank you.......

Seemed to want to tell seemed to want me to tell him why he sexually

assaulted, 'groped', 'molested' his stepdaughter B -

And I've got an arrow indicating '19 years old':

However, he has not given me enough to go on to assist with this. I asked if he was sexually attracted to her, where he answered evasively, 'not really it was due to circumstances'.

Alright. Thank you. Just before we go onto the next bit, I will just ask you a couple of questions. You mentioned some quotation marks, which words are in quotation marks? ......The words 'groped', 'molested' and when he says 'not really it was due to

circumstances'.

Alright. When you note things in that way, why do you do that?......That - that's to - that's to indicate that it was a direct quote from a patient.

Alright. So you're noting the exact words he used?......And in psychiatry we often do that if - if we think that what they've said is important, we will sometimes quote directly, and then we use the quotation marks to indicate that.

Alright. Thank you. Did he go on to tell you anything else that you've noted in a - in a paragraph under that one you've just read to us? ......Oh I'm a general adult psychiatrist and I think he was unhappy with the service I was providing him because he - he wanted me to explain to him why he'd done what he was admitting to. So I think he wanted to see a forensic psychiatrist. So I've documented that in the next paragraph.

Alright. Can you let us know what you wrote please?......

He seemed unhappy I was unable to explain his offending to him and requested to see a psychiatrist who was an expert in sexual offending. I explained no such psychiatrist available - is available in the public service in Hobart and that usually such services would be court mandated.

Alright. Thank you. Is the other way - other than court mandated services could you attend a private psychiatrist is there was one available in forensic matters? ......Yes, I discussed this case with colleagues after this appointment and they put me onto the Forensic Clinic Service, which they thought would be helpful and I offered to refer him to that service in the next appointment.

Yes, and just while you're - while you're speaking about that, did [the appellant] give you any response when you offered that service to him at the next appoint? ......He was already seeing a psychologist, Peter Nelson -

12 No 5/2023

Yes.......- and he seemed to think that Peter Nelson had expertise in that area so he - he decided he didn't need to go to a forensic clinic.

Alright. Thank you. Just going back to the first consultation you had with [the appellant] on the 25th January 2016, and I won't go into significant detail here, but you - do you note your impressions of the patient when they're in - in a numbered form?......Yes, that's correct.

And in terms of [the appellant] did you note him to have a major depressive episode of mild to moderate severity? ......Yes.

And then did you also note that you would make those inquiries that you've just told us about, about an expert in the area of sexual offending? ......Yes, that - that was part of the management plan.

Yes, and also part - management plan. Did you prescribe some mediation directly related to what you diagnosed as a depressive episode of mild to moderate severity?........It was used as - when an antidepressant isn't working we sometimes

went with another medication. So there's some evidence that Lithium can help with when the antidepressant isn't working. So, I prescribed it for that reason. And, also because I thought [the appellant] may be a high-suicide risk and - and Lithium is known to reduce suicide risk. So, that's the other reason I chose Lithium

Alright. Thank you. And, then when you've chosen Lithium as a medication pathway, if I can use that term, does that then require you to monitor responses to that particular medication?........Yes, and it needs to go - go for a - I need to follow him up

and review whether - and how well he's tolerating the Lithium and whether he's responding to it. But, also initially on starting Lithium you need to do blood tests roughly weekly every five to seven days, just to check Lithium levels and to make sure that they're okay.

Alright. Thank you. Given that, did you then see [the appellant] again on the 11th of

February 2016 at 3.30pm?........Yes.

In terms of the impression that you made on that day, did you continue to note:-

Major depressive episode but on this occasion it was moderate severity.

?........Yes.

And, again following that particular consultation on the 11th of February 2016, did you again see [the appellant] on the 25th of February 2016?........That's right.

And, on that particular occasion did you note that:-

He seemed to be improved.

On that particular date?........Yes.

Were there - oh, sorry, was there a follow up appointment for the 7th of March 2016 but [the appellant] didn't attend on that day?........That's right.

And, then the clinic had made contact with him on the 1oth of March 2016, and you - he'd raised some queries. You attempted to call him back but weren't - weren't able to get in contact with him?........That's right.

…

XXN - MS BAUMELER: Yes, thank you, your Honour. Doctor can I just check that I've understood correctly, your impressions of [the appellant]? When you first saw him on the 25th of January you indicated that:

13 No 5/2023

He was having a major depressive episode that was of mild to moderate severity.

Is that right?........That's right.

And then, by the time that you then see him on the 11th of February that, if I describe it as escalated or, um, at least the 'mild' had disappeared from your assessment and he was now 'moderate' and that continued on the 25th of February though he was still described as 'moderate' there was some sign of improvement? ........Yeah. The mild to

moderate, it's a diagnosis of what - it's - it's talking about the whole episode. It's not necessarily talking about how they are right at that - that point in time. So, someone can have a moderate to severe depressive episode, you can be confident that that's there, but then when that responds to treatment, the diagnosis of them having had a moderate to severe episode doesn't go away, but you then just say it's remitted. So, you can comment, they still have a severe episode but it responded and by the time you see them you - they've had a severe episode and now in remission. But it doesn't mean you wouldn't then diagnose it as mild because the symptoms are mild later on after they have been treated - if that makes sense?

Maybe. In terms of your initial assessment that was mild to moderate? ......Yeah.

The - does the fact that·you then, on the next occasion, simply describe it as moderate meaning there was an escalation in the depressive episode or are they separate depressive episodes that you're seeing, or what does it mean?......Psychiatrists have

some leeway when describing the severity of a depressive episode. You - you need to
be in the right ballpark -

Yeah.......- after assessing the patient. Like if - you can be a bit unsure but I didn't think he was severely depressed.

Mm.......So the first time I saw him, I thought he had a mild to moderate episode range. But then when -

Mhm. ......- the second occasion I think I was just more confident that it - you know, mild is he's got a bit more than that going on I think -

Yeah, right.......- it was (indistinct word) episode.

Okay. Alright. So I guess, if I described it that knowledge or increased knowledge of a patient gives you greater confidence in what you're diagnosing, would - is that a fair summary? ......That's right.

Yeah, okay then. Now, in relation to [the appellant], you took notes on the 25th

January 2016, they were your-......No -

- first notes in relation to him?......Ah yes, that's right.

That's now, what, five years ago, have you actually any memory of [the appellant] himself? ......Oh, I've got a vague recollection of what he looks like.

Right. Okay. If it wasn't included in your notes, have you any recall of conversation with [the appellant]?...... Not - not in great detail I wouldn't say.

No. Okay. So, in terms of - you've indicated that the words 'groped' and 'molested' would have been his words because they're in inverted commas or in quotation marks - yes?......That's right.

Yes. Apart from that you've also indicated that he wasn't giving you a great deal to go on. I - I take it if there had of been further words, and I'll get to the- the other part in a quotation mark in a minute, but if there'd been further descriptive words you would have included those in that initial assessment? ......I think if he had volunteered my

information I would have put it in there.

14 No 5/2023

Yeah. Yeah, and the only other part that you have in quotation marks is when you asked about sexual attraction and he has indicated 'not really it was due to circumstances' - okay. Now, the - the note itself is a reference to his stepdaughter B, is that right?......It's in reference to B -

Yeah.......- as I've indicated her name there next to the notes.

Yes.......I - I'm - I don't know - I can't remember if she's the stepdaughter, you guys might know, but I - I don't know.

Well you've got it in your notes, haven't you?......I've got the name B - oh yeah, I have got it there, yeah, that's right, it would be her.

Okay. Alright. And then you've also got some information that she was nineteen years old, I take it?......Yes.

Now, if [the appellant] had of mentioned any other person, I take it, or that he had had any involvement in a sexual way with another person you would - written in your notes if he had have told you that?........That's right."

The objection

12 Prior to the commencement of the trial, counsel for the appellant had indicated to the trial judge that the appellant objected to the proposed evidence of Dr McDougall. It appears that there was a misunderstanding as to whether the Crown would open with respect to the evidence of Dr McDougall. In opening, the prosecutor told the jury that they would hear evidence that the accused "made admissions to sexual conduct involving B", and "particularly, he asked the doctor to tell him why he had sexually assaulted her". Following discussion after the opening, the issue of the admissibility was deferred until later in the day when, in the absence of the jury, counsel informed the trial judge that the objection was based on s 137 of the Evidence Act, together with discretionary exclusion on the basis that the prejudicial value outweighed the probative value. Counsel briefly mentioned the absence of evidence as to any substance the appellant might or might not have ingested prior to speaking with Dr McDougall.

13           After counsel for the appellant commenced submissions, a discussion occurred between counsel following which counsel for the appellant informed the trial judge that the issue might have to be left until early the next morning because the prosecutor had a disc containing material which counsel needed to examine. That material involved more than simply translating handwriting, and was likely to be relevant to the objection. A discussion occurred with the trial judge concerning the evidence the Crown intended to lead from Dr McDougall and the need for the Crown to prepare a proper proof of evidence. The trial judge mentioned the possibility of a Basha enquiry, or hearing evidence from Dr McDougall in the course of determining the objection. His Honour said he would leave those questions to counsel "to ponder", and it was agreed that no significant disadvantage arose from leaving the objection to a later time. Discussion occurred concerning the possibility of an application to discharge the jury if the evidence of Dr McDougall was disallowed.

14          At the conclusion of the discussion, counsel indicated that Dr McDougall would be giving evidence at 3.30pm the following day.

15          From the perspective of the trial judge, both counsel were agreeing that submissions concerning the admissibility of Dr McDougall's evidence could not proceed on 10 March 2021. Having observed there was nothing else he could usefully do on that day, to which counsel agreed, the trial judge adjourned the trial to 11 March 2021.

16           The following day, in answer to a question by the trial judge, counsel for the prosecution indicated a proof of evidence had been filed and a video-link to take the evidence of Dr McDougall

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had been arranged for 3.30pm. At that time, there was no mention of the appellant's objection to the
receipt of Dr McDougall's evidence.

17           Immediately after the jury returned to the court room, the trial judge informed the jury that a doctor would be giving evidence at 3.30pm via an audio-visual link. His Honour warned the jury that the evidence might not be finished by 4.00pm. Again, there was no mention of any objection to receipt of the evidence.

18           During the day, four witnesses were examined and cross-examined before counsel for the prosecution informed the trial judge that the next witness was Dr McDougall who was appearing via video-link. In the brief discussion that followed concerning setting up the link, no mention was made by either counsel of the appellant's objection to the evidence. Nor was that objection mentioned at any subsequent time through to the end of the trial and the delivery of the verdicts.

19           The issue of admissibility having been raised with the trial judge, but submissions being delayed while a proof of evidence was obtained, the trial judge was entitled to expect that if the objection was maintained following delivery of the proof of evidence, experienced counsel for the appellant would have raised the issue before Dr McDougall was called or, at the latest, immediately before the video-link was set up. There was no obligation on the trial judge to raise the issue. For all the trial judge knew, once the proof had been delivered, counsel had decided not to pursue the objection. In this context it should not be overlooked that counsel for the appellant was a very experienced counsel in the criminal jurisdiction.

Addresses

20           In closing submissions to the jury, counsel for the prosecution put to the jury that the accused made a number of admissions, including an admission that he was sexually attracted to B and had "groped"/"molested" B. Counsel submitted that any suggestion by counsel for the appellant that this was an admission to inadvertently grabbing B on the breasts on one occasion was "absolute nonsense".

21           Counsel for the appellant advanced a general proposition to the jury that they "might well be satisfied that [the appellant] did commit some indecent acts towards B", but such evidence was insufficient to amount to an admission that he committed the particular crimes charged.

22          Later in submissions, counsel accepted that there was "potential" for admissions by the appellant to B, KH, JH and Dr McDougall. Counsel said:

"I can certainly accept that you might well come to the conclusion that they are admissions in relation to sexual offending in relation to – to B, it still doesn't assist you in relation to these particular allegations that you need to consider and so, even though you might well determine that they are admissions that will get you nowhere if these actual events did not happen or you cannot find that these actual specific events did occur."

Directions to the jury

23           In relation to the evidence of B, the trial judge reminded the jury that in addition to the occasions charged in counts 4, 6, 8 and 9, B gave evidence about "other conduct which is uncharged". His Honour then explained that the prosecution was not charging a course of conduct, and such evidence was led to place the charged acts in context and to avoid the impression that B was speaking of isolated acts occurring without reason or circumstances linking them. His Honour spoke of avoiding artificiality and unreality. His Honour was careful to draw a distinction between the uncharged acts and the evidence led to prove these specific acts which were the subject of the charges in the indictment.

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24           The trial judge also gave directions concerning the use of the evidence of both complainants as evidence of a tendency to possess "a sexual interest in female children who were, effectively, members of [the appellant's] family, and that he had access to, and that he had a tendency to act on that sexual interest in those girls opportunistically and brazenly, … notwithstanding the real risk that he might be detected, found out."

25           Subsequently, the trial judge referred to the issue of admissions, and his Honour's directions concerning three of the admissions relied upon by the Crown are set out earlier in these reasons. As to Dr McDougall, the trial judge said:

"And the final admission relied upon by the State forms part of the evidence of Dr McDougal. You'll recall he gave evidence that he saw – he's the psychiatrist. He saw the accused on the 25th of January 2016. You'll find his evidence about this at page 166 of the transcript. Talking about the accused:

He presents as irritable, surly, unshaven.

And his notes record that – this, referring to the accused:

Seemed to want to tell – seemed to want to tell him why he sexually assaulted, 'groped', ' molested' his stepdaughter B. However, he has not given me enough to go on to assist with this. I asked if he was sexually attracted to her, where he answered evasively, 'Not really. It was due to circumstances.'

On the following page of the transcript, he said he recorded this:

He seemed unhappy I was unable to explain his offending to him and requested to see a psychiatrist who is an expert in sexual offending. I explained no such psychiatrist available – is available in the public service

…

And so forth. Now, the Crown relies upon those statements to Dr McDougal as again admissions of sexual offending against B – LH and asserts that it makes it easier for you to find him guilty. That statements of this nature would not have been made unless sexual misconduct of the nature you've heard about occurred.

Now, the defence urges you to exercise caution in respect of those statements. As I understand Ms Baumeler's arguments to you, it's that it might be open to you to find that other sexual offending occurred towards B – towards LH, but you cannot be satisfied that those admissions relate to the acts which are the subject of the particular allegations remaining in the indictment. And that the defence case is that when all of the evidence is taken into account, you cannot be satisfied that the – to the required criminal standard that those acts were perpetrated. That is, the acts in the indictment."

26   Finally as to the directions, at the very end of his remarks the trial judge added the following:

"And again, in relation to the admissions which the State alleges were made by the accused that you must focus on whether they were admissions of these charged acts, not other general sexual misconduct."

Admissibility of Dr McDougall

27 At trial, in the following exchange with the trial judge, counsel for the appellant clearly informed his Honour she was not suggesting the evidence of Dr McDougall was not relevant. Rather, she was seeking exclusion under s 137 of the Evidence Act because, in view of the vague nature of the statements said to amount to an admission, the danger of unfair prejudice outweighed the probative value:

"HIS HONOUR: What's the nature of the objection to the evidence?

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MS BAUMELER: That, the - that it would be impossible from the limited discussion that was had with the doctor and the limited notes that exist for the jury to form any conclusions as to what was actually being - if they accepted that it was an admission, what it was that the accused was admitting to.

HIS HONOUR: So what I'm - what I'm thinking about is whether or not sooner rather than later we can - I can hear the objection -

MS BAUMELER: Mm.

HIS HONOUR: - but what's the nature of the objection, is it a - is it a s 13 7 exclusion objection or something else?

MS BAUMELER: It - it would be a s 137 exclusion, yes. HIS HONOUR: Yeah.

MS BAUMELER: I would be asking your Honour to exercise your discretion that that evidence shouldn't be led on the trial.

HIS HONOUR: Because of the danger of unfair prejudice –

MS BAUMELER: Yes.

HIS HONOUR: - outweighs the probative value?

MS BAUMELER: Yes, yes, because of the vague nature of what is said to be an admission, yes, that's - that's it in a nutshell.

…

HIS HONOUR: Ms - Ms Baumeler is not submitting to me, I don't think, that they're not relevant.

MS BAUMELER: No."

28          The exchange to which I have referred occurred on the morning of 10 March 2021 immediately following the opening by the Crown prosecutor. Later in the day a further exchange occurred during which counsel for the appellant observed that there was no evidence as to substances the appellant might or might not have ingested before speaking to Dr McDougall, nor as to how lucid he was at that time:

"HIS HONOUR: Now, Ms Baumeler?

MS BAUMELER: Yes, thank you, your Honour. As previously indicated, the objection is on the basis of s 137 and your Honour's general discretion to exclude evidence that where its prejudicial value outweighs the - the probative value of essentially to use the old words, and there's a danger of unfair prejudice to the defendant. In my submission-

HIS HONOUR: I should ask you first, are you content for me to deal with this on the papers?

MS BAUMELER: I am your Honour. HIS HONOUR: Alright. Thank you.

MS BAUMELER: Yes, I think - I think we can. The - and the relevant pages are pages 44 to 47. Though the - the really relevant part is at that - that start of page 44.

HIS HONOUR: Yes.

MS BAUMELER: Firstly, as I understand it, these notes have come about as a result of a hospital admission by [the appellant] where clearly it was - it involved mental health services. And, as I understand it, it was if not a suicide attempt, then at least a - some medical event that bought him to hospital. So, the first issue, in my submission,

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that I have in relation to these notes is, there's no evidence at the moment as to what substances [the appellant] might or might not have ingested. And, the notes of themselves, and this is where I guess it is difficult to determine it on the papers, but the notes of themselves, certainly don't give any indication as to how lucid [the appellant] was, at the time, that he was spoken - speaking to the doctor.

DISCUSSION BETWEEN COUNSEL"

29          In summary, during the brief submissions before the trial judge concerning the admissibility of the evidence of Dr McDougall, the following points were made:

• The statement said to be an admission was of a "vague nature".

• There was no evidence as to substances the appellant might or might not have ingested before speaking with Dr McDougall, and no indication as to the appellant's state of lucidity at that time.

• It would be impossible for the jury to form any conclusions as to the occasion or occasions to which the appellant admitted.

30   In written submissions on the appeal, counsel for the appellant advanced the following

propositions:

• There was no evidence as to degree to which the reliability of the admissions allegedly made by the applicant to Dr McDougall was influenced by his health or prescribed medication.

• The question to be determined is the probative value of the evidence "in establishing both evidence of a guilty mind, and evidence that the guilty mind specifically related to a crime charged on the indictment in relation to B".

• "It is accepted" that the probative value as to a guilty mind was "relatively high", but as to the guilty mind specifically relating to a crime charged on the indictment, the probative value was "extremely low" as it was "not clear what event or events the applicant may have been referring to".

• The evidence was "significantly unfairly prejudicial" and in "a manner that could not be cured by direction".

• The danger of unfair prejudice arose because the evidence was of admissions "made by a man who had experienced an unknown form of psychiatric disturbance, who may or may not have been medicated." The degree to which "psychiatric disturbance and medication may have affected the applicant could not be ascertained".

• As a result, "the applicant would have been unable adequately to test the reliability of the alleged admissions through cross-examination". Further, "the jury would have been left with the speculative suggestion that the admissions could not be relied upon, but without any concrete evidence on which that suggestion could be based".

• There was a related danger of the jury attributing too much weight to the "alleged generalised admission, and concluding that it must have related in a direct sense (as opposed to a tendency sense) to a particular count on the complaint." In this way there was a real risk that the evidence would be "misused by the jury in some unfair way."

• The appellate court is in as good a position as the trial judge to determine the questions of admissibility and discretionary exclusion.

• Had a ruling been given by the trial judge, "it ought to have anticipated correctly that:

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(a)	the inability to cross-examine as to matters of reliability gave rise to an incurable prejudice, even by a strong direction;
(b)	as the only independent evidence led by the State, the jury was likely to allow it far greater influence in their deliberations, particularly in the assumption that it was an admission to particular charged conduct."

Discussion

31           The appellant has not led evidence to suggest that counsel for the appellant at trial overlooked pursuing the objection to the admissibility of Dr McDougall's evidence. The only reasonable conclusion available to this Court is that counsel made a deliberate decision not to pursue the objection.

32           In Hamilton v The Queen [2021] HCA 33, 394 ALR 194 the High Court was concerned with the failure of the trial judge in a sexual assault trial to give an anti-tendency direction. Trial counsel had not sought the direction. In a joint judgment, Keifel CJ, Keane and Steward JJ made observations about the significance of the conduct of defence counsel:

"49 A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act. The adversarial system does justice through the diligent exertions of competent counsel in coming to grips with the special circumstances of the particular case.

…

54 Within our system of justice, save for exceptional cases, 'parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue'. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen:

'[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice',

their Honours went on to say: 'The absence of an application for a direction may ...
tend against finding that that risk was present.'

55 The majority of the Court of Criminal Appeal were right to conclude that the failure of the appellant's counsel at trial to seek an anti-tendency direction was a deliberate decision based on the circumstance 'that he did not consider that such a direction was necessary' to ensure a fair trial of the appellant. Indeed, this is clearly the better view.

56 There is no reason to doubt the competence of defence counsel. Indeed, it may be said that he conducted his client's case with considerable success. He resisted, successfully, the Crown's tendency application. And, as has been seen, in the course of the trial judge's summing-up, when defence counsel was afforded the opportunity to consider whether further directions were required, he did not seek an anti-tendency direction in respect of the counts on the indictment but rather pressed – again successfully – his application for the Murray direction, which was ultimately given by the trial judge. In these circumstances, the suggestion that defence counsel failed to seek an anti-tendency direction as a result of oversight on his part is fanciful.

57 One can be confident that the appellant's counsel at trial did not seek an anti-tendency direction for the reason that he perceived that, in light of the directions that were given to the jury and the stark choice presented to the jury by the parties,

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there was little practical risk that the jury would reason to verdicts of guilty via the impermissible path of tendency reasoning. The Court of Criminal Appeal had no reason to reach a different assessment of that risk, and neither does this Court. While it is true that the rejection of the defence case of concoction would not mean, ipso facto, that the appellant was guilty on all ten counts, the straightforward path of reasoning by which the jury would accept the evidence of each complainant (and their mother) as honest and reliable beyond reasonable doubt was such as to render recourse to the circuitous path of tendency reasoning a theoretical risk only." (Footnotes omitted.)

33           As Edelman and Gleeson JJ observed in their dissenting judgment, while the failure of defence counsel to seek a particular direction "can affect an assessment of the relevant risk", such failure is "not determinative if the direction was required in order to avoid a perceptible risk of miscarriage of justice". In the matter under consideration, however, in the context of other "admissions", counsel sought to emphasise that the "admissions" were of a general nature and not specific to the incidents that were the subject of the charges. Counsel accepted that the statements were in the nature of "admissions".

34           It should also be noted that although counsel before the trial judge mentioned the absence of evidence concerning medication the appellant might have taken before speaking with Dr McDougall, and the absence of any indication as to the appellant's "lucidity" at that time, counsel did not endeavour to raise those topics with Dr McDougall. No attempt was made to elicit evidence affecting the reliability of the admission by reason of medication or the mental state of the appellant. Suggestions in this regard by counsel on the appeal amount to no more than speculation.

35           A "legitimate forensic choice" was made by counsel. Having raised the issue of Dr McDougall on one occasion, and the matter having been adjourned for counsel to discuss the issue and consider additional material, the trial judge cannot reasonably be criticised for not raising the issue again. The trial judge was entitled to assume that the issue had been resolved between counsel.

36           In addition, had the objection been maintained, almost inevitably the evidence would have been admitted. It was highly probative. The words of the appellant, written in quotes by Dr McDougall, amounted to an admission that he had "groped" and "molested" B. The appellant wanted Dr McDougall to tell him why he, the appellant, had sexually assaulted B.

37           The statements by the appellant to Dr McDougall provided strong support for the evidence of B as to the appellant's conduct, which included acts that can reasonably be described as "groping" and "molesting". The admission demonstrated a sexual interest in B, and a willingness to act on that interest.

38           In the particular circumstances under consideration, the probative value of the evidence plainly outweighed any potential for unfair prejudice. The risk of unfair prejudice was negligible. The jury were given clear and appropriate directions concerning the use of the evidence, including reminders as to the submissions by counsel for the appellant.

39   For these reasons, I would dismiss the appeal.