Murillo (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0258

ETHAN MURILLO (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name and the use of initials in place of the names of the complainant and other witnesses.

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JUDGES:	KAYE, T FORREST and OSBORN JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	13 March 2020
DATE OF ORDER:	13 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 68
JUDGMENT APPEALED FROM:	[2018] VCC 1547 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of five charges of indecent assault and three charges of incest – Prosecutor granted leave to lead misconduct evidence as context evidence – Witness cross-examined by prosecutor by leave under s 38 of the Evidence Act 2008 – Whether trial judge erred in admitting misconduct evidence – Whether trial judge erred in granting leave to cross-examine witness under s 38 – Cross-examination under s 38 not confined – Substantial miscarriage of justice – Breach of duty of fairness – Inflammatory language by prosecutor – Leave to appeal granted – Appeal allowed – Browne v Dunn (1893) 6 R 67; R v Hogan [2001] NSWCCA 292; Saddik v The Queen [2018] VSCA 249; Evidence Act 2008 ss 38, 41, 137, 192 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Victoria Legal Aid
For the Respondent	Ms M A Mahady with Mr P J Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant was charged on indictment with five counts of indecent assault, and three counts of incest. Following a trial in the County Court, he was convicted by the jury of each of those charges. The offences were alleged to have been committed by the applicant between February 1987 and December 1988 against his stepdaughter, PS, who was 11 or 12 years of age at the time. The applicant was sentenced to a total effective term of five years and eight months’ imprisonment, with a non-parole period of three years. He initially sought leave to appeal his conviction on three grounds, namely:

(1)the trial judge erred in allowing the prosecution to lead, as context evidence, misconduct evidence of the applicant being violent to, and in the presence of, PS;
(2)the trial judge erred in failing to give the jury a direction pursuant to s 32 of the Jury Directions Act 2015 relating to the risk that the evidence of PS may be unreliable on the basis of an honest but erroneous memory by her of the offences.

Subsequently, the applicant was granted leave to rely on two further related grounds, namely:

Ground 3A
The judge erred in granting leave to cross-examine under s 38(1) Evidence Act, in effect, at large.
Ground 3B
A substantial miscarriage of justice was occasioned by the treatment by the prosecutor of the witness LS in that:
(a)credibility evidence was adduced in circumstances where s 103(1) had not been satisfied;
(b)LS was cross-examined as to matters relevant only to her credit in circumstances where leave had not been granted to do so under s 38(3) Evidence Act;
(c)irrelevant and highly prejudicial evidence was adduced;
(d)there was a failure to comply with the rule in Browne v Dunn; and
(e)matters contained in the Crown opening to the jury were placed in issue by the Crown.

In support of ground 1, counsel for the applicant contended, first, that the judge erred in ruling that the prosecution had been entitled to lead the misconduct evidence, and, secondly, that in any event the misconduct evidence, adduced by the prosecution, went well beyond the evidence that was the subject of his Honour’s ruling. In the course of oral argument on this application, counsel for the respondent (neither of whom, it must be noted, appeared on behalf of the prosecution at the trial) conceded the latter point, namely, that the evidence of misconduct by the applicant, that was adduced at the trial by the prosecution, went well beyond the scope of the evidence that was the subject of the ruling of the judge. Counsel for the respondent further conceded that, as a consequence, the application for leave to appeal should be granted on ground 1, the appeal allowed, and a re-trial ordered. As I shall explain in the course of these reasons, the concession made by counsel for the respondent was both quite proper, and indeed entirely correct. However, counsel for the respondent did not concede or accept that none of the misconduct evidence, adduced at the trial, was admissible.

Based on the concessions by the respondent, after the completion of oral argument, we pronounced orders granting the applicant leave to appeal, allowing the appeal, and ordering that the charges against the applicant be retried. We also made orders releasing the applicant on bail.

Nevertheless, in view of the different positions taken by the applicant and the respondent respectively in relation to the admissibility of evidence of violence by the applicant to his family, we considered that it would be appropriate and indeed necessary that we should determine the question whether any of the evidence of that conduct by the applicant was properly admitted in the trial.

Counsel for the respondent did not concede that the application for leave to appeal should be allowed, and the appeal granted, on the amended grounds 3A and 3B. However, counsel did not advance any argument, in response to those grounds, beyond that which was contained in their written submissions. In view of the circumstances in which the witness LS was permitted to be cross-examined, and the manner in which she was cross-examined, by the prosecutor at the trial, we considered that we should also rule on the issues raised under those two grounds on this application.

On the other hand it was common ground between counsel, with which we agreed, that it would not be necessary for us to consider the issues raised under ground 2 of the application for leave to appeal. At the new trial, the question whether a direction should be given to the jury, pursuant to s 32 of the Jury Directions Act 2015, will necessarily depend on the nature and scope of the evidence as adduced at the trial.

The offending

PS was born in October 1976. Her sister, CS, was born in November 1974. In the late 1970s, after their father was sentenced to a term of imprisonment, their mother, LS, found herself unable to cope with two young children. As a result, in 1979, PS and CS were both made wards of the State. During the following seven years, they were placed in a number of different welfare homes and also with foster parents. During that time they were both subjected to physical and sexual abuse. In particular, between April 1984 and February 1985, while they were placed with foster parents, the foster father physically and sexually abused both of them. Subsequently, when they were placed in a girls’ home, PS suffered sexual abuse that was inflicted on her by other inmates of the home.

In the meantime, in 1980, LS met and married the applicant. In due course, they had two children, a daughter HS, and a son AS. In 1986, when they were living in Traralgon, PS and CS returned to live with them, first on weekends, and subsequently fulltime. At the time of the offending, PS had her own bedroom in the house, and CS slept in a bungalow in the backyard of the premises. LS was then employed performing shift work for a timber products company. It was alleged that the offending occurred on three occasions when she was not in the home.

On the first occasion, the offending was alleged to have been committed on one evening, when PS went to bed, and discovered underneath her pillow a note written by the applicant. The note asked her to go to his bedroom. PS put it back under her pillow, got into bed and pretended that she was asleep. A couple of minutes later, the applicant entered her bedroom and shook her. He asked her why she had not complied with his note and come to his bedroom. PS said she had not seen the note. She looked under her pillow, pretended to find the note, and followed the applicant to his bedroom. There she handed him the note, which he burnt with a cigarette lighter. He told her that she was not to tell anyone about it. The applicant then removed his dressing gown so that he was naked. He requested PS to undress, and she removed her pyjamas. He then took PS’s hand, put it on his penis, and made her stroke it (charge 1: indecent assault). The applicant then requested PS to suck his penis. He pushed her head towards his lap and inserted his penis into her mouth (charge 2: incest). After a few minutes he let go of her head. He told her to get dressed and return to her bedroom, which she did.

The second occasion, of the offending, occurred again in the evening about one week later. On that occasion, PS discovered another note from the applicant under her pillow requesting that she go to his bedroom. PS complied with the note and went to the applicant’s bedroom, where she saw that the applicant was naked. She handed him the note which he burnt. He said that if there was no note, there was no evidence that anything had happened. The applicant told PS to get undressed. While she was doing so, he told her to hurry up. After she had undressed, the applicant sat behind her and started to kiss her neck. He then turned her around, kissed her, and played with her breasts (charge 3: indecent assault). The applicant then said that he wanted to try something new. He told her to lie down on the bed and spread her legs. PS complied. The applicant commenced to lick her vagina (charge 5: indecent assault). When he had finished doing so, he put his fingers inside her vagina (charge 6: indecent assault). The applicant then asked PS if she would like to suck his penis. When PS refused, the applicant pushed PS’s head down and forced his penis into her mouth (charge 4: incest). PS gagged on it, and told the applicant that it tasted disgusting. Following that, PS got dressed and returned to her bedroom.

The third occasion of the offending occurred on the next night. PS found another note from the applicant telling her to go to the applicant’s room. When she entered the bedroom, he burnt the note, and told her to get undressed, which she did. The applicant then said that he wanted to try something different. He laid PS down, and inserted a couple of his fingers inside her vagina (charge 8: indecent assault). He then got on top of PS and pushed his penis towards her vagina. In doing so, he penetrated the outer lips of her vagina (charge 9: incest). PS responded by crying. She told the applicant that if he did not cease, she would scream. After some time, the applicant told her to get dressed and she returned to her bedroom.

On the following day, while PS was talking with a friend, SC, at lunchtime at school, she started to cry. After SC pressed her to find out what was wrong, PS told her what had occurred. Subsequently, the school principal learned of the allegations, and called the police. On the same evening, the police attended the applicant’s house, and PS made a general disclosure to them of sexual assault by the applicant. However, after speaking to LS, PS retracted the allegations and the police did not further investigate them. Subsequently, in August 2015, PS made a complaint to the police, and she made a formal statement on 22 August 2015.

Ground 1 — pre-trial arguments and ruling

Ground 1 is directed to the ruling by the judge, before the commencement of the trial, permitting the prosecution to lead evidence from PS and CS that the applicant had been violent to, and in the presence of, each of them.

Before the commencement of the trial, the prosecution filed an amended outline of its opening, foreshadowing that it intended to call evidence by PS that the applicant had been regularly violent to her, particularly when he was intoxicated, so that she was terrified of him. Counsel on behalf of the applicant objected to the admissibility of that evidence. The prosecutor contended that the evidence was relevant and admissible, as ‘context evidence’, for three reasons. First, it was submitted, the evidence would explain the complainant’s conduct in complying with the applicant’s demands when failing to complain about them. Secondly, the evidence was relevant to explain the applicant’s conduct or state of mind, and, in particular, to explain why the applicant had felt able to act in a particularly brazen manner. The prosecutor also sought to rely on a third basis of admissibility, namely, that the evidence was relevant to prevent the jury forming a false impression that the complainant’s allegations came ‘out of the blue’. However, in discussion with the judge, the prosecutor conceded that that consideration was not relevant in the present case.

Counsel for the applicant objected to the evidence on the ground that it had limited probative value. He contended, the issue in the trial would be whether the charged acts had occurred, and not whether the complainant had consented to them. Counsel told the judge that the issue of the compliance by PS with the demands of the applicant was ‘unlikely to be a matter of much contention in the trial’. Counsel submitted that if the evidence was admissible, it could be led in a limited way, by being confined to a leading question by the prosecutor that the applicant had physically disciplined PS on occasions, which would be sufficient to explain the conduct of PS in complying, without protest, with the applicant’s demands. Counsel observed that if the complainant were challenged, in cross-examination, on that basis, then that would open re-examination, so that he was aware of ‘the risks of going down that track’. Counsel contended that, on the other hand, if the evidence foreshadowed by the prosecution were put before the jury, it would have a substantial prejudicial effect that would outweigh any probative value it might have.

At the conclusion of argument, the judge ruled that the evidence was admissible.[2] His Honour expressed the view that the evidence had significant probative value, to explain why the complainant chose not to resist the applicant, why she did not complain about the conduct to her mother, and why she complied with the requests by the applicant to attend his bedroom.[3] His Honour considered that there were a number of authorities supporting the two bases upon which the prosecution sought to adduce the evidence,[4] including R v Loguancio,[5] R v Josifoski[6] and KTR v The Queen.[7] His Honour further considered that the probative value of the evidence was not outweighed by the risk of unfair prejudice to the applicant. He noted that the prosecution did not intend to lead evidence of a ‘wholesale reign of violence’ by the applicant, but that it would be confined to evidence of ‘general events prior to the alleged events’.[8] His Honour considered that the risk of unfair prejudice to the applicant could be ameliorated by appropriate directions to the jury.[9]
[2]DPP v [Murillo (a pseudonym)] (County Court of Victoria, Judge Murphy, 31 August 2018) (‘Ruling’).
[3]Ibid [12].
[4]Ibid [14]–[19].
[5](2000) 1 VR 235; [2000] VSCA 33.
[6][1997] 2 VR 68.
[7][2010] NSWCCA 271.
[8]Ruling [22].
[9]Ibid [23].

Ground 1 — the evidence

PS was the first witness called in the trial. She gave evidence as to her experiences while in State care, and as to the physical and sexual abuse to which she had been subjected during that period. She said that the incidents, in which the offending occurred, took place while she was in Grade 6. She said that before those incidents, she had witnessed violence by the applicant against her, against her sister and against her mother. In particular, the applicant would ‘backhand’ her generally when he had been drinking. The applicant struck her on a number of occasions. As a result, she had suffered bruising. PS said that her mother saw it happen on more than one occasion, but that she did not intervene. PS also said that she herself witnessed the applicant being violent to her brother AS, who was five or six years of age. Whenever AS did something that displeased the applicant, such as if he stuttered, the applicant would ‘belt him’ for it.

PS said that although she never saw the applicant being violent to her mother, she could hear ‘the yelling and the screaming’, and she would then see her mother with a black eye or half her face swollen. PS said, in her evidence, that as a result of the applicant’s violence, she was very scared of him and she did not wish to be there. She also gave evidence that the more the applicant drank, the angrier he became, and the easier it was to make him angry.

PS gave evidence as to the circumstances in which she had come to tell her friend, SC, about the applicant’s abuse of her. As a result of that disclosure, SC told the school principal, and the police attended their home. PS said that she repeated to the police what she had told SC about the abuse. The police then told LS what PS had said. LS took PS into her bedroom. She told PS that she had two choices. If PS continued with what she was saying (about the abuse), LS would find the worst home that PS had been in, and return her to that home. Alternatively, PS could tell the police that she had been lying. PS said that she was petrified. She said she was so worried that if she did comply with her mother’s command, she would ‘cop another beating because I had come up with this’. She was also petrified that her mother was going to return her to the foster home. She thought that she could not win, whichever choice she made. Accordingly, she told the police that she was lying and that she had made it all up.

In her evidence, PS said that she did not do anything further about the applicant’s conduct until 2015. At that time, she was suffering from emotional strain and mental ill health. She spoke to her sister CS on the telephone and told her that she could not cope and was contemplating suicide. As a result, she stayed with CS in her home for a week. During that time she confided in CS what had occurred. CS took her to the police station and she made a formal statement.

CS also gave evidence concerning the applicant’s violent conduct. When asked to describe the applicant ‘in terms of his moods’, she said that he was angry, aggressive and violent. In particular, the applicant was violent to her, and on some of those times LS was present. CS was unable to say whether PS saw the applicant being violent to her. CS also observed the applicant being violent to other members of the family. He used to punch LS, so that she would be on the floor and he would be hitting her and punching her. He also would beat AS because he stuttered. CS said that she saw PS being picked up and thrown down a hallway and then punched by the applicant one day when he came home from the hotel intoxicated and angry. On that occasion, LS and she were in the kitchen with two of LS’s friends. The applicant ‘went after’ PS from the kitchen, picked her up, and threw or pushed her down the hallway towards the bedroom. CS said that there were also other such incidents. The applicant and LS would drink alcohol all day and night, and the applicant’s mood would suddenly change from being happy to being angry.

LS was called to give evidence by the prosecution. She said that she never saw the applicant being violent to PS or CS. She said that the applicant did smack AS once, but he never hit CS or PS or did anything violent to them. She said that he treated them as his own children. She said that she had given the applicant permission to smack her children if they needed it, and he did so once or twice when it was necessary to do so. However, he was never violent or aggressive to them. LS said that the applicant never struck her or was violent to her.

LS gave evidence of the occasion when PS was in Grade 5, and the police attended her home. The police told her that PS had accused the applicant of sexual assault. When LS questioned the applicant about it, he denied the allegation. In her evidence, LS denied that she spoke to PS in her bedroom, and threatened her that if she did not tell the police that she was lying, she would be returned to the worst foster home that she had lived in. LS said that she took PS into her own (PS’s) bedroom and asked her why she did not come to her if she had a problem. PS responded, ‘I don’t know’.

The prosecutor was given leave to cross-examine LS under s 38 of the Evidence Act 2008. The cross-examination was wide-ranging, and is the subject of grounds 3A and 3B. In the course of it, LS again denied that the applicant had been violent to herself or to her daughters.

Judge’s directions

After the completion of openings, and before evidence was called, the judge gave the jury a specific direction about the evidence, foreshadowed by the prosecutor in his opening, that the applicant had engaged in violence against PS, AS and LS. The judge told the jury that the evidence would be called in order to give the jury the ‘big picture of the relationship’ between PS and other members of the family including the applicant. In particular, it would help to explain why PS would submit to the conduct of the applicant, to explain why the applicant thought he could ‘get away’ with that conduct, and to explain why PS did not complain about it at the time. The judge told the jury that it must keep the evidence in perspective, as it was only one part of the prosecution case. He reminded the jury that it must not decide the case on feelings of sympathy or prejudice arising from those ‘alleged incidents’. He reiterated that the evidence was led only for the limited purpose of explaining why the complainant would submit to the applicant’s demands and why she did not complain.

Subsequently, after CS gave evidence, the judge gave a similar direction to the jury. The judge reminded the jury that the evidence was led to ‘provide part of the big picture’ of the relationship between the parties, and in order to explain ‘the state of mind of the complainant and why she might not have complained at the time’. He directed the jury that it was not to use the evidence ‘to blacken the accused man for all things’. He reminded the jury that it was not to decide the case on the basis of sympathy or prejudice arising from what CS had said about him.

In his charge to the jury, the judge substantially repeated the direction that he gave at the commencement of the trial. He repeated that the evidence was relevant because it put the relationship between the applicant and PS ‘in its full context’. In particular, the prosecution had submitted that the evidence might demonstrate why PS might have submitted to the applicant’s demands or did not complain about his alleged offending, and that it might also show the applicant’s state of mind such that ‘he felt able to act in a brazen manner’. He again instructed the jury that it must keep the evidence in perspective, and not decide the case on the basis of sympathy or prejudice.

Ground 1 — submissions

In support of ground 1, counsel for the applicant, in a thorough and well-constructed submission, contended that the evidence of previous acts of violence by the applicant to PS and to her family were not relevant to any issue in the trial. Further, it was submitted, the evidence adduced on behalf of the prosecutor at the trial in respect of those matters travelled well beyond the bounds of the evidence which the judge had ruled to be admissible. It was further contended that the misconduct evidence was particularly prejudicial in the context of the trial, and that the prejudice occasioned to the applicant, by its admission, substantially outweighed any probative value it might have.

Counsel commenced by noting that the prosecutor had sought to adduce the evidence, and the judge had admitted it, on the basis that it was relevant to three facts in issue in the trial, namely, first, to explain why PS complied with the demands made on her by the applicant, secondly, to explain why she did not make any contemporaneous complaint about the conduct of the applicant, and, thirdly, to explain why the applicant felt at liberty to act in such a brazen manner without any fear of his conduct being revealed. Counsel contended that on an appropriate analysis of the evidence, given by PS at trial, and foreshadowed by the prosecution, the evidence was not relevant to any of those three purposes. First, counsel noted the evidence given by PS that, in the course of each of the incidents, she either resisted or was not compliant with some of the demands of the applicant. Secondly, PS did contemporaneously complain, to her friend, SC, about the conduct of the applicant. Thirdly, there was nothing brazen about the conduct of the applicant. Rather, the conduct in which he is alleged to have engaged, was conducted while the younger children in the house were asleep, while CS was in the bungalow at the rear of the premises, and the children’s mother, LS, was working on night shift. Counsel further submitted that, when properly analysed, PS did not attribute her compliance with the demands made on her by the applicant, or the fact that she did not complain to LS concerning the applicant’s conduct, to being fearful of the applicant being violent to her.

Counsel for the applicant further submitted that, in any event, the evidence, that was adduced by the prosecutor at trial, went well beyond the limits of the evidence that were the basis of the ruling made by the judge. As I have noted, counsel for the respondent has correctly accepted that the application for leave to appeal should be granted, and the appeal allowed, on that basis. For reasons that follow, it is clear that that concession was both quite proper, and indeed it was necessarily correct.

Ground 1 — analysis and conclusions

As I shall discuss a little later in these reasons, I accept the submission by counsel for the applicant, that the evidence of physical violence by the applicant to PS or members of her family was not relevant for any of the three purposes relied on by the prosecution, and on which the judge ruled that the evidence was admissible. However, assuming, at this stage, that some evidence of misconduct by the applicant might have been relevant to any of those three purposes — to explain the complainant’s compliance with the demands of the applicant, to explain why she did not complain to her mother about the applicant’s conduct, or to explain why the applicant behaved in a ‘brazen manner’ — the evidence that was adduced at trial travelled well beyond that which was the basis of the judge’s ruling, and that which was necessary to fulfil any of those three purposes.

As counsel for the applicant pointed out, in the course of pre-trial argument, the prosecutor stated to the judge that he would only adduce evidence as to acts of violence by the applicant ‘in general’, and that he would not adduce evidence as to specific incidents of violence. He told the judge that there was ‘no reason for [his] purposes to particularise it or over-emphasise it’. It was in that context that the judge gave leave, on the basis that the evidence would be of ‘general events prior to the alleged events’.

It is clear, from the foregoing summary of the evidence given by the complainant and her sister CS, that the evidence given by those two witnesses, as to acts of violence by the applicant towards them, or witnessed by them, very substantially exceeded the limited evidence foreshadowed by the prosecutor, and on which the judge had based his ruling. On any view, the evidence of acts of violence by the applicant to CS, AS and LS, were not relevant for any of the purposes outlined by the prosecution, and on which the judge gave leave. Further, the evidence that was adduced in the trial of violence by the applicant towards PS, and CS’s evidence as to a particular episode of violence by the applicant to PS, included graphic evidence of specific incidents, that went well beyond the bases on which the misconduct evidence had been ruled to be admissible.

On this application, counsel for the respondent conceded that, subject to one exception, all of the evidence called by the prosecution as to acts of violence by the applicant was inadmissible, and was not necessary to fulfil any of the three purposes for which the prosecution had sought leave to lead acts of misconduct by the applicant. That single exception was contained in five lines of the transcript at the trial. Specifically, it was confined to the following evidence:

And again, I’ll lead you to some extent on this, particularly in relation to the violence against you. Do you say that on occasions, the accused would back-hand you? – – – Yes.
…
Anyway, you remember being struck a number of time — on a number of occasions, different occasions? – – – Yes.[10]

[10]Transcript of Proceedings, DPP v Murillo (a pseudonym) (County Court of Victoria, CR-17-01468, Judge Murphy, 3 September 2018) 90.28–31, 91.8–9.

The narrow and limited scope of that evidence stands in stark contrast to the evidence of violence, allegedly perpetrated by the applicant, that was adduced on behalf of the prosecution at trial. It illustrates the extent to which that evidence was, on any view, irrelevant, and unnecessary for any of the three purposes on which leave had been granted to the prosecutor to adduce evidence of acts of violence by the applicant.

The evidence that was adduced at trial was highly prejudicial to the right of the applicant to a fair trial. That proposition was not gainsaid, at all, by counsel for the respondent on this application. It resulted in an unfair trial, and as a consequence it has been necessary to order a re-trial.

The prejudice occasioned to the applicant was exacerbated by the inflammatory manner in which the prosecutor referred to the evidence in his final address to the jury. I shall return, later, to this aspect of the case. It is sufficient to note that, at an early stage in his final address, the prosecutor portrayed PS as a frightened little girl who was:

Frightened by the drunken, violent rages of an alcoholic stepfather.[11]

[11]Transcript of Proceedings, DPP v Murillo (a pseudonym) (County Court of Victoria, CR-17-01468, Judge Murphy, 5 September 2018) 275.29–30 (A Moore).

Later in his address, the prosecutor said (somewhat disingenuously) about the applicant:

He’s not on trial, ladies and gentlemen, for being a thug. A child-basher, a wife-basher, a domestic thug. That’s not the charges. But the environment, the big picture, is vital, the Crown says. Because it explains things like why [PS] didn’t feel able to complain, why she thought that her mother just wouldn’t believe her, why he thought that he could get away with it.[12]

[12]Ibid 285.11–18.

The prosecutor then followed that passage by noting that both PS and CS ‘gave evidence of this pattern of violence, usually fuelled by alcohol on the part of the accused’.[13] He then proceeded to quote in some detail directly from the evidence of PS about the violence to her, to CS, to LS, and to AS.
[13]Ibid 285.22–24.

It is for those reasons that the concession by counsel for the respondent was entirely correct. In short, at the least, a most substantial part of the evidence, concerning violent conduct of the applicant to PS and her family, was irrelevant and inadmissible. By its nature, it was highly prejudicial. That prejudice was compounded, substantially, by the manner in which it was used by the prosecutor in his final address, and by the language and tone in which he referred to it. The conclusion is inescapable that as a consequence, the applicant was deprived of his right of a fair trial, and a substantial miscarriage of justice occurred.

That conclusion leaves open the question whether the evidence given by PS, as to the applicant backhanding her, was relevant at the trial. For the reasons that follow, I consider that it was irrelevant and inadmissible.

As I have noted, but for the purpose of clarity it is worth repeating, the prosecutor was granted leave to adduce evidence of violent acts by the applicant at trial, on the basis that it was relevant to explain three matters at trial, namely, first, the compliance by PS with the demands made on her by the applicant, secondly, the fact that PS did not make any contemporaneous complaint about the applicant’s conduct to her, and thirdly, why the applicant felt free to behave in such a brazen way without fear that his conduct to PS might be revealed. On analysis, the evidence, as to the acts of violence by the applicant, was not relevant for any of those three purposes.

The evidence, as to acts of violence by the applicant, was not relevant to the first purpose, to explain why PS complied with his demands, for two reasons. First, PS did not give evidence that she complied with the demands made on her by the applicant because she was in physical fear of him. No evidence, to that effect, was given by PS at trial. Secondly, as pointed out by counsel for the applicant, in fact PS was not fully compliant with the demands made on her by the applicant. In the first incident, PS hid the note that she received from the applicant, and pretended that she did not see it. The two acts of conduct, that constituted charge 1 and charge 2, did not involve compliance by her at all. Charge 1 involved the applicant taking PS’s hand and putting it on his penis. In respect of charge 2, PS did not comply with the request made by him. Rather, the applicant pushed her head towards his lap and committed the act that was the subject of that charge. That act only ceased when the applicant let go of PS’s head. In respect of the second incident, while PS complied with the note that the applicant left for her, and went to the applicant’s bedroom, she tarried while undressing at the direction of the applicant, and was told to hurry up. PS refused to comply with the applicant’s request that preceded charge 4 (incest), and the applicant forced PS’s head down and forced his penis into her mouth. On the third occasion of offending, when the applicant commenced the act which constituted charge 9, PS commenced to cry, and she told the applicant that if he did not cease, she would scream.

The second basis, for the admission of the evidence of the acts of violence by the applicant, was to explain the lack of complaint by PS concerning the conduct of the applicant. That basis was not made out. First, the offending occurred over a period of a little over one week. The time period between the first and second incidents was about one week, and the third incident occurred one day after the second incident. On the day after the third incident, PS did make a complaint, to her friend, SC, at lunch time. It was that complaint that culminated in the visit to the applicant’s home by police. Thus, as counsel for the applicant has pointed out, this was not a case of repeated offending over a substantial period of time, without any complaint from the complainant.

Further, it is not clear from the evidence given by PS that, during that short period, she refrained from complaining to her mother, because she was fearful that, if she did so, the applicant would be violent towards her. The evidence given by PS, relating to that matter, was, at best ambiguous, and did not support the proposition relied on by the prosecution.

After describing the first incident, the prosecutor asked PS the following question, and PS responded in the following manner:

And how did you feel about him in terms of telling your mother, for example? – – – I was too scared to. Like, with all the violence and the hitting and the yelling, I — I’d known it my whole life and I just — I couldn’t go through it again, so I — it was just easier for me to shut my mouth and not say anything and hope that he would just stop.[14]

[14]Transcript of Proceedings, DPP v Murillo (a pseudonym) (County Court of Victoria, CR-17-01468, Judge Murphy, 3 September 2018) 97.6–11.

Pausing there, that evidence was unspecific, and vague. PS had given evidence of being subjected to violence while she was in foster care, and while she was in State care. In the above passage in her evidence, she described the ‘violence and the hitting and the yelling’ that she had known for ‘my whole life’. That evidence, of itself, provided little explanation, and certainly at best an ambiguous one, for the fact that the complainant did not immediately speak to her mother about what had occurred in the first incident.

After PS had described the third incident, the prosecutor returned to the same line of questioning, and asked PS the following questions, to which she responded as follows:

Now did you tell your mother about those incidents at that time? – – – No.
Why was that? – – – Because I didn’t trust her, like, after all the abuse that I’d already been through, all the violence that I’d already been through and she did nothing then. So I just didn’t believe that she was going to do anything now and all the other adults that I’d known through my life, not one of them had protected me. So I couldn’t trust anybody.[15]

[15]Ibid 105.25–31, 106.1–2.

In that passage, PS did not state that she had refrained from telling her mother of the three incidents, because she was fearful of being subjected to violence at the hands of the applicant. Rather, she stated that because she had been subjected to violence and abuse throughout her life, and her mother had done nothing to protect her, she had no expectation that her mother would protect her against the applicant’s sexual assaults of her.

In one further passage, the complainant did refer to the violence inflicted on her by the applicant, but she did not give it as a reason for not complaining to her mother about his sexual abuse of her. In the evidence given by PS, as to the complaint that she made to her school friend SC, PS described what occurred in the bedroom when she spoke to her mother. It will be recalled that, according to PS, LS told her that if she persisted with the complaint, she would be returned to the worst home that LS could find. PS then was asked how she felt about that. In her evidence she said that she was petrified. She said

I was so worried that if I didn’t go ahead with it that I was gonna cop another beating because I had come up with this, and I had told them that. But then I was petrified if I did go ahead and tell them what he had done, then she was going to put me back into the home and I was going to get it worse there, than what I had it, was where I was. So to me, I felt I couldn’t win … [16]

[16]Ibid 107.14–21.

In that passage, PS in fact stated that she was concerned that if she did not persist with the complaint, she would be subject to a beating at the hands of the applicant. That is, she did not state that she had desisted from making a complaint, or that she withdrew the complaint, because of physical fear of the applicant.

The comment by PS, that she was concerned that if she did not go ahead with her complaint she would suffer another beating, did not explain why she did retract her complaint. Apart from contributing to her mixed feelings at the time, it was irrelevant to the issue as to why she withdrew her complaint to the police. The fact that it was, in some way, context or relationship evidence, is not to the point. Evidence of context or relationship is only admissible if it is relevant and logically probative. The relevant, and probative, part of the evidence given by PS, that I set out in the passage above, is that PS was ‘petrified’ that if she continued with her complaint, LS would put her back into the home and that she was ‘going to get it worse there than what I had it’. In view of the traumatic experiences suffered by PS while in State care and in foster homes, the explanation given by her, as to why she withdrew the complaint, needed no further elaboration.

Thus, the fact that the complainant was concerned that she would receive another beating, if she did not go ahead with the complaint, did not have any probative value, or add to the credibility of her explanation why she retracted it. On the other hand, the evidence of the applicant backhanding his eleven year old step-daughter, who had recently come out of State care, would have had a quite substantial prejudicial effect, particularly in light of the sympathy that the jury must have felt for PS arising from the experiences that she had endured while in State care.

As a further matter, in respect of the first two bases relied on for the admissibility of the evidence of violence by the applicant, it is important to note that, from the outset, counsel who appeared for the applicant at trial had disavowed challenging PS’s evidence on the issue of her compliance with the demands made on her by the applicant, or on the basis of the fact that she did not complain to her mother for the period of one week in which the offending occurred. Counsel for the applicant was faithful to that assurance, by not addressing either of those two issues, at all, in cross-examination. No doubt, if counsel had addressed either of those two issues in cross-examination, it might have enlivened the admissibility of the type of evidence now submitted by counsel for the respondent to be admissible, namely, as to the violence perpetrated towards her by the applicant. However, that issue was never foreshadowed, or agitated, for the duration of the trial.

No doubt there might be some cases in which evidence of acts of violence by an accused person to a complainant might be relevant and admissible, notwithstanding that the issues as to the complainant’s compliance with demands made by an accused person, or the lack of complaint by the complainant, are not specifically raised at trial.[17] However, it is plain that this was not such a case. At the risk of repetition, PS was not entirely compliant with the demands made on her by the applicant. Further, given PS’s experiences while in State care and foster care, it is improbable that a jury would be concerned with the issues of compliance and lack of immediate complaint. After what must be described as a traumatic upbringing in State and foster care, PS had only recently returned home, when the alleged acts occurred. A jury would well understand why, in those circumstances, PS might have been partially compliant with the applicant’s demands, and might not have made immediate complaint to her mother.
[17]Cf KTR v The Queen [2010] NSWCCA 271.

Finally, as contended by counsel for the applicant, I do not accept that a jury would consider the applicant’s conduct in the case to be particularly brazen, such as to make it improbable that he acted in the manner alleged by PS. As counsel for the applicant has pointed out, each of the three incidents occurred at night, when PS’s elder sister CS was in her bedroom in the bungalow at the rear of the premises, the two younger children were asleep, and LS was at work. The conduct alleged against the applicant could hardly be described as brazen in those circumstances. It is very doubtful that a jury would consider that the conduct, alleged against the applicant, was improbable on the basis that he had taken some inexplicable risk in perpetrating it.

I should add to the foregoing that if, contrary to the conclusion that I have just expressed, the limited evidence of the applicant backhanding PS was admissible (as contended by the respondent), the evidence was relevant, at most, to a peripheral issue which was not enlivened at the trial. Accordingly, its probative value was slight. On the other hand, plainly, the admission of evidence that the applicant had been engaging in acts of violence against PS would be particularly prejudicial in the context of the allegations against him. I do not consider that that prejudice could be sufficiently offset by directions to the jury, such as those given by the judge in the trial. Accordingly, I would exclude that evidence (if it was at all relevant) pursuant to s 137 of the Evidence Act.

For those reasons, the applicant has made out ground 1 of the application for leave to appeal. As conceded by counsel for the respondent, the evidence adduced by the prosecution at trial went well beyond that which was necessary to fulfil the three purposes for which it was purported to be adduced, and on which leave was granted by the trial judge to adduce such evidence. Further, the judge erred in ruling that any of the misconduct evidence relied on by the prosecution was admissible. The evidence that was adduced was highly prejudicial to the right of the applicant to a fair trial. That prejudice was, as I have observed, exacerbated by the extent of the evidence led, and by the inflammatory and inappropriate manner in which it was relied on by the prosecutor in his final address. For that reason, the application for leave to appeal on ground 1 should be granted, and the appeal allowed.

Ground 2

Ground 2 concerns the rejection, by the judge, of the submission made on behalf of the applicant at trial, that he should give the jury a direction that the evidence of PS might be unreliable, pursuant to s 32 of the Jury Directions Act.

As mentioned, it was common ground between the parties that it is not necessary, and indeed not desirable, that we consider the matters raised under ground 2.

Ground 3A and Ground 3B

The matters, raised by the applicant under ground 3A and ground 3B, arise from the cross-examination undertaken by prosecutor of LS, with the leave of the judge, pursuant to s 38(1) of the Evidence Act.

In order to consider the issues raised under ground 3A and ground 3B, it is necessary, first, to outline the circumstances in which the prosecutor was granted leave to cross-examine LS pursuant to s 38(1) of the Evidence Act, and to set out, in some detail, the nature and scope of the cross-examination that was undertaken by the prosecutor of LS.

As already noted, when LS was called as a witness, she gave evidence as to two principal topics. First, LS stated that on no occasion was the applicant violent or aggressive to PS, AS or herself. Secondly, LS gave evidence concerning the circumstances of the complaint, made by PS to the police, in about 1988. It was at that point that the prosecutor applied to the judge for leave to cross-examine LS under s 38 of the Evidence Act. Counsel for the applicant, at trial, conceded that the evidence given by LS, concerning the latter matter, was unfavourable to the prosecution, so that the prosecutor ought to have leave to cross-examine LS on that topic. In response, the prosecutor also sought leave to also cross-examine LS on her denial that the applicant had been violent to her and her children. Counsel for the applicant responded that the cross-examination should be limited only to the evidence of LS as to the conversation that she had with PS after PS had made a complaint to police in 1988. He submitted that if the prosecutor were permitted to cross-examine LS on the issue of whether the applicant had been violent, that might overshadow the real issues in the trial, and create an unfairness to the applicant.

The judge then ruled that notwithstanding that consideration, the prosecutor ought to be permitted to cross-examine LS on that topic. His Honour stated that the prosecutor:

[is] entitled to do that and he hasn’t really opened up a whole reign of terror type argument which was what I cautioned against in the original rulings. So I’ll allow him to do it.[18]

[18]Transcript of Proceedings, DPP v Murillo (a pseudonym) (County Court of Victoria, CR-17-01468, Judge Murphy, 4 September 2018) 201.26–29.

Having been given leave, the prosecutor then embarked on a cross-examination of LS, which is contained in some eleven pages of transcript.

The prosecutor commenced the cross-examination by focusing on the belief by LS in the applicant’s innocence. He put to her a series of questions to that effect. In particular, he put to LS that the reason she made her statement to the police was to support the applicant, that she firmly believed that he was innocent, that he had never done any of the things alleged against him, that nothing would change her belief, and that she did not believe what her daughter said. LS agreed with each of those propositions.

The prosecutor then addressed the following question to LS:

All right. Now, can I just take you back to the time when you were married to [GP]. Was it the case that he was charged with sex offences? – – – That’s correct.[19]

[19]Ibid 204.17–19.

The prosecutor then put to LS the following series of events, with which LS agreed, namely, that her first husband (GP) went to gaol in 1979, that she then had a breakdown, and that as a result she put PS and CS into the Department’s care, where they were made wards of the State. The prosecutor put to LS that she had married the applicant three months later in March 1980, with which she agreed. He then asked her:

So it must have been a whirlwind courtship, was it? – – – It was actually, yes.
Yes, swept you off your feet? – – – He did.
And you got married straight away. When did you divorce [GP]?

– – – … I divorced him straight after he went to prison.
…
And so as soon as that 12 months was up, was that the case that you went to the altar with [the applicant]? – – – Not straight after the divorce, no, Your Honour.[20]

[20]Ibid 205.7–17.

Unsurprisingly, counsel for the applicant objected to that question, on the grounds that it did not come within the scope of the leave granted by the judge to the prosecutor. The judge responded ‘I’ll allow the question’.[21]
[21]Ibid 205.20.

The prosecutor then pursued the same point, with some vigour. He put to LS the question ‘I take it your daughters didn’t go to the wedding?’.[22] LS responded that it would have been difficult for them to do so. The prosecutor, dissatisfied with that answer, required LS to answer directly whether her daughters went to the wedding, to which LS responded ‘No’.[23] He then engaged in the following cross-examination of LS:

Did you ever contemplate them going to the wedding? – – – No.
In fact, you’d abandoned your daughters by that stage, hadn’t you? – – – No, I had not abandoned my children.
…
Did you ever go and tell your daughters around the time you married him that that’s what you did? – – – No I did not.[24]

[22]Ibid 205.23.

[23]Ibid 205.26–27.

[24]Ibid 205.28–30, 206.2–3.

The prosecutor continued to pursue that line of cross-examination, in effect putting to LS, in a series of questions, that she had abandoned her daughters, and questioning her why it had taken her six years to take them out of care. The prosecutor asked her why over that period of time her daughters ‘barely heard from’ her.[25] He then put the following question:

What happened between that time period is that you very quickly got to breeding again, didn’t you?[26]

[25]Ibid 207.1–2.

[26]Ibid 207.5–6.

Understandably, counsel for the applicant properly objected, and the prosecutor amended the question to ‘having children’.[27] That question led to evidence about the circumstances in which LS ‘accidentally fell pregnant’ with her daughter HS,[28] thus provoking the prosecutor to put to her ‘Did you accidentally fall pregnant?’ with her son AS also[29].
[27]Ibid 207.8.
[28]Ibid 207.9–10.
[29]Ibid 207.11.

In the next question, the prosecutor asked LS whether she accepted that during that time she must have been aware that her daughters ‘had had a shocking formative … period when they were young’.[30] He put to her that ‘it’s just a dreadful way for children to be brought up, wasn’t it?’.[31]
[30]Ibid 207.16–18.
[31]Ibid 207.21–22.

Having asked a series of other questions, the prosecutor then engaged in the following cross-examination:

See, is the reason that you’re here today supporting your husband – has that got anything to do with [GP]? – – – No.
And losing your husband to prison back then? – – – No.
Losing your whole life? Having your nervous breakdown. Are you worried about that happening again?– – – No.[32]

[32]Ibid 207.30–31, 208.1–4.

The prosecutor concluded that passage of his cross-examination by putting to LS that she was ‘blindly supporting’ the applicant.[33]
[33]Ibid 208.7.

In answer to further questions, LS agreed with the proposition that she said that the applicant was an excellent parent. When it was put to her that PS and CS had told the jury that he was not a good parent, she responded that they had always told her that they were going to make her pay for putting them in the home. The prosecutor pursued that answer in a number of questions. He then returned to the topic of the belief by LS in the applicant’s innocence, putting to her that, from the outset, she had believed in the applicant’s innocence, that she had done everything she could to support him, and that she had looked for and located photographs that assisted his case. The prosecutor then put the following question:

In other words … was it your thought to try and demonstrate that it was all like the Brady Bunch basically, it was a big happy family.[34]

[34]Ibid 209.26–28.

The prosecutor then directed questions to LS concerning her reaction when PS first made a complaint to the police. He commenced that line of cross-examination by putting to LS that the police had told her that PS had said that the applicant ‘had been doing in effect the same sort of things as [GP] went to gaol for.’ Counsel for the applicant objected to that question. The prosecutor said that he would put it another way, and the judge suggested that he do so. The prosecutor put to LS that the allegation, that PS had been sexually assaulted by the applicant, was ‘very shocking’ to her ‘[b]ecause that was in effect what [GP]?’.[35]
[35]Ibid 209.7–23.

LS agreed that when the allegations made by PS were conveyed to her, she was very concerned. In answer to further questions, LS said that her recollection was that the police came to her home before PS arrived home from school. She was unable to remember whether PS spoke to the police while they were at the home. That answer provoked the following question by the prosecutor:

So your story is that the police, before — without even speaking to [PS], decided that [PS] wasn’t telling the truth?[36]

Notwithstanding objection by counsel for the applicant, the judge allowed the question. The prosecutor then questioned LS further about whether she had seen the police talk to PS at her home.

[36]Ibid 211.30–31, 212.1.

The prosecutor then put to LS the evidence given by PS, namely, that when the police were in the house, LS took PS into a room and threatened her. LS responded that that was ‘incorrect’, and that it was ‘a load of rubbish’. She said there was ‘no way known’ that she would threaten her daughter. She said that she asked her daughter why she had not come to her and told her what was going on. She agreed that she had not raised the matter with her daughter again.[37]
[37]Ibid 213.20–31, 214.1–7.

Finally, LS denied that she would lie for her husband. She rejected the proposition put to her in cross-examination that the applicant had been violent to her and to ‘just about everyone in the family’. LS said that if he had been violent towards her or her daughters, she would have admitted it.[38]
[38]Ibid 214.26–31.

Grounds 3A and 3B — Submissions

In support of Ground 3A, counsel for the applicant submitted that, in applying for leave to cross-examine LS under s 38(1)(a) of the Evidence Act, the prosecutor did not identify the scope or boundaries of the aspects of the evidence of LS in respect of which he wished to cross-examine her. Further, the judge did not impose any limit to the cross-examination, apart from directing that it should not extend to matters subsequent of each offending. Counsel for the applicant accepted that the evidence, given by LS, was unfavourable in respect of two particular matters in issue in the trial, namely, first, whether the complaint made by PS to police in 1988 was a lie, and, secondly (subject to our conclusion on ground 1), whether the applicant had engaged in violence against PS, her mother and sister. Counsel had accepted that it may have been open to the judge to grant leave to cross-examine LS as to those two matters, and, also, as to her credit in order to establish bias. However, it was submitted, it was not open to the judge to grant leave to the prosecutor to cross-examine LS more on a broader scope.

In support of ground 3B counsel submitted that the manner in which LS was cross-examined by the prosecutor, and matters put by him in final address, resulted in a miscarriage of justice to the applicant.

In that respect, counsel relied on a number of aspects of the cross-examination undertaken by the prosecutor of LS. In particular, it was submitted, that the prosecutor exceeded the permissible scope of cross-examination by questioning LS as to whether she believed that the applicant was innocent of the charges. The effect of the cross-examination, on that point, distracted from the issues in dispute, and thus invited the verdict based on a collateral issue. In particular, in his final address, the prosecutor incorrectly characterised the defence case as one based on the evidence of LS, and in effect invited the jury to reason towards a verdict of guilt by rejecting her evidence.

Further, counsel submitted that the prosecutor impermissibly cross-examined LS about the circumstances in which her first husband (GP) was imprisoned, and, in particular, that he had been charged with rape and sexual assault against a child. It was submitted that the prosecutor thus invited the jury to speculate that the evidence given by LS was ‘blind advocacy’ because ‘there was no way that [GP] 2 is going to happen to her again.’ It was submitted that the prosecutor was not permitted to advance such a proposition to the jury, and he had not first put to LS that she was lying with that specific motive.

Further, counsel contended that the evidence, relating to the offences in respect of which GP was convicted, might have induced the jury to impermissibly reason that because LS had once married a sex offender, it was more likely that the applicant was also a sex offender. The manner of the cross-examination exacerbated that risk, by highlighting the similarity between the offending committed by the former husband and that alleged against the applicant.

Another point, relied on in support of ground 3B, is that the prosecutor, over repeated objection by counsel acting for the applicant, put to LS the circumstances in which she had left her two daughters in care, engaged in a ‘whirlwind courtship’ with the applicant, and had two further children with him. Counsel submitted that that cross-examination was irrelevant, and that it was calculated to provoke feelings of sympathy for PS and CS, and arouse feelings of opprobrium against LS. It was submitted that the prosecutor exacerbated the unfairness of his cross-examination by highlighting, in his final address, the failures of LS as a mother, and the terrible early childhood experiences of PS and CS.

The third matter, relied on by counsel for the applicant, was that the prosecutor’s cross-examination of LS, about the allegations of violence against the applicant, was most limited. By contrast, in his closing address, the prosecutor relied on the evidence of PS and CS not only of violence by the applicant, but relating to the knowledge of LS and her failure to protect her children against that violence. None of those matters were put to LS in cross-examination, and none of the specific incidents, related by PS and CS, involving LS, were the subject of cross-examination of her by the prosecutor. It was submitted that the prosecutor’s failure to undertake cross-examination of LS, on those matters, was a breach of the rule in Browne v Dunn.[39] Similarly, counsel for the applicant noted that the prosecutor did not put to LS, in cross-examination, that her evidence was untruthful when she denied that she had threatened PS on the occasion that PS made a complaint to the police in 1988. The prosecutor’s failure to put such a question to LS had deprived her of the opportunity to respond to it.
[39](1893) 6 R 67.

In essence, it was submitted on behalf of the applicant that the cross-examination of LS, by the prosecutor, constituted a wholesale attack on her credit, without the prosecutor first obtaining leave pursuant to s 38(3) of the Evidence Act. It was contended that the whole point of the cross-examination was to make LS look bad, and to ‘taint the applicant by association’. The prosecutor, in his cross-examination, went well beyond questioning that was permissible under s 38, and breached his fundamental duty of fairness to the applicant.

In the respondent’s written case, it was submitted, in answer to ground 3A, that the judge did constrain the prosecutor to cross-examination on the issue of violence that predated the offending. It was contended that that constraint was sufficient for the purpose of s 38(1)(a) of the Evidence Act. In response to ground 3B, it was submitted that the matters raised by the applicant, under this ground, were not the subject of substantial objection by counsel acting for the applicant at the trial. No application was made to discharge the jury after the evidence given by LS. Further, in the trial, counsel for the applicant had sought to rely on evidence given by LS, in cross-examination by the prosecutor, which suggested a motive of PS to lie about the applicant’s conduct. He had also sought to rely on conflicts between the complainant’s evidence and LS’s evidence. Thus, it was submitted that the prosecutor correctly characterised the defence as having ‘hitched its harness’ to the evidence of LS. Accordingly, it was contended that the cross-examination of LS, undertaken by the prosecutor, was justified under s 38.

On the hearing of oral argument before the Court, counsel acting for the respondent did not seek to supplement or add to the submissions advanced on behalf of the respondent in its written argument.

Grounds 3A and 3B: analysis and conclusion

For the following reasons, grounds 3A and 3B must each succeed.

It was not in issue in the trial, or on this application, that evidence given by LS in the trial was unfavourable for the purpose of s 38 of the Evidence Act, to the extent that LS gave evidence on two topics, which was not favourable to the case of the prosecution.[40] Specifically, those topics were, first, the circumstances in which PS retracted the allegations that she made against the applicant when spoken to by police in 1988, and, secondly, the evidence by LS that the applicant was not violent to PS or to any other member of her family. In this application, I have concluded (under ground 1) that the evidence of violence of the applicant, given at the trial, was inadmissible. However, accepting — for the purposes of ground 3A and ground 3B — that it was admissible, the evidence given by LS on that topic was not favourable to the case of the prosecution.
[40]R v Souleyman (1996) 40 NSWLR 712, 715 (Smart J); DPP v Garrett (a pseudonym) [2016] VSCA 31, [66]–[67] (Maxwell P, Redlich and Beach JJA); Saddik v The Queen [2018] VSCA 249, [86] (Kaye and Niall JJA) (‘Saddik’).

It is clear that the judge’s ruling, that the prosecutor be entitled to cross-examine LS pursuant to s 38 of the Evidence Act, did not comply with, and was not made in accordance with, s 38, or the well-established principles that are applicable to it. Further, the cross-examination undertaken by the prosecutor, pursuant to that leave, went far beyond that which would have been permissible, and in a number of respects failed to comply with the prosecutor’s duty to conduct the trial in a manner that was fair to the applicant.

The prosecutor was granted leave to cross-examine LS under s 38(1)(a) of the Evidence Act. The principles, that are applicable to such leave, can be briefly stated for the present purposes.

First, it is fundamental that leave may not be granted to permit cross-examination of a particular witness at large. Rather, leave may only be granted to a party to cross-examine a witness about evidence given by that witness which is unfavourable to the party seeking leave to cross-examine the witness. That principle is clear from the plain language of s 38(1)(a). It has been restated in a number of authorities.[41]
[41]See, eg, Meyer (a pseudonym) v The Queen [2018] VSCA 140, [182], [184] (Priest and Kaye JJA) (‘Meyer’); R v White [2003] NSWCCA 64, [68]–[73] (Smart AJ with whom Giles JA and Dunford J agreed); R v Hogan [2001] NSWCCA 292, [80] (Greg James J) (‘Hogan’).

It is accepted that, where leave is granted to cross-examine a witness in relation to specific topics, the cross-examination may include questions directed to establishing the probability of the factual state of affairs relevant to those topics. Further, in establishing the probability, or improbability, of a particular state of affairs, the cross-examiner is entitled to ask questions relating to the witness’s credibility, provided that that cross-examination is directed to the witness’s credibility on the particular topic in relation to which leave to cross-examine has been granted.[42]
[42]R v Le (2002) 54 NSWLR 474, 486 [66]–[67] (Heydon JA with whom Dunford and Buddin JJ agreed); [2002] NSWCCA 186; Doyle v The Queen [2014] NSWCCA 4, [293] (Bathurst CJ); Saddik [2018] VSCA 249, [87].

However, that proposition does not permit a party, to whom leave has been granted under s 38, to cross-examine a witness at large on matters relating solely to the witness’s credibility. By its terms, s 38(3) of the Act provides that the party, cross-examining the witness under s 38, may only question the witness ‘about matters relevant only to the witness’s credibility’ with the leave of the Court.

The second relevant principle is that, in considering whether to grant leave to cross-examine a witness under s 38, the judge is required to take into account the matters specified in s 38(6) and s 192(2) of the Act.[43]
[43]Stanoevski v The Queen (2001) 202 CLR 115, 126–8 [41]–[47] (Gaudron, Kirby and Callinan JJ); [2001] HCA 4; R v Fowler [2000] NSWCCA 142, [120] (Wood CJ at CL); Hogan [2001] NSWCCA 292, [4]–[5] (Giles JA), [80] (Greg James J); Deacon (a pseudonym) v The Queen [2018] VSCA 257, [97] (Kaye, T Forrest JJA and Taylor AJA) (‘Deacon’); Meyer [2018] VSCA 140, [182].

The principles were succinctly, and appropriately, stated by Greg James J in Hogan as follows:

It is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised. It is essential when considering the grant of leave to consider how far, at least initially, cross-examination might be permitted to extend, having regard to the bounds set by s.38, to the matters to which regard must be had when granting leave in s.38(6) and s.192 and to whether prejudicial matters to which ss.135 and 137 might apply might be raised.[44]

[44]Hogan [2001] NSWCCA 292, [80] (Greg James J).

In the present case, the judge’s grant of leave to the prosecutor, to cross-examine LS, did not comply with those principles. First, no definition was given by the judge to the particular matters on which LS’s evidence was unfavourable, and to which that leave was confined. Indeed, no consideration was given to the extent to which the prosecutor would be entitled to cross-examine LS on either of the two topics in respect of which her evidence was unfavourable. The only limit on the cross-examination, prescribed by the judge, both in his ruling, and during the conduct of the s 38 cross-examination, was that the questions relating to acts of violence by the applicant towards his family should be confined to conduct that took place before or at the time of the offending. No other limit was prescribed, or enforced, during the conduct of the cross-examination. In that way the grant of leave did not comply with the terms of s 38(1)(a) of the Act. Nor did it comply with s 38(6)(b) which required the judge to take into account ‘the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by’ the prosecutor.

In addition, in granting leave, no consideration was given to the factors specified in s 192(2) of the Evidence Act. In particular, no consideration was given to the circumstance prescribed by s 192(2)(b), namely, the extent to which the cross-examination would be unfair to the applicant or to LS. Nor was consideration given to the question of whether s 137 of the Act applied, and, in particular, whether the probative value of the matters on which LS was to be cross-examined would outweigh the prejudice, that would be occasioned to the applicant arising out of the cross-examination on those matters.

In that respect, even if the cross-examination had been confined to the two topics on which her evidence had been unfavourable to the prosecution, it would have been necessary for the court to consider carefully the relevance of those two topics, and to weigh that relevance against the prejudicial effect of the intended cross-examination which was to be undertaken in relation to them.

Plainly, the decision of the judge, granting leave to the prosecutor to cross-examine LS under s 38 of the Evidence Act, was flawed, in that it failed to define, carefully, the two topics on which the prosecutor might be permitted to cross-examine LS, and the extent to which such cross-examination might reach. For those reasons, ground 3A is made out.

Turning to ground 3B, it is clear, from the foregoing summary of the matters on which LS was cross-examined, that that cross-examination went well beyond, and was by no means confined to, the two topics on which the evidence given by LS had been unfavourable. Significantly, as submitted by counsel for the applicant, the cross-examination, taken as a whole, constituted a wholesale attack by the prosecutor on the integrity and character of LS.

The prosecutor commenced the cross-examination, from the outset, by attributing bias to LS as a witness. He then cross-examined LS about the circumstances in which her first husband was imprisoned. The fact that that husband had been charged with sex offences was entirely irrelevant to the present case. It carried the plain and clear risk that the jury might be drawn to transposing guilt by association to the applicant, from the circumstance that LS’s first husband had been convicted of sex offences. The only possible fact, that might have been relevant, was that GP had been imprisoned, and that LS was minded to give evidence that supported the applicant to ensure that he would not suffer the same fate.

Following that topic, the cross-examination then travelled further beyond the bounds of that which was permissible. The questions about LS having a ‘whirlwind courtship’ with the applicant, that she was ‘swept off [her] feet’ by the applicant, and that she went ‘straight to the altar’ with the applicant after securing a divorce from her first husband, had no relevance to the trial, and was plainly insulting to LS. The prosecutor aggravated the issue by asking questions as to whether LS had invited PS and CS to the wedding, and as to whether she had told them about it. All of that cross-examination was designed to portray LS as a callous mother who did not care about her children. The cross-examination was compounded by questions directed to the circumstances in which LS had two further children, with the prosecutor putting to her directly that at that time she ‘very quickly got to breeding again’.

Those questions were not relevant to either of the two topics on which LS had given unfavourable evidence. At the most, they related to her credit. However, they were not directed to the credibility of the evidence given by LS on either of the two matters on which her evidence was unfavourable to the prosecution. Further, the prosecutor had failed to seek leave to cross-examine LS on issues of credit, as he was required to do under s 38(3) of the Evidence Act. Assuming, without deciding, that it might have been appropriate to give leave to cross-examine LS about issues of bias, in respect of the two topics on which her evidence was unfavourable, the cross-examination, as to her credit, went well beyond that scope.

As a matter of particular concern, the cross-examination was couched in language that was designed to insult and belittle LS. It was framed in emotive terms which were calculated to inflame the jury to entertain adverse feelings against both LS, and, by association, the applicant. The language in which a number of the questions were expressed were a clear breach of ss 41(3)(b) and (c) of the Evidence Act, in particular, by being unduly offensive, oppressive and humiliating, and by being put to the witness in language which was belittling, insulting and inappropriate.

Further, as contended by counsel for the applicant, the cross-examination failed to comply with another important principle that has been discussed in a number of the authorities. Cross-examination by leave, under s 38, enables a prosecutor to challenge a witness, called by the prosecution, on those matters which the prosecutor intends, in final address, to impugn the evidence of that witness. Thus, it is well established that where a prosecutor, in address, seeks to traverse particular aspects of evidence given by a witness called by the prosecution, the prosecutor is ordinarily obliged to seek leave to cross-examine the witness, and if leave is granted, to cross-examine the witness on those matters, in compliance with the rule in Browne v Dunn.[45]
[45]Kanaan v The Queen [2006] NSWCCA 109, [83] (Hunt AJA, Buddin and Hoeben JJ); R v Kennedy [2000] NSWCCA 487, [36]–[37] (Studdert J with whom Heydon JA and Greg James J agreed); Saddik [2018] VSCA 249, [86]–[93]; Deacon [2018] VSCA 257, [94]; Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [66]–[67] (Kaye, Weinberg JJA and Kidd AJA) (‘Ritchie’).

The cross-examination by the prosecutor of LS, concerning acts of violence by the applicant, was limited to two questions. In the first question, the prosecutor put to LS that she knew that the applicant had been violent to her and to ‘just about everyone in the family’. LS rejected that proposition. The prosecutor then asked a second question, namely, ‘and you’re just not prepared to agree that he has?’. LS responded that if the applicant had been violent to her or to her daughters, she would say so, but he had not been violent.

By contrast, in final address, the prosecutor quoted sections of the evidence of PS that the applicant had been violent to her, to her sister CS and to LS, and that LS had seen that happen. The prosecutor quoted the question which he put to PS as to what LS would do when the applicant hit her, and PS’s response ‘nothing’. The prosecutor referred to the evidence of the violence of the applicant to AS, and to the fact that PS had seen LS with a black eye and half her face swollen. None of those matters were put to LS in cross-examination. The prosecutor did not give LS the opportunity to respond to any of those allegations, notwithstanding that he used them, in that manner, in final address. His failure to put those matters in cross-examination was inexplicable, particularly since that was one of the topics on which he might have been appropriately given leave to cross-examine LS under s 38 of the Evidence Act. That failure compounded the injustice to the applicant arising from the improper cross-examination by the prosecutor of LS under leave given to him by the judge.

Thus, in conclusion, ground 3A and ground 3B must succeed. In respect of ground 3A, the judge erred in granting leave to the prosecutor to cross-examine LS for two principal reasons. First, the judge failed to confine such cross-examination to matters of evidence given by LS that were unfavourable to the prosecution. Secondly, in granting leave, the judge failed to consider and take into account the matters prescribed by s 38(6) and s 192(2) of the Act. In light of the principal issues in the case, it was important that the judge carefully define the matters that were to be the subject of the cross-examination, and, in particular, that the judge prescribe, in sufficient terms, the extent to which the prosecutor was entitled to cross-examine LS on the two issues in respect of which her evidence was unfavourable to the prosecution. In the context of the trial, the factors specified in ss 192(2)(b) and (c) of the Act were of some importance to the prescription of such a limit. By contrast, in this case, the judge gave the prosecutor virtually a ‘carte blanche’ to cross-examine LS at large.

In respect of ground 3B, the cross-examination embarked on by the prosecutor extended well beyond the two matters on which the evidence of LS had been unfavourable to the prosecution. In essence, the cross-examination, undertaken by the prosecutor, was impermissible for each of the reasons specified in subparagraphs (a) to (d) of ground 3B. A significant part of the cross-examination was directed to the credibility and integrity of LS, and was calculated to denigrate her, and, by association, the applicant. The prosecutor had not sought leave from the judge to embark on a cross-examination that was relevant only to LS’s credibility as he was required to do under s 38(3) of the Act. As already mentioned, the content of the cross-examination, and the language in which it was expressed, was quite improper and inflammatory, and was calculated to appeal to the emotions of the jury and to incite it against LS and the applicant.

It is a matter of concern, and regrettable, that consideration of the matters that are the subject of this application, in particular, ground 3A and 3B, reflects adversely on the conduct of the prosecutor in the conduct of the trial. In recent times, this Court has, in a number of cases, had occasion to consider issues arising from the conduct of prosecutors in trials conducted in the courts. The principles relating to the important duty of the prosecutor to conduct a trial in a manner that is fair to the accused, and in a manner that is consistent with the role of the prosecutor as a minister for justice, are well known, long established and well understood.[46] Those principles were significantly departed from in this case.
[46]See, eg, R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ with whom Marks and Southwell JJ agreed); Richardson v The Queen (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ); [1974] HCA 19; Ritchie [2019] VSCA 202, [63]–[64]; Saddik [2018] VSCA 249, [91].

For those reasons, each of the matters, specified as particulars under ground 3B, have been substantiated. Accordingly, leave to appeal should be granted on both grounds 3A and 3B, and the appeal allowed on those grounds.

Summary of conclusions

For the foregoing reasons I have reached the following conclusions concerning the matters that were agitated in respect of grounds 1,3A and 3B of the application for leave to appeal against conviction:

(1)Under ground 1, the judge erred in permitting the prosecution to lead evidence of violence by the applicant to the complainant and to members of her family. Further, if, contrary to that conclusion, the limited evidence of acts of violence by the applicant to the complainant, contended for by counsel for the respondent, were admissible, the evidence of acts of misconduct by the applicant, that was adduced at the trial, far exceeded the limited scope of evidence contended for by the respondent on this application. In addition, the misconduct evidence that was adduced at the trial was misused in an impermissible manner by the prosecutor in his final address to the jury.
(2)Under ground 3A, the judge erred in granting leave to the prosecutor to cross-examine the witness LS under s 38(1) of the Evidence Act. In particular the judge failed to specify the two topics on which the evidence of LS was unfavourable to the prosecution, and to confine the permitted cross-examination to those topics. In granting leave to the prosecutor to cross-examine LS, the judge failed to consider and apply s 38(6) and s 192(2) of the Evidence Act.

(3)Under ground 3B, a substantial miscarriage of justice was occasioned by the manner in which the prosecutor cross-examined the witness LS at trial. The prosecutor cross-examined LS as to matters that were relevant only to her credit in circumstances in which leave had not been granted to him to do so under s 38(3) of the Evidence Act. The prosecutor asked a number of questions which were irrelevant and highly prejudicial to both the witness and the applicant. The prosecutor failed to cross-examine LS on matters on which he subsequently addressed the jury, in breach of the rule in Browne v Dunn. A number of the questions put by the prosecutor to LS in cross-examination breached s 41(3)(b) and (c) of the Evidence Act. The cross-examination by the prosecutor of LS, and the manner in which he addressed the jury, contravened the prosecutor’s duty to conduct the trial in a manner that was fair to the accused.

For those reasons, the applicant should be granted leave to appeal on ground 1, and on ground 3A and ground 3B, and the appeal should be allowed. As correctly conceded by counsel for the respondent, as a result of the applicant’s success on ground 1, there was a substantial miscarriage of justice. It is also beyond argument that, as a consequence of the matters that I have discussed in considering ground 3A and ground 3B, those matters also resulted in a substantial miscarriage of justice. In those circumstances, the applicant was denied his fundamental right to a fair trial of the charges against him.

T FORREST JA
OSBORN JA:

We have had the advantage of reading in draft form the reasons of Kaye JA. We agree with his Honour that leave should be granted, and the appeal allowed on grounds 3A and 3B. Further, we agree with his Honour’s conclusions on ground 2.

We are also of the view that leave should be granted on ground 1 and that that ground should succeed. Our reasons for this conclusion are different, in some respects, from those of Kaye JA.

As Kaye JA has set out, the prosecution sought to lead evidence of past violence carried out by the applicant towards PS or in her presence. It was held by the trial judge that this was relevant to three discrete issues:

(a) It explained why the complainant chose not to resist the applicant’s advances.

(b) It explained why the complainant did not complain immediately to her mother.

(c) It explained why the applicant felt free to behave in such a brazen way without fear that his conduct to PS might be revealed.

We agree with Kaye JA that, as the evidence turned out, there was peripheral, if any, relevance of past violence to these three issues. The complainant did resist, to some extent, the applicant’s advances and, in her evidence, did not satisfactorily link her ultimate compliance to any fear of violence. The complainant may not have complained to her mother contemporaneously, but she complained to a schoolmate, her principal and then the police within a day of the third incident occurring, and about a week after the first incident. Further, it could hardly be said that the applicant acted in a brazen way (whatever that means) when, on the complainant’s account, he took considerable effort to keep his sexual misconduct covert. Despite this, we consider that this evidence of context, in the narrow form as proposed by the respondent on this appeal,[47] bore relevantly upon a live issue in the trial.
[47]The respondent conceded at the hearing of the appeal that the evidence of past violence ought to have been confined to the ‘few backhanders’ evidence.

It will be recalled that the police attended LS’s home with PS on the day after the third incident. A policeman informed LS of PS’s allegations against the applicant. According to the complainant, LS took PS into a bedroom. She told PS that she had a choice — either tell the police that PS was lying or she would return PS to the worst foster home PS had ever been in. PS said that she was petrified and that, if she complied with her mother’s command, she would ‘cop another beating’, and if she did not, she would be put back in a home and she would ‘get it worse’ there than where she was. She thought she could not win. On this issue, LS’s evidence was in direct conflict with PS’s evidence. LS stated that the applicant never struck or hurt PS. She agreed that she spoke to PS in PS’s bedroom and asked why PS did not come to her if she had a problem. PS had responded, ‘I don’t know.’

We consider the limited evidence of past violence proposed by the respondent on this appeal bears relevantly on the issue of whether or not PS’s retraction was procured by threats as she alleged. If the jury accepted that the applicant had been violent in the past towards PS, it made her account of LS’s threat, and her fears consequential upon that threat, more plausible. It made PS’s asserted fear that she would ‘cop another beating’, even if she retracted the allegation, more readily believable by providing a context for the phrase ‘another beating’. Put another way, this limited evidence of past violence would have provided relevant relationship or context evidence on the issue as to whether the retraction was genuine or not. Without this evidence, the very difficult situation with which (on her account) PS was confronted cannot be fully understood, and the explanation for her actions cannot be assessed in the full context in which she found herself.

Assuming this evidence of limited prior violence is relevant, in our view, it has reasonably high probative value. The issue of the retraction was important in the trial. If it were genuine, or if the jury had a doubt, it would have been sufficient to result in the applicant’s acquittal on all charges. Any plausible explanation of it would have been welcome evidence for the prosecution.

As events turned out in the trial, however, the evidence of past violence was not confined at all, and despite assurances to the contrary, the prosecutor focussed on the applicant’s specific violence towards PS, her five year old stuttering brother, her sister and her mother. The danger of unfair prejudice swamped any legitimate probative value and, with the considerable advantage of hindsight, all evidence of past violence should have been excluded pursuant to s 137 of the Evidence Act 2008. In any future trial, however, we consider that limited evidence of the applicant’s past violence may well be admissible for the specific purpose we have identified, assuming the danger of unfair prejudice can be ameliorated by a strong direction.

We would grant the application for leave to appeal and allow the appeal on ground 1.

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Ethan Murillo (a pseudonym)[1] v The Queen [2020] VSCA 68

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26 March 2020