Nimely (a pseudonym) v The King
[2023] VSCA 20
•15 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0059
| LIONEL NIMELY (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, TAYLOR and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 February 2023 |
| DATE OF JUDGMENT: | 15 February 2023 |
| DATE OF REASONS: | 21 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 20 |
| JUDGMENT APPEALED FROM: | DPP v [Nimely] (Unreported, County Court of Victoria, 17 August 2021, Judge Wilmoth) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Sexual offending involving child under 16 – Distress – Judge misdirected jury that complainant’s distress could be used as supporting evidence – Judge failed to warn jury as to limitations on the use of such evidence – Appeal allowed – New trial ordered.
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| Counsel | |||
| Applicant: | Mr T Kassimatis KC with Ms G Connelly | ||
| Respondent: | Ms R Harper | ||
| Solicitors | |||
| Applicant: | James Dowsley & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
TAYLOR JA
KAYE JA:
Introduction
Following a 10 day trial, on 17 August 2021 a jury in the County Court found the appellant, now aged 33 years,[2] guilty of three charges of sexual assault of a child[3] (charges 1, 4 and 12); two charges of rape[4] (charges 6 and 8); and six charges of sexual penetration of a child under 16[5] (charges 2, 3, 5, 11, 13 and 14), and acquitted him of one charge of rape.[6] A jury in an earlier trial, conducted in May and June 2021, had been unable to reach verdicts.
[2]His date of birth is 1 March 1989.
[3]Crimes Act 1958, s 49D(1).
[4]Crimes Act 1958, s 38(1).
[5]Crimes Act 1958, s 49B(1).
[6]On 1 December 2021, the judge sentenced the applicant to a total effective sentence of 10 years and six months’ imprisonment, with a non-parole period of six years.
The applicant sought leave to appeal on two grounds as follows:
1. A substantial miscarriage of justice occurred because:
(a)the prosecutor invited the jury to find that the complainant’s distress when reporting her alleged abuse to her parents provided indirect support for her claims;(b)the trial judge directed the jury that they could use the complainant’s distress when reporting her alleged abuse to her parents as indirect support for her claims;
(c)the trial judge did not direct the jury that, before they used the complainant’s distress as indirect support for her claims, they needed to be satisfied that it was caused by the alleged offending, and not by some other cause; and
(d)the trial judge did not warn the jury about the inherent limitations of distress evidence.
2.A substantial miscarriage of justice occurred because the trial judge did not direct the jury in terms attributed to Liberato v The Queen (1985) 159 CLR 507.
At the conclusion of argument in this Court on 15 February 2023, we were of the view that the first ground must succeed. We thus granted leave to appeal against conviction; allowed the appeal; set aside the convictions; and ordered that there be a new trial. These are our reasons for those orders.
The alleged offending
The alleged offending was said to have involved six incidents, occurring in an 18 month period between December 2017 and June 2019. At that time, the complainant, ‘JP’, was aged 12 or 13 years, and the applicant was aged 28 to 30. The applicant was in a relationship with JP’s older sister, ‘CG’. They cohabited in a western suburb of Melbourne. JP lived with her parents and brothers in a different residence in the same suburb.
By way of very brief summary, the first incident of offending allegedly occurred in a bedroom of the applicant’s home during a visit by JP and her brothers. The applicant allegedly removed JP’s shirt and pants; kissed her neck, stomach and body (charge 1 – sexual assault of child under 16); and penetrated her vagina with his penis (charge 2 – sexual penetration of child under 16).
The second incident of offending allegedly occurred on or about 9 January 2018, after the applicant collected JP from school in his car. He told her: ‘I think you pregnant because I forgot I come in you’. The applicant then drove JP to a pharmacy, where she asked the pharmacist for the ‘morning-after pill’. It was alleged that the applicant had earlier engaged in unprotected sex with JP by inserting his penis into her vagina (charge 3 – sexual penetration of child under 16).
On 15 October 2018, the third incident of offending allegedly occurred. The prosecution alleged that, when JP was packing for a school camp, the applicant picked her up and drove her to a remote area. He rubbed her legs and put his hands under her clothes (charge 4 – sexual assault of child under 16). The two then got into the back seat of the car, where the applicant penetrated JP’s vagina with his penis (charge 5 – sexual penetration of child under 16).
The fourth alleged incident of offending involved two instances of penile-vaginal rape. On an occasion in 2018, the applicant allegedly took JP to a bedroom in his home. He there recorded her on his telephone, telling her to show her face to the camera. The applicant said that girls ‘like recording themselves having sex and putting it on website getting more money’. They then argued. It was alleged that the applicant then went to the kitchen, came back with a knife and said: ‘Yeah, see, you scared now’. He told her to keep quiet or he would use the knife, and then returned the knife to the kitchen. When he returned to the bedroom, the applicant laid on the bed and told JP to sit on top of his penis and ‘shove it’ into her vagina ‘and to go up and down’ (charge 6 – rape). He recorded the penetration at close range. The applicant then told the complainant to have a shower. Shortly afterward, he entered the shower and asked JP whether she wanted to have sex. She said: ‘I don’t want to try’. The applicant lifted her up and penetrated her vagina with his penis (charge 8 – rape). He then drove JP to school.
It was alleged that the fifth incident of sexual offending occurred in a period between 1 January and 26 June 2019, when the applicant visited JP’s home. In her bedroom he removed her clothes and placed her on the bed. He asked her why she was ‘acting so scared’, and whether she wanted to have sex. JP declined. The applicant then penetrated her vagina with his penis (charge 11 – sexual penetration of child under 16).[7]
[7]Charge 11 was an alternative to charge 10, rape, of which the applicant was acquitted.
The final incident of offending allegedly occurred between 1 June and 29 June 2019, when the applicant picked JP up after school and drove her to a remote area. He allegedly rubbed JP’s legs and put his hands under her school dress (charge 12 – sexual assault of child under 16), before putting his hand under her shorts and penetrating her vagina with his finger (charge 13 – sexual penetration of child under 16 ). The applicant told JP to get into the back seat, where he removed his clothes and laid on top of her. He penetrated her vagina with his penis (charge 14 – sexual penetration of child under 16).
The defence case
Although the applicant did not give evidence at trial, his ‘defence’ to the charges was contained in a lengthy record of interview with police, conducted on 15 August 2019. In the course of the interview, the applicant denied JP’s allegations. He asserted that the sexual conduct alleged by the complainant ‘never occurred’ and the allegations were ‘nonsense’. There was never a time that he was alone with the complainant.
Ultimately, the applicant’s counsel went to the jury on the basis that JP’s troublesome behaviour ‘may well be explained by her growing up’, and could not be attributed to the alleged sexual offending. As counsel put it, ‘she’s 13, she doesn’t need another reason for a behaviour change’. JP had created an ‘elaborate story’. Her final version of events differed from her initial complaint, or was lacking in detail, casting doubt on her truthfulness. The ‘details are important’. If the complainant’s evidence cannot be accepted on the details, her overall account could not be accepted beyond reasonable doubt.
Ground 1: Distress
Under cover of the first ground, the applicant’s counsel principally submitted that the trial judge was wrong to leave the complainant’s alleged distress to the jury as being capable of supporting her evidence. But even if it were assumed that the evidence of distress was admissible, counsel submitted, the judge erred in failing to direct the jury that they needed to be satisfied that the complainant’s distress was caused by the alleged offending, and not by some other cause; and in failing to warn the jury about the inherent limitations of distress evidence.
These submissions should be accepted.
The evidence of distress
Such evidence as there was of distress was limited.
JP’s father, ‘JE’, gave evidence that, in 2018, he noticed a ‘change in behaviour’ in her. That behavioural change was ‘lateness from school, she used to come on school precisely at around four, but then [JP] come from school around sometimes seven, sometimes eight’, often by public transport. He spoke to the applicant, who denied any ‘interaction’ with JP. JE and his wife did not understand their daughter’s behaviour, which they found to be ‘incomprehensible’. JE said that JP
used the vulgarity on people, she’s not co-operating with anybody in the house, she does anything she want to do and she not complain to me she’s sick but she not happy and so I took her to the hospital for a doctor to diagnose if something wrong with her.
JE gave evidence that, after taking JP to the doctor, he had a further conversation with her, in which she said that she was having an affair with a ‘Samoan boy’, whom she first said was aged 17 years, but later said was 15. There was then a ‘family meeting’, in the course of which JP took him outside, told him that she had been ‘having a relationship’ with the applicant — which included ‘intercourse’ — and admitted that what she had said about a Samoan boy was ‘untrue’. JE’s evidence was that JP ‘apologised’, and said that she had ‘disappointed’ her parents. JE gave evidence that when his daughter told him these things
she cry a lot. For at least five minutes she cry. I said, ‘What happened, tell me?’ She said, ‘Ah, I’m ashamed. Ah, ah, [the applicant] fooled me and we’ve been having a relationship’.
Following the family meeting, JE and his wife then sought advice from the school Principal, who advised going to police. In conformity with that advice, a report was then made to police on 15 July 2019. After that report was made, JE said, JP’s behaviour improved, and she began ‘to communicate with people in the house’, and ‘to perform some tasks in the house’.
JA, JP’s mother, also gave evidence that she noticed changes in JP’s behaviour, including a lack of respect. She gave evidence that, in the meeting in which her daughter admitted to having a ‘relationship’ with the applicant and to ‘lying’ about a Samoan boy, JP ‘was really crying’.
The prosecutor’s final address
Significantly, the prosecutor did not argue that JP’s distress when complaining to her parents was capable of providing independent support for her evidence.
Indeed, it appears that the concentration of the prosecutor’s arguments in his final address was on the asserted change in JP’s behaviour in the lead-up to her complaint about the applicant’s alleged sexual conduct, rather than on any distress that she may have manifested when complaining. The closest the prosecutor came to any issue of distress is to be found in the following two passages of his final address:[8]
Suddenly there’s this change of behaviour that’s witnessed by [JP’s] parents, so much so, if you remember, that they take her to the local doctor to see whether there’s anything physically wrong with her. That’s how much her behaviour changed. Our submission to you, that behavioural change is consistent with what she’s saying and that she’d kept a terrible secret for a long time, that she had been having sexual activity with the accused man, who was partnered to her sister. That was the secret that she was keeping and that had been a secret that she’d been keeping for a long time. That explains and is consistent with her change in behaviour.
…
[JP] in the end … arrives home and confronted by the family. [She] becomes upset and asks to speak to her father in private, so not in the presence of her mother but, as I understand the evidence, outside. She then breaks down and weeps and says that she’s been having sexual activities or sexual intercourse or an affair with the accused man and that he told her not to tell anyone.
She says to her father that this story about the Samoan boy was not true, she’d made that up. It was the accused man. And in cross-examination in the special hearing she also says that the story about the Samoan boy was not true. She then tells her mother about what’s been happening and she says she’s been having an affair with the accused man for nearly two years. Again tells the mother that the accused told her not to tell anyone.
Now, my argument to you is that all this change in behaviour is consistent with the secret that she’d been concealing for so long and what the subject matter of the secret was. It’s something very dramatic and you would expect would cause any person to have significant issues trying to conceal that sort of conduct. If [JP] is telling the truth it would have weighed heavily on her over that long period of time.
[8]Emphasis added.
It is important to observe that, the prosecutor having distinctly advanced an argument concerning JP’s change in behaviour, the defence was able to meet it. Thus, in her final address, defence counsel submitted (among other things) that ‘[h]er changed behaviour may well be explained by her growing up, her growing up in Australia with parents who don’t agree with her use of social media and any other of her teenage ideas’.
The judge’s directions
Notwithstanding that the prosecutor eschewed any reliance on distress, in her charge, the trial judge directed the jury that they could use the complainant’s distress when telling her parents about the sexual relationship with the applicant as indirect evidence supporting her account. She said:[9]
Now you have heard evidence about [JP’s] apparent distress when she told her father and her mother about the relationship with [the applicant]. Her father said she wept, she cried a lot, for at least five minutes and her mother also said she was crying. If you find that [JP] was distressed when telling her parents, the prosecution invites you to use this as indirect evidence that supports the complainant’s account that the sexual acts happened. In other words, the prosecution says that the distress supports a conclusion that [JP] was remembering and recounting traumatic events. Given the circumstances here, the prosecution says that the traumatic events were the alleged rapes and incidents of sexual penetration and assault.
[9]Emphasis added.
Discussion
Neither counsel sought the direction set out above.[10] In those circumstances, s 16 of the Jury Directions Act 2015 prohibited the judge from giving the direction unless she considered that there were ‘substantial and compelling reasons for doing so even though the direction has not been requested’.[11] Not only did the judge fail to articulate any substantial and compelling reasons for giving the impugned direction, but there were none.
[10]A similar direction had, however, without demur been given in the earlier inconclusive trial.
[11]See Paull v The Queen [2021] VSCA 339, [54] (Priest, Kaye and Niall JJA) (‘Paull’).
As the Court explained in Paull:[12]
Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account. To be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[13] Even when admitted, evidence of distress generally will carry little weight. Thus, in Munro, Nettle JA said:[14]
In R v Flannery[15] it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge’s charge.
[12]Paull, [40]. See also [42].
[13]R v Flannery [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ); R v Rogers [2008] VSCA 125, [18]–[20] (Nettle JA); Flora v The Queen (2013) 233 A Crim R 320, 333 [69] (Redlich, Weinberg and Coghlan JJA).
[14]R v Munro [2005] VSCA 260, [49] (citation as in original).
[15][1969] VR 586 at 591.
The evidence in the present case was that the final incident of offending was sometime in June 2019, and that the family meeting in which JP was upset and crying and revealed the offending was shortly before the complaint to police on 15 July 2019. In those circumstances, the kind of causal connection required to make evidence of distress admissible — assuming that JP’s observed behaviour was capable of amounting to distress — was absent. The evidence was simply inadmissible as evidence providing independent support for the complainant’s account.[16]
[16]See the discussion and cases cited in Seccull v The Queen [2022] VSCA 219, [33]–[46] (Priest AP), [98] (Niall JA and Kidd AJA) (‘Seccull’). See also Paull, [40], [42].
Moreover, even if it be assumed that a direction on distress was warranted in the circumstances of this case, the direction that the judge gave was deficient in at least two respects: first, the judge failed to direct the jury that, before they could act upon the evidence of distress, they had to be satisfied that JP’s distressed condition was caused by the applicant’s sexual offending (and not some other cause); and, secondly, the judge failed to warn the jury that evidence of distress carried little weight.[17]
[17]Paull, [40], [42]; Seccull, [53] (Priest JA), [100] (Niall JA and Kidd AJA).
Although no exception was taken to the impugned direction, it is impossible to conclude other than that there has been a substantial miscarriage of justice. The direction may well have had the effect of improperly bolstering the complainant’s credibility in the eyes of the jury, in circumstances where her credibility was pivotal in the case against the applicant. Furthermore, in circumstances where the prosecutor did not rely on distress — but the judge in her charge wrongly attributed reliance on distress to the prosecution — the applicant was denied procedural fairness, since the applicant’s counsel was effectively deprived of the opportunity of addressing that issue in her address to the jury.[18] It therefore cannot be concluded that, absent the direction, the applicant’s conviction was inevitable.[19]
[18]See [22] above.
[19]See Baini v The Queen (2012) 246 CLR 469, 479 [26], 481 [31]–[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Seccull, [50] (Priest JA).
For these reasons, the applicant’s convictions could not be permitted to stand.
Before leaving this ground, we would make two final observations. The first is that the trial judge could to an extent be forgiven for giving the direction, given that it appears to have been drawn from the model direction in the Charge Book as it then stood,[20] and the applicant’s trial was conducted before the erroneous nature of the model direction was pointed out in Paull.[21] Secondly, in her oral submissions, counsel for the respondent submitted that the impugned direction would now be authorised by s 54K of the Jury Directions Act 2015. We do not agree. Unlike the situation obtaining in the present case, s 54K is limited to ‘obvious signs of emotion or distress’ displayed when the complainant gives evidence. Moreover, nothing in s 54K suggests that distress manifested by a complainant who gives evidence is capable of constituting independent supporting evidence.
[20]Victorian Criminal Charge Book, Judicial College of Victoria, [4.9.1].
[21]Paull, [48]–[49].
Ground 2: The absence of a Liberato direction
In De Silva,[22] it was said that a Liberato direction[23]
serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute,[24] a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
[22]De Silva v The Queen (2019) 268 CLR 57, 63 [10] (Kiefel CJ, Bell, Gageler and Gordon JJ) (‘De Silva’).
[23]Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J) (‘Liberato’).
[24]See, eg, Jury Directions Act 2015 (Vic).
It was also observed in De Silva:[25]
If the trial judge perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused’s version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice.[26]
[25]Ibid 63 [11].
[26]Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; Filippou v The Queen (2015) 256 CLR 47.
We consider that there was no need for a Liberato direction in the present case. In oral argument in this Court the applicant’s counsel conceded that the trial judge gave adequate directions on the burden and standard of proof, including directions that ‘the accused does not have to prove anything and that never changes from start to finish’, and that ‘[i]f there is another reasonable view of the facts which is consistent with the accused’s innocence then the prosecution will not have proved his guilt beyond reasonable doubt and you must acquit him’.
In our view, the risk against which a Liberato direction seeks to guard was not present. We therefore could not uphold ground 2.
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