Outtram v Tasmania
[2007] TASSC 98
•5 December 2007
[2007] TASSC 98
CITATION: Outtram v Tasmania [2007] TASSC 98
PARTIES: OUTTRAM, Michael Raymond
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 445/2007
DELIVERED ON: 5 December 2007
DELIVERED AT: Hobart
HEARING DATE: 5 November 2007
JUDGMENT OF: Underwood CJ, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Other matters - Accused person with hearing impairment – Allegedly faulty hearing loop.
Criminal Code (Tas), s402(1).
Aust Dig Criminal Law [1002]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: C Rheinberger
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 98
Number of paragraphs: 62
Serial No 98/2007
File No 445/2007
MICHAEL RAYMOND OUTTRAM v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
BLOW J
TENNENT J
5 December 2007
Order of the Court:
Appeal dismissed.
Serial No 98/2007
File No 445/2007
MICHAEL RAYMOND OUTTRAM v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
5 December 2007
I have read the reasons for judgment of Blow J and I agree with them and the order that he proposes be made in this appeal.
File No 445/2007
MICHAEL RAYMOND OUTTRAM v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
5 December 2007
This is an appeal against two convictions — one for maintaining a sexual relationship with a young person under the age of 17 years, and one for rape. The charges related to different complainants, but were tried together. The appellant was represented by counsel at his trial, but was unrepresented on the hearing of this appeal.
The charge of maintaining a sexual relationship relates to a time when the appellant was living at Triabunna. He lived there from December 1988 to October 1989. The complainant to whom that charge relates ("A") was about 10 years old at that time. He gave evidence to the following effect:
·The appellant first sexually assaulted him in a shed at the rear of the appellant's home, by rubbing his erect penis on his bottom, and ejaculating on his back.
·On another occasion, he was with the appellant in a tent on a camping trip. The appellant took A's pants down, put baby oil all over A's back and buttocks, lay on top of him naked, rubbed his erect penis against him, and ejaculated onto his back.
·There was another incident when the appellant had anal intercourse with A on the front bench seat of a blue Holden sedan in a pine plantation. He took A's pants down, positioned him on his hands and knees facing the passenger window, started rubbing himself against A's bottom, and then inserted his penis. A asked him to stop, but he did not stop, and continued until he ejaculated.
·There was an act of oral intercourse on a boat at a jetty in Triabunna. The appellant took A down below, took down A's pants and his own, rubbed his penis on A's back and buttocks while A lay face down on a bed, turned A around, put his penis in A's mouth, and forced A to perform oral sex on him.
·There was another incident on the same boat, on the bed, when the appellant rubbed his erect penis on A's buttocks and inserted it into his anus.
·There were other incidents in the shed. About seven sexual assaults occurred there altogether.
The rape charge related to an incident that was said to have occurred during 1990 when the appellant was a park ranger at Fortescue Bay. The complainant to whom that charge relates ("B") was 9 years old at the time. He gave evidence to the following effect. He was on a camping trip at Fortescue Bay with his family. During that trip, he was in a group of people that went fishing from an old shipwreck. "Michael", who was a ranger, offered him a ride back to the camp to get the bait. Some distance from the campsite they started to walk along the track. Michael tripped him, pushed him into the bushes, pulled his T-shirt up over his head, pulled his trousers down, and had anal intercourse with him. He begged him to stop because it hurt, but Michael said, "It's supposed to", and continued. Afterwards Michael said that, if he told anyone, he would kill him.
B first made a complaint of rape to the police in February 2004. He gave evidence of an incident in Salamanca Place that he said occurred about 12 to 18 months before that complaint. His evidence as to that incident was as follows. A man approached him and asked if he remembered him. B could see similarities, but said, "No". The man said something about Fortescue Bay. B then realised who the man was. The man scruffed his shirt and said, "I hope you haven't told anyone. If you have, I will kill you." B pulled his shirt back, ran to his car, and went home.
There was evidence that, after B complained to the police, a detective named Cosentino showed him a photoboard containing photos of twelve men, and that he identified photo no 2, which was a photograph of the appellant. There was other identification evidence in relation to the charge concerning B. B not only gave evidence that his assailant was a park ranger at Fortescue Bay named Michael. He also correctly remembered the Christian name of the woman with whom the appellant was living at the time, and the Christian name of her son.
The appellant relied on eight grounds of appeal. Some of them were of such a nature that, in order for this Court to adjudicate upon them, it was necessary for evidence to be received. For example, ground 1 raises issues as to the impartiality of the jury, and ground 7 raises issues as to the conduct of the trial by the appellant's counsel, Ms Mainwaring. The appellant and Ms Mainwaring each made affidavits. The appellant was cross-examined before us by counsel for the respondent, and Ms Mainwaring was cross-examined by the appellant.
The appellant was a most unsatisfactory witness. Under cross-examination he was evasive, argumentative and shifty. More than once he made assertions that he soon found himself having to abandon. At times he seemed to be saying anything that he thought might help him. Ms Mainwaring, by contrast, gave frank and clear answers, and showed no sign of hostility or resentment when cross-examined by her former client. Their evidence conflicted in a number of respects. I do not think it is necessary to make a finding in relation to every conflict. However, in relation to each conflict, I accept the evidence of Ms Mainwaring and reject the inconsistent evidence of the appellant.
Impartiality of the jury
The first of the appellant's grounds of appeal reads, "The Court did not appoint a neutral jury."
It appears from the appellant's affidavit that, after he was convicted, he realised that one of the jurors was a man whom he used to know when he was a schoolboy. There were boarders at his high school. The juror was a boarding-house master there. The appellant knew him in that capacity about 30 years ago. The appellant contends that that juror should have told the trial judge of those facts, and not served on the jury. He also contends that other jurors might have known the complainants or other Crown witnesses, and might not have been impartial.
When the jury was empanelled, the learned trial judge, in accordance with the Juries Act 2003, s39, informed them of details of the trial and asked them to raise one hand if any of them had any concern about their impartiality. No jurors responded to that invitation. They were told the name of the appellant; that he was facing a charge of maintaining a sexual relationship with a young person under the age of 17 years, namely A; that there was an allegation that he had committed a number of sexual acts against A; and the names of the potential witnesses, including A and B. (They were not told at that stage that the appellant was also facing a charge of rape relating to B because an application for the indictment to be severed and the two charges tried separately was yet to be dealt with, but nothing turns on that.)
When it is alleged that a judge has been, or might have been, actuated by bias, a new trial will generally be ordered if, in the view of the appellate court, "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee (2000) 205 CLR 337 at 344. The High Court has held that, when a question arises as to the impartiality of a juror, the same test is to be applied: Webb v R (1994) 181 CLR 41. It is therefore necessary to consider whether a fair-minded and informed observer would reasonably have apprehended a lack of impartiality on the part of any juror.
The juror whom the appellant recognised might have remembered him. However there is nothing in the evidence before us to suggest that that juror might have had any cause to be biased against the appellant. There is no reason to think that any of the jurors might not have brought impartial minds to the decision whether each charge had been proved beyond reasonable doubt. This ground must therefore fail.
Refusal of separate trials
Following the empanelment of the jury, counsel for the appellant submitted to the learned trial judge that he should make an order severing the indictment and that the two charges should be tried separately. That application was refused. The appellant contends that it should have been granted (ground 5).
The Crown prosecutor submitted that the evidence concerning A was admissible in relation to the charge concerning B, and vice versa. She submitted that the evidence was cross-admissible both as tendency evidence and as coincidence evidence, pursuant to the Evidence Act 2001, ss97 and 98 respectively. The application was dealt with "on the papers" as contemplated in Hoch v R (1988) 165 CLR 292 at 303 – 304.
There was no likelihood of concoction since A first made a complaint to the police in another State, whereas B had remained in Tasmania, and the two complainants had had no contact with one another before the trial.
There were significant similarities between the events described by the two complainants in the following respects:
(a) At the relevant times, both complainants were prepubescent boys aged 9, 10 or 11 years.
(b)Both complainants described sexual acts at about the same stage in the appellant's life, in about 1989 or 1990.
(c)Both complainants made assertions from which it could be concluded that the appellant ingratiated himself by including them in activities that would interest them.
(d)Both complainants described acts of sodomy that were not preceded by any comment by the appellant as to what he had in mind, or any verbal attempt to obtain consent or acquiescence.
(e)Each complainant asserted that the appellant had continued to have anal intercourse after being asked to stop.
There were, of course, some dissimilarities between the events described by A and those described by B. A described a developing sexual relationship, progressing to anal intercourse, whereas B described a single, sudden unexpected act of buggery. A described a variety of sexual acts, but B described only one. A asserted that the appellant had proceeded to ejaculation on various occasions, but B said he did not know whether the appellant had ejaculated or not. The alleged rape of B was more violent than any alleged act involving A. B claimed to have been threatened, but A did not.
The learned trial judge considered the provisions of the Evidence Act, ss97, 98, 101(2) and 137, and referred to Festa v R (2001) 208 CLR 593 and Papakosmas v R (1999) 196 CLR 297. He reached conclusions to the effect that the evidence of the two complainants was cross-admissible, both as tendency evidence and as coincidence evidence; that the evidence had significant probative value; and that its probative value outweighed any unfair prejudicial effect that it might have on the appellant. No error of fact or law is apparent in his reasoning. He concluded that the dissimilarities relied upon by counsel for the appellant did not significantly detract from the similarities between the events described by the two complainants, and from the probative value of the evidence of those similarities. I think that conclusion was reasonable in all the circumstances.
The learned trial judge had a discretion to order that the two charges be tried separately. This ground of appeal should therefore be determined in accordance with the principles applicable to the appellate review of discretionary decisions: L v Tasmania (2006) 15 Tas R 381 at 402. The applicable principles were stated in House v The King (1936) 55 CLR 499 at 505 as follows:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
In my view, the decision that the two charges should be tried together was the preferable decision in all the circumstances. It was neither unreasonable nor unjust. It avoided the cost and inconvenience of two trials. In particular, it avoided the need for witnesses to give evidence twice. This ground of appeal should fail.
The appellant's hearing impairment
Ground 2 of the grounds of appeal reads, "I suffer from industrial deafness and could not hear all of the court proceedings."
In his affidavit, all that the appellant said in relation to this ground of appeal was the following:
"Please note that during the time that my defence lawyer was speaking, my audio hearing aid was not working. And I was unable to hear everything that was said. Also that when I asked for their advice prior to the trial, I was told not to talk and to trust Rochelle my lawyer. Which I agreed to."
It is important that an accused person should be able to hear and understand every word spoken during his or her trial, and therefore be able to communicate with his or her counsel about things that are said, sometimes urgently. For many years, questions have arisen as to how the courts should deal with accused persons who are too deaf to follow the course of the proceedings against them. In R v Pritchard (1836) 7 Car & P 303, 137 ER 135, in which a jury delivered a verdict finding that a deaf man was unable to follow the proceedings, Alderson B dealt with the accused pursuant to the Criminal Lunatics Act 1800 on the basis that he was unfit to plead. In Ngatayi v R (1980) 147 CLR 1 at 7 – 8, Gibbs, Mason and Wilson JJ reviewed a number of cases in which accused persons were discharged because appropriate interpreters could not be found. In Ebatarinja v Deland (1998) 194 CLR 444, which concerned a deaf mute charged with murder who was unable to communicate with his lawyers, the High Court held that the legislation governing committal proceedings in the Northern Territory prohibited a magistrate from continuing with proceedings that the accused was unable to follow. In this State, the Criminal Code, s402(1), requires this Court to allow the appeal if "on any ground whatsoever there was a miscarriage of justice". I accept that a miscarriage of justice can occur if an accused person is unable, as a result of impaired hearing, adequately to follow the proceedings at his or her trial.
Throughout his trial, the appellant was provided with a "hearing loop" to improve his hearing of the proceedings. When cross-examined during the hearing of the appeal, he said that it had broken down from time to time. However he was provided with a transcript of the trial well before the hearing of this appeal, and has not told the Court of anything said during his trial that he did not hear at the time. In the absence of any assertion that the appellant failed to hear anything significant during the trial, or might have taken a different course in defending the case if he had been able to hear better, it is not possible to conclude that he was disadvantaged by his hearing impairment to such an extent that there was a miscarriage of justice. This ground of appeal must therefore fail.
Impartiality of the trial judge
Ground 3 of the grounds of appeal reads, "The verdict was influenced by Justice Evans."
The appellant made submissions in relation to this ground criticising the style adopted by the learned trial judge during his summing up. He contends that, in various respects, the summing up tended to encourage the jury to find him guilty.
One of the appellant's criticisms is that, when referring to alleged events described by the complainants, the learned trial judge often failed to say "alleged" or "allegedly" when he should have, and thus spoke in such a way as to suggest that the events had truly happened. For example, at one point the learned trial judge said to the jury, "You might recall that before the oral intercourse there was an indecent assault …". The appellant contends that the learned trial judge should have said, "You might recall that before the alleged oral intercourse there was an alleged indecent assault …". It is true that on many occasions the learned trial judge referred to alleged criminal acts without saying "alleged" or "allegedly" but, reading his summing up as a whole, there is absolutely no doubt that he made it very clear to the jury that the acts alleged by the complainants to have taken place were disputed by the appellant, and that the jury needed to consider, in relation to each alleged unlawful sexual act, whether they were satisfied beyond reasonable doubt that it had taken place.
The appellant also referred us to a number of passages where the learned trial judge used the words, "the accused is guilty". For example, at one point his Honour said, "The accused is guilty of sexual intercourse with a young person under 17 years of age if you're satisfied beyond reasonable doubt that he intentionally had sexual intercourse with the complainant …". A little later, his Honour said, "As to indecent assault, the accused is guilty of an indecent assault if you're satisfied beyond reasonable doubt that he by an intentional act indecently assaulted the complainant …". Whenever his Honour used the words, "the accused is guilty" he was not making an absolute statement about the appellant, but fairly explaining the ingredients of the crimes charged.
Another criticism was that the learned trial judge repeatedly used the word "must". For example, when explaining the law in relation to the charge concerning A, he told the jury, "… if you are satisfied beyond reasonable doubt as to the same three or more unlawful sexual acts — there must be three — three or more unlawful sexual acts, the verdict is simply guilty." Each time his Honour used the word "must", he was simply telling the jury that they had to apply the law. There was no occasion when he used the word "must" in such a way as to suggest that they should find the appellant guilty of either charge.
Another of the appellant's criticisms, as I understand it, was that the learned trial judge at times spoke in such a way as to suggest that some point he was emphasising was a critical one for the jury, when the only critical question was whether the conduct alleged by the complainants had occurred. In this context, the appellant referred to the following passage in the summing up:
"… the consent of the complainant is no defence. That is most important, most important — consent and acquiescence save for rape is utterly and completely irrelevant. The law that it is designed to protect children of this age does not allow the fact that they consent to impact on the criminality of the conduct. Just forget about it. Utterly forget about it, except in the context of the two rape — unlawful sexual acts involving [A]."
The appellant submitted that by emphasising points, repeating sentences, and expressing feelings emotionally, the learned trial judge was influencing the verdicts of the jury. As to the passage quoted, he submitted that the question was not whether the acts were unacceptable, but whether the acts occurred.
In my view there was nothing wrong with the learned trial judge emphasising that the consent of a young person was not a defence. It was appropriate that he explain that to the jury very clearly and emphatically since the evidence tended to suggest consensual participation in sexual acts by A. However much emphasis the learned trial judge gave to issues that were not critical, it is quite clear from the transcript of his summing up that the jury could not have lost sight of the fact that the central question for them, in relation to each charge, was whether the conduct described by the relevant complainant occurred or not.
When objection is taken to comments in a summing up, this Court has to decide whether there has been a miscarriage of justice: Criminal Code, s402(1). In order to decide whether there has been a miscarriage of justice, it is necessary not just to consider the passage objected to, but to consider the summing up as a whole: La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72. Taken as a whole, the summing up was fair and balanced. There is no particular aspect of it that could have encouraged the jury to find the appellant guilty of either charge. This ground must fail.
Conduct of defence counsel
Ground 7 of the grounds of appeal reads, "Defence Counsel did not call appropriate witnesses, or use information she was provided with, or adequately defend the charges."
The appellant did not give evidence at his trial. He has not suggested that his counsel should have called him as a witness. His counsel did not call any witnesses or otherwise adduce any evidence. The appellant now contends that she should have called several individuals as defence witnesses.
One of those individuals is B's brother ("C"). The Crown papers prepared for the appellant's trial included a statutory declaration made by C in 2004. In that statutory declaration, C did not say that he had witnessed any sexual activity involving B. He said he had not spoken to B about the alleged rape, but had been told about it by their mother. He gave a description of a ranger named Michael, who he said was at Fortescue Bay when he and his family stayed there between 1988 and 1991. He correctly stated the Christian name of the appellant's then partner, and the Christian name of her son, who was then living with them. He described a boat belonging to the man named Michael as an "18 ft aluminium dinghy with twin motors on the back". It appears from the appellant's affidavit and his oral submissions that he contends that his dinghy was only a 14 ft dinghy; that the dinghy described by C belonged to the previous ranger; and that the previous ranger might have been the person who raped B. In his statutory declaration, C also described an incident when he, B, Michael, Michael's partner, and her son were together in a dinghy. He said that "Michael was jumping the waves and scaring the little kids who he had at the back"; that B and Michael's partner's son jumped overboard; and that Michael's partner had to jump out to save them as they could not swim. According to the appellant's affidavit, he was never involved in any such incident.
The appellant contends that C should have been called at his trial so that circumstantial evidence could be adduced suggesting that B's rapist was a man with an 18 ft aluminium dinghy with twin engines who was once involved in a "children overboard" incident. However that evidence would have been practically worthless. C's statutory declaration was made some 14 years after the events that he described. He therefore could easily have made mistakes as to the characteristics of the appellant's dinghy, or as to who was involved in a "children overboard" incident. The proposition that B might have been raped by the previous ranger was inconsistent with B's evidence that he was on his first trip to Fortescue Bay when the appellant raped him, and with his evidence naming the appellant's then partner and her son.
The advantages of adducing any evidence from C were likely to be outweighed by the disadvantages of the Crown being able to adduce evidence in cross-examination confirming B's association with a ranger named Michael, whose partner had the same Christian name as the appellant's partner, and whose partner's son had the same Christian name as the appellant's partner's son. If C has been called, the jury would probably have concluded that his evidence confirmed that the appellant was acquainted with B. Unless the appellant gave evidence, any evidence from C as to a "children overboard" incident or the characteristics of the appellant's boat would probably have gone uncontradicted. The jury would probably have regarded any evidence as to that incident and that boat as insignificant.
The Crown papers for the appellant's trial included a statutory declaration from another man ("D") who said that he went camping at Fortescue Bay as a boy with B, C and their mother. The appellant submitted that his counsel should have called D as a defence witness at the trial. However D did not claim to have witnessed any sexual activity involving B. He referred in his statutory declaration to a ranger at Fortescue Bay named Michael; to Michael's partner, who had the same Christian name as the appellant's partner; and to her son, who had the same Christian name as the appellant's partner's son. His statutory declaration indicates that, if called, he too might have given evidence that tended to prove an association between B and the appellant. There is nothing in his statutory declaration to suggest that he could have given any evidence of any value to the appellant.
The appellant submitted that his counsel should have called his former partner ("E") to give evidence for him. He submitted that she could have given evidence that she saw no misconduct, that she saw nothing unusual, that A was always happy and cheerful, and that her sexual relationship with the appellant did not involve oral or anal intercourse. In my view none of that evidence, if given, would have been of any probative value. Individuals who commit sex crimes may well give their partners no indication of their activities with their victims. A sexually abused boy could well give an appearance of normality.
The Crown papers also included a statutory declaration made by a woman ("F") who said that for some years she cohabited with B; that he told her in about 2000 of being raped when he was between 6 and 8 years old; that he told her at that time that he did not know who had done it; that he said it happened just once, when he was with his family camping as a child; that he told her at a later date that the man responsible was someone he knew, who had a boy of his own; and that he told her a couple of years before the making of the statutory declaration (in March 2004) that he had just seen the man who raped him. The appellant submitted that F should have been called as a defence witness to give evidence that B had said that he did not know who raped him, and that he was between 6 and 8 years old at the time (not 9 years old as alleged by the Crown); and to give evidence of B's description of the more recent encounter with the rapist. The description of the encounter that she attributed to B differed substantially from B's evidence of the Salamanca Place incident. Evidence from F as to prior statements made by B would have been relevant only to B's credibility but could have been adduced if, but only if, B had denied making those prior statements to F: Evidence Act, s106(c). However, in my view, any evidence that F might have given would probably have had little impact on the jury. B could well have forgotten information about his assailant's identity until the encounter in Salamanca Place revived his memories. B could well have underestimated his age at the time of the rape. If the jury had heard that B had once given F a description of the Salamanca Place incident that was inconsistent with the version of that incident that he gave in his evidence, they might not have regarded that inconsistency as important when evaluating his credibility in relation to the evidence that the appellant raped him. Further, evidence from F as to the Salamanca Place incident could have been quite prejudicial to the appellant since she said in her statutory declaration that, according to B, his assailant, ie the appellant, had kicked B in the groin as hard as he could on the occasion when they met by chance.
The appellant submitted that his counsel should have called a man from Triabunna named Ross Parker. A gave evidence that he was pretty sure that the boat on which sexual acts occurred was dark blue. According to the appellant's evidence, Mr Parker owned the only blue fishing boat at Triabunna at the relevant time; it was kept by him at a private jetty; and the appellant had no access to that jetty or that boat. The Crown papers did not contain any statement or statutory declaration from Mr Parker. He was not called at the committal hearing. Ms Mainwaring gave evidence that the possibility of calling Mr Parker as a witness was discussed with the appellant; that an attempt was made to telephone Mr Parker; that a message was left for him to return the call, but that she was not sure that he ever did; and that she advised the appellant that Mr Parker would not be able to give evidence proving that the appellant had no access to his boat because Mr Parker was not always present at the jetty. On that basis, I think it was reasonable for her not to have done any more about interviewing or calling Mr Parker.
The appellant submitted that B's mother should have been called. As I understand it, the appellant contends that evidence should have been led from her that she did not see or hear anything of any relevance. There is no reason to think she could have given any relevant evidence. When a boy is raped, it is quite possible that the boy's mother will not notice, or remember years later, anything that indicates that an untoward event has occurred.
The appellant submitted that his counsel should have called the partner that he had at the time of his trial, to give evidence that they had a heterosexual relationship not involving oral or anal intercourse. Once again, that would have been irrelevant, since the nature of such a relationship does not tend to disprove the commission of homosexual crimes involving children, particularly when those crimes are alleged to have been committed many years earlier.
As I understand the appellant's submissions, he contends that his counsel should have cross-examined the Crown witnesses as to matters that he disagreed with in the statements and statutory declarations in the Crown papers. However the matters that he disagreed with were of minimal relevance at best. Cross-examination in relation to them would have been unproductive and confusing. For example, nothing could possibly have been gained by cross-examining anyone as to the length of his dinghy, how many engines it had, and whether frightened children had ever jumped overboard from his boat.
Sometimes decisions taken by defence counsel as to the cross-examination and calling of witnesses can be so bad that a miscarriage of justice results: TKWJ v R (2002) 212 CLR 124. This was not such a case. The tactical decisions taken by defence counsel as to the scope of cross-examination and as to not calling any witnesses were reasonable and very sensible. Calling any witnesses would have resulted in defence counsel having to make her final speech before the Crown prosecutor: Criminal Code, s371(d). It is clear from the appellant's evidence that this was explained to him. This ground must fail.
Probative force of the evidence
I will deal with grounds 4 and 6 together. Ground 4 reads, "Both guilty verdicts were based on false witness, not on any truth or fact." Ground 6 reads, "There was zero material evidence to establish the offences ever occurred."
It is not the role of this Court to decide whether the evidence of the complainants was true or untrue. That is the role of the jury. However there are cases in which the evidence presented to a jury is so lacking in probative force that a court of criminal appeal can conclude that the jury should have entertained a reasonable doubt as to the guilt of the accused. In such cases, the court must conclude that a miscarriage of justice has occurred, and quash the conviction. Chidiac v R (1991) 171 CLR 432; M v R (1994) 181 CLR 487. In the latter case, at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
In the light of those authorities, I think grounds 4 and 6 should be treated as raising an issue as to whether the evidence at the trial in relation to each charge lacked probative force to such an extent that the jury ought to have experienced a reasonable doubt.
Some of the appellant's submissions in relation to ground 4 concerned evidence that was not given at his trial. For example, he based arguments upon material in the statutory declaration of C, who did not give evidence at the trial, concerning an 18 ft dinghy with twin engines, the "children overboard" incident, and an estimate by B as to his age when raped that was inconsistent with the evidence at the trial. In evaluating the extent to which the evidence presented at the trial had probative force, any evidence that was not presented at the trial must be ignored.
The appellant referred to the evidence that B had identified his photograph in the photoboard compiled by Detective Cosentino, and made submissions as to the general unreliability of photoboard identification evidence. However there is nothing inherently unacceptable about such evidence: Director of Public Prosecutions v Lynch [2006] TASSC 89. Further, B not only recognised the appellant in his photograph, but also recognised him in Salamanca Place, remembered that his name was Michael, and remembered the Christian names of E and her son.
The appellant referred to a number of minor and peripheral inconsistencies by reference to the trial evidence and the Crown papers. Most of the inconsistencies that he referred to were insignificant. However there were pieces of evidence that he referred to which were significant for the purpose of evaluating the probative force of the Crown case.
When A first made a statement to the police, he said that the appellant's penis was uncircumcised. However the appellant has a circumcised penis. That was an agreed fact at the trial. A was cross-examined about his incorrect assertion. He gave evidence to the effect that he did not know the difference between a circumcised penis and an uncircumcised one at the time of the incidents in question. A's incorrect assertion to the police should be taken into account in assessing the probative force of the Crown case.
E's son gave evidence at the trial that once, in E's kitchen, he saw the appellant put his hand on A's penis. A did not give evidence of that act. The evidence of that act was relevant because it tended to corroborate A's evidence, at least as to the nature of the relationship between A and the appellant. In his submissions, the appellant pointed out that E's son did not directly confirm any of the central allegations made by A. Again, that was a relevant point to make in relation to the assessment of the probative force of the Crown case.
In his submissions relating to ground 6, the appellant emphasised that there was no incriminating scientific evidence as to blood, semen, DNA or the like. Again, that was a valid point to make in relation to the assessment of the probative force of the Crown case.
The appellant submitted that sodomy causes bleeding, but that there was no evidence of either complainant bleeding or showing any physical sign that afforded any sort of corroboration. Sodomy might sometimes cause bleeding, but I am not prepared to accept the appellant's assertion to the effect that it always does.
The evidence of A and B was unshaken. It was open to the jury to conclude that the evidence of A tended to confirm the commission of the crime against B, and vice versa. The evidence of E's son also tended to prove the commission of the crime against A. The evidence of the identification of the appellant was forceful. There were also various minor pieces of evidence that weighed against the appellant. For example, A described an act of anal intercourse in a blue Holden sedan with bench seats; a certificate was tendered showing that the appellant owned a blue Holden car between March 1987 and April 1990; and it was an agreed fact that that vehicle had bench seats. There was nothing inherently unbelievable, unusual or unsatisfactory about the evidence of A and B. As in any trial, there were some points that weighed in favour of the defence. However, considering the evidence as a whole, it cannot be said that the evidence contained discrepancies, displayed inadequacies, or otherwise lacked probative force to such a degree that the jury should have entertained a reasonable doubt in relation to either charge. Grounds 4 and 6 must therefore fail.
The police investigation
Ground 8 of the grounds of appeal reads, "The police investigation was inadequate." At the hearing of the appeal, the appellant submitted that the police should have conducted investigations in relation to three subjects that they did not investigate: Ross Parker's blue boat, the 18 ft aluminium dinghy with twin engines mentioned in C's statutory declaration, and the "children overboard" incident.
It has been held by the High Court that "there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial": Penney v R (1998) 72 ALJR 1316 at 1319. In that case at 1320 – 1321 Callinan J, with whom the other members of the bench agreed, referred to a number of authorities that suggest that, in an extreme case, a police investigation might be so inadequate that the accused is deprived of a fair trial. Ground 8 therefore raises the question whether the appellant was deprived of a fair trial as a result of inadequacies in the police investigation.
The suggested inadequacies in the police investigation were minor and peripheral. There is no reason to think that a thorough investigation of the three subjects in question would have made any difference to the outcome of the trial. If it had been established that Mr Parker owned the only blue fishing boat at Triabunna between December 1988 and October 1989, and that the appellant had never been given permission to board it, it would still have been open to the jury to find that he twice sexually assaulted A aboard that vessel, even if he was there as a trespasser, or that he did so aboard a vessel that was not blue. Even if it were established that the appellant's aluminium dinghy was much less than 18 ft long, and did not have twin engines, that would only have discredited C, who did not give evidence at the trial, in relation to his description of the vessel that the appellant owned some 14 years before he described it. It would not have discredited B's evidence of being raped. Similarly, even if a thorough investigation had established that C's description of a "children overboard" incident was contradicted by everyone else that C claimed was present, that would only have discredited C, and he was not a witness at the trial. It has not been established that the police investigation was so inadequate that the trial was unfair. This ground must fail.
Conclusion
There is no merit in any of the grounds of appeal. In my view, the appellant was simply clutching at straws. The appeal should be dismissed.
File No 445/2007
MICHAEL RAYMOND OUTTRAM v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
5 December 2007
I have read the draft reasons for judgment of Blow J and agree with them. I would also dismiss the appeal.
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