P a v the Queen
[2010] VSCA 85
•23 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 743 of 2008
| PA | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, BUCHANAN and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 March 2010 | |
DATE OF JUDGMENT: | 23 March 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 85 | |
JUDGMENT APPEALED FROM: | R v PA (County Court of Victoria, Judge Wodak; applicant convicted 7 March 2008; applicant sentenced 3 July 2008) | |
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CRIMINAL LAW – Appeal – Conviction – Sexual offences – Two periods of offending – Complaint evidence in each period – Whether capable of constituting recent complaint – Whether first reasonable opportunity – Whether related to offences charged – Defence used complaint evidence to attack complainant’s credibility – No miscarriage of justice – Verdicts not unreasonable – Application refused.
CRIMINAL LAW – Trial – Whether judge adequately summarised evidence, counsel’s addresses – Jury provided with transcript of evidence – Jurors undertook individual reading – Whether permissible – Crimes (Criminal Trials) Act 1999 (Vic) s 19.
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| APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr M J Croucher with Mr K J Dernelley |
MAXWELL P :
The applicant was tried in the County Court on 11 counts, all relating to the same complainant. He was convicted on six counts, comprising three counts of rape, two counts of indecent assault and one count of threatening to inflict serious injury. He was sentenced as follows:
Count Offence Verdict Maximum Sentence Cumulation 1 Indecent assault Guilty 10y 2y 6m 2 Sexual penetration of a child under 10 Not guilty 25y - - 3 Indecent assault Not guilty 10y - - 4 Rape Guilty 25y 5y BASE 5 Incest Not guilty 25y - - 6 Indecent assault Guilty 10y 1y 3m 7 Rape Guilty 25y 5y 1y 3m 8 Incest Not guilty 25y - - 9 Threat to inflict serious injury Guilty 5y 2y 3m 10 Rape Guilty 25y 5y 1y 3m 11 Incest Not guilty 25y - - TES: 8y 6m
NPP: 6y 6m
Sentenced as a serious sexual offender in respect of counts 6, 7 and 10.
Of the counts he faced, three related to the period between February 1986 and April 1988, to which I will refer as ‘the first period’, when the complainant was between six and eight years of age. The remaining counts related to a short period in 2004, when the complainant was 24. I will refer to that as ‘the second period’.
It will be apparent from the table set out above that for each rape count there was a corresponding alternative count of incest. The applicant was acquitted by direction on each of the incest counts. This occurred at the instigation of defence counsel who pointed out – correctly – that the Crown case was in essence rape or nothing. That is, there was no evidentiary basis for an incest count in the alternative.
The applicant now seeks leave to appeal against conviction. In my opinion the application should be refused, for reasons which follow.
Recent complaint evidence
Ground 2: the learned judge erred:
(a)in leaving to the jury the evidence of disclosures by the complainant to the witnesses Monica Rebecca Fritz and Harold Bradley Mack as capable of amounting to evidence of ‘recent complaint’ when it was not open to find that those disclosures were spontaneous complaints made at the first reasonable opportunity;
(b)in failing to give any direction to the jury in light of the prosecutor’s invitation to the jury in his final address to find that the complainant complained to her mother in 1988.
In substance, the contention in ground 2(a) is that the trial judge erred in leaving to the jury two separate pieces of evidence (one relating to each period of alleged offending) as evidence of recent complaint. In my opinion, there was no error in respect of either piece of evidence. In the alternative, if (contrary to my view) there was an error, there was no miscarriage of justice.
The first period
The first complaint was the subject of evidence by a social worker, who told the jury that the complainant said to her on 22 April 1988, ‘Daddy root me’. When asked by the prosecutor to elaborate, the social worker said that she had asked the complainant to repeat what she said or what she meant by what she had said:
… When I asked what she meant she said, “Daddy touch me,” and she was asked where and she just said, “Down there,” pointing to her genital area. My colleague actually then asked her a question about whether she was touched inside or outside and she replied to that too that she was … touched on the inside and that it hurt a little bit.
At the stage of the trial when the evidence was given, the ‘between dates’ specification for counts 1 to 3 was between 22 February 1986 and 22 February 1987. On that view, the alleged complaint was some 14 months after the last occasion on which the offending could have occurred. The trial judge, properly in my view, raised a question about whether this evidence was capable of being viewed as recent complaint. It is clear from the transcript that defence counsel understood exactly the issue his Honour was raising, but at that point did not foreshadow any objection to the evidence being treated in that way. Defence counsel proceeded to cross-examine the complainant about this alleged complaint. In the event, she denied having said those words, but confirmed having given the social worker ‘a description of what occurred’.
Defence counsel told the judge, in the absence of the jury, that she wanted to cross-examine the social worker to establish that the complainant’s mother had ‘relinquished her’ – that is, given her up to foster care – before the date on which the alleged complaint was made. At that stage, defence counsel said to the judge: ‘… [I]t probably was recent complaint because she got her dates wrong. The Crown might need to consider their dates in terms of the 1988 material’. Defence counsel foreshadowed then that she proposed to put an argument to the jury that what was allegedly said on 22 April 1988 did not match what the complainant had said in 2004 in the VATE interview, either about what she had said to the social worker at that time or about what in fact had happened. As will appear, that was the whole basis of the defence case at trial – to challenge the reliability of the complainant’s evidence by pointing to inconsistencies between what she had said at different times.
The social worker accepted in cross-examination that she had had several contacts with the child complainant before the 1988 disclosure was made. She also confirmed that the complainant had gone into foster care before that disclosure occurred. At this stage the prosecutor, again acting quite properly, voiced his unease about whether this evidence could be viewed as evidence of a complaint made at the first reasonable opportunity. Not long afterwards, however, there was an amendment to the presentment in relation to the dates referable to counts 1 to 3. The end date of the period was changed from 22 February 1987 to 22 April 1988. That amendment was not opposed by the defence. It followed, as the judge subsequently pointed out to counsel, that a disclosure made on 22 April 1988 might, in view of the amendment, have been made on the very day the offences were committed.
In my view, the acquiescence of the defence in that amendment amounted to a concession that the evidence was capable of supporting the view that the offending occurred as late as 22 April 1988. As I have said, defence counsel had earlier suggested that the dates might need to be reviewed. Had it been the view of the defence that the evidence could not support the amended end date, the only cogent thing to have done would have been to oppose the amendment.
Subsequently defence counsel told the judge, again in the absence of the jury, that she wanted to challenge the reliability of the complainant’s evidence on grounds, amongst other things, of inconsistency. She explained – with admirable candour, in my view - why she had made a forensic decision to concede that the evidence was capable as being treated as complaint evidence:
Counsel: The last matter was the issue of complaint. I am prepared to say to your Honour and to my learned friend I have made a forensic decision about the complaint evidence. As one often does, because of unreliability and inconsistency, I have admitted essentially that the Monica Fritz evidence, when I could have possibly excluded it – and as your Honour and I have already canvassed this issue, reliability is one of the factors upon which the defence has attacked the – not so much the credit but the reliability of the complainant in addition to an attack upon her credit.
So reliability is really one of the live issues in this case and, therefore, what was said in 1988 has become relevant and the approach that then I’m saddled with, I accept, is that it may then become complaint evidence, or more accurately it’s capable of being treated as complaint evidence.
His Honour: So are you saying that you don’t resist the proposition that the jury, if it accepts the complaint was made and accepts what was said by [the complainant] to Ms Fritz, that it could regard that as corroborative?
Counsel: It’s capable.
His Honour: Capable.
Counsel: Capable, and your Honour then has the usual direction and both pieces of evidence of that nature, and I realise the downside of it, but I rely on – there are inconsistencies in it and when one looks at various discussions in material I’ve read about complaint evidence, there are times when defence counsel admit what is borderline complaint evidence for forensic purposes.
His Honour: Yes
Counsel: I’m conceding that, so that it shuts the door essentially, but it is only capable, and of course I don’t need to remind …
His Honour: No.
Counsel: … your Honour about the directions, your Honour is well familiar [with] what is said to them. It’s only capable, and when one looks at both there are a lot of factors to take into account.
This exchange foreshadowed what became a strong attack, in defence counsel’s final address, on the reliability of the complainant as a historian. Reliability, defence counsel had told the judge, ‘is really one of the live issues in this case’. She subsequently addressed the judge on how the jury should be directed about complaint evidence, so that they would be able to decide whether what were said to be complaints were indeed recent complaints. As will appear, the judge did direct the jury that it was a matter for them to decide, and identified the matters they needed to take into account.
The judge pointed out to counsel that the amendment to the presentment had changed the analysis of what his Honour called ‘recentness’. Defence counsel agreed that that change had ‘changed the character’ of the evidence; that is, the evidence of complaint in the first period. The judge expressed the view that ‘it is capable of being construed as being something that she said on or about the day the event occurred or close to it.’ Defence counsel responded, ‘Yes, or close to it, yes’. When the judge said that there was still the need to look at the alleged complaint ‘to see whether it was a reference to the offences for which [PA] is on trial’, defence counsel said, ‘Yes, that’s the very point’. Counsel reaffirmed that she had chosen this approach deliberately and in full knowledge of the consequences. Soon after this exchange, the judge read out to counsel in the absence of the jury the full draft of that section of the proposed charge dealing with recent complaint. Defence counsel said she took no issue with it: ‘No exception at all’.
In my respectful opinion, this matter was handled with meticulous care by all concerned. His Honour and the prosecutor properly ventilated their concerns but, as is apparent, there was a very significant change in the applicable time scale in relation to the first period, which alleviated the concern the judge had about ‘first reasonable opportunity’. And the issue remained the one identified by defence counsel, that is, whether – even if the complaint was contemporaneous or near enough – it could be said to relate to what was alleged to have occurred in that period.
The submission for the applicant was that this evidence in the first period was not capable of being recent complaint evidence and should therefore not have been left to the jury. I am not persuaded by that submission. Given the uncertainty as to precisely when the offending had occurred, and the coincidence between the end date of the offending period and the date of the complaint, it seems to me it was very much a jury question whether the complaint had been made all (the complainant having denied using the words which the social worker recalled) and, if it had been made, whether it was made at the first reasonable opportunity.
In the resolution of that question, all of the circumstances had to be borne in mind – the age of the child; her relationship with the alleged offender; and the state of emotional turmoil surrounding her removal from her home into foster care in the period before this complaint was made. That sequence of events was something which the defence, for its own purposes, sought to emphasise before the jury. It appears also to have been the foundation of an important final submission by the defence, which was that these allegations really should be seen as retaliatory by the complainant against her mother, who she felt had disowned her by choosing her step-father over herself. There was much emphasis in the cross-examination, as a result, of the enmity between mother and daughter. Those matters had to be considered by the jury in making their judgment about whether this young girl had complained at the earliest reasonable opportunity.
The second period
The complaint in the second period related to the offending alleged to have occurred in the period 1 to 12 May 2004. The witness, Mr Mack, told the Court that on 12 May 2004, while he and the complainant were at the Sunshine Magistrates’ Court, she told him that the applicant had raped her several times. She also told him that the applicant had asked her to remove her clothes so that he could take photos to put on the internet.
The defence attack at trial, and again on the appeal but for different purposes, was directed at the fact that earlier that same day the complainant and Mr Mack had been to the Bacchus Marsh Police Station. As the complainant confirmed in her evidence, she had said nothing to the police about the rapes. In the trial, there was an attack directed at the implausibility of the complaint. On the appeal, it was submitted that there were so many opportunities which the complainant had had during those days in May that on no view was this to be regarded as the first reasonable opportunity. Counsel for the applicant instanced the failure of the complainant to mention this to her mother or her brother or to a doctor whom she was consulting in relation to an abortion.
The complainant, so the transcript shows, gave an explanation that she had not felt safe at the police station and that it was not until she was with Mr Mack at the court that she had felt able to make the disclosure. She said that she had not been able to tell her mother or her brother. She was not pressed in cross-examination to explain her reluctance to tell her brother. It was perfectly clear from the cross-examination why she would have been reluctant to tell her mother, whom she regarded as having chosen her step-father, the alleged offender, over herself. She also gave an explanation, which it was a matter for the jury to judge, that she had said nothing to the members of the family because the applicant, on her version, had threatened violence against her if she told anyone.
In my respectful opinion, this evidence was clearly capable of being recent complaint. It was proximate in time. It related directly, on Mr Mack’s evidence, to the matters with which the applicant was charged in respect of that period; that is, the rapes. Whether it was spontaneous, whether it was the first reasonable opportunity and whether it did relate to the matters charged, were matters for the jury, as his Honour said.
No miscarriage
If, contrary to my view, either of those parts of the Crown evidence was incapable of being recent complaint, I would still reject the ground. Reliance was placed by counsel for the applicant on the decision of this court in R v MAG.[1] There the offending in question had taken place ‘over the better part of one year’. One complaint left to the jury as recent complaint had not been made until the twelfth month of that year, that is, the very end of what was apparently a continuous period of offending. The other complaint was made even later – after the matter had been reported to the police.[2]
[1][2005] VSCA 47.
[2]Ibid [7].
In contrast to the present case, the trial judge there decided the question of whether it was capable of being recent complaint and told the jury that it was. The judge failed to do what the judge in the present case did, that is, leave it to the jury to decide whether it was or it was not. The Court of Appeal (Winneke P) said that the relevant evidence could not be recent complaint because it was not made at the first reasonable opportunity. That was an altogether different case from the present, however, in terms of temporal proximity.
The particular relevance of R v MAG[3] for this case concerns the question which would arise if (contrary to my view) this Court concluded that the complaint evidence here relied on was not capable of being recent complaint. In R v MAG[4] no exception had been taken. The President dealt with that in his reasons, with which the other members of the Court agreed:
… [N]o specific exception was taken by trial counsel for the applicant to the directions given by the judge in respect of “complaint”; which directions I have concluded were deficient. Generally speaking, a failure to take exception to directions given at trial (in particular where trial counsel is experienced) is an indication that no injustice was seen to flow from the directions given, and that the point which appears impressive on appeal had no significance, or no real significance, at trial. However, there is, and can be, no inflexible rule; and where it appears to the appellate court that a miscarriage has been occasioned by erroneous directions; and that the failure to take exception has been due to the inexperience of counsel (as I think was the case here), the Court will not hesitate to intervene. In my view, grounds 2A and 3 have been made out. The convictions should be set aside, and there should be a new trial on the counts on which convictions were recorded.[5]
[3]Ibid.
[4]Ibid.
[5]Citations omitted.
As his Honour said, the failure to take exception will often be regarded as ‘an indication that no injustice was seen to flow from the directions given’. In the event, however, his Honour concluded that there had been a miscarriage of justice. His Honour’s view was that the failure to take exception was a function of inexperience, and that this was an omission which had occasioned a miscarriage of justice.
In the present case, in my opinion, it could not be said that if the evidence had been wrongly left to the jury there had been a miscarriage of justice. First, there was the very carefully considered concession made by defence counsel, a concession which in my opinion it was open to her to make. Secondly, as counsel had clearly foreshadowed, she did seek to utilise the subject matter of the alleged complaints to her client’s advantage. Almost the very first topic dealt with in final address was the complaint and its unreliability and what were said to be inconsistencies between the content of the complaints and the content of the allegations in the VATE tape:
What I suggest is that [the complainant] is just not an accurate historian, and you might have thought initially that those things are not relevant but they are relevant because her account is fundamentally flawed. When you examine her 1988 account, it’s so flawed and so inconsistent that it can’t be relied upon, and if you subject it to the analytical steps that I’ll put before you, you will have difficulty accepting it. The 2004 account is also flawed but in a different way. It’s implausible and is contradictory, and I’ll show you how in a moment when I go through some of the pieces of evidence that are poles apart. You could not ultimately base a verdict on either of those groups of evidence, if we call it that.
…
Between 4 and 10 April, which is another couple of weeks later, she spends six weeks voluntarily – and when I say voluntarily, I mean, the mother spoke about respite care, putting her children with people to give her a week off, basically. Three of them went with the family and [the complainant] went to St Joseph’s, and that was between 4 and 10 April. 12 days after that, she is interviewed again, and she says either, ‘Daddy root me,’ or, ‘Daddy rooted me,’ and I think the evidence in the transcript is, ‘Daddy root me.’ Then she’s asked what that meant. ‘What does that mean?’ ‘Oh, he touched me.’ ‘Did he touch you inside or out?’ ‘Inside and hurt,’ and that’s it. That’s what she comes up with after those interviews.
…
But we now have, 16 years after that in 2004, … a VATE tape, and that’s her evidence. She gives an account in that second tape about what happened, and it just doesn’t match anything like what the eight-year-old said. Some of you, and I suspect more than one or two of you, might have experience with eight-year-olds and might have a view about how eight-year-olds can communicate, and what I’m suggesting by way or argument is that they’re quite capable in most cases of being able to talk about what has happened to them and to remember at 24 this series of events, it’s extraordinary that all those protective workers could get out of her back in 1988 was that very bland statement that comes after she’s already been in that children’s home.
These same issues were the centrepiece of the summary which defence counsel gave at the end of her address, of what she called ‘the ten reasons for reasonable doubt’. Of the first seven of those ten reasons, four or five related to the complaint evidence in one way or another:
10 reasons that I give for reasonable doubt and I’ve already examined them. I’m just going to summarise them. The difference between what she says happened in 1988 now – well, when I say “now”, I mean in her evidence and what she told them back in 1988. Secondly, the sequence of events, the number of times she’s spoken to, been sent to the children’s home and coming back and finally making allegations even though they’re quite different allegations. The third one, her mother, never telling her mother, no disclosure to her mother about what occurred.
The fourth factor is her inaccurate history. Her account is totally unreliable. She is [an] unreliable historian of what occurred to her. The concept that her mother chose her stepfather over her and rejected her is not what [PA] said. They fought for her. They went to court. They used their savings. That’s not what [the complainant] remembered. She also couldn’t remember going back to the house, you’ll recall over the years, from her teenage years, that the evidence of [PA] is she came back many times. She wanted to come back and she always came back but only for a short time.
The 2004 account, she was observed by those around her as behaving usually and she was coming and going from the house with workers, to doctors, to various places and yet she is supposed to have been threatened and terrified with a sledgehammer and tried to escape and you’ll recall she said she tried to escape and was told to get back inside.
I think I’m up to six. The complainant she said was inside the courtroom. Matt said it was outside. Bear in mind that she makes the complaint to Matt and she does so after she’s been with him some time, after they’ve been to a police station. The seventh point, what she actually said to him. She refers to photos and the Internet. She tells the police that she told him about her being penetrated digitally or with a finger and she’s referring to 2004.
In my respectful opinion the course taken by defence counsel was entirely understandable in the circumstances. Her client was evidently not going to give evidence on any of the matters. His record of interview consisted of denials. As senior counsel for the Crown put it this morning, this was essentially a single issue case. The complainant alleged that she had been sexually interfered with in both periods. The applicant denied that he had done any of the things that were alleged.
Inevitably the credibility and reliability of the complainant were crucial. In my opinion it is a perfectly legitimate and understandable forensic decision for defence counsel to take to seek to deploy all available pieces of evidence to attempt to destroy the complainant’s credit. The passages I have set out demonstrate that that is what defence counsel was endeavouring to do. There is no basis, in my opinion, for saying that this approach resulted in a miscarriage of justice. On the contrary, that was how this defence was conducted, for good forensic reasons. These were, it might be said, the most forceful arguments available to the defence as to why the jury might have a reasonable doubt about the complainant’s evidence.
Alleged complaint to mother
I turn to ground 2(b). This concerns a failure by the judge to make any reference in his charge to a matter raised by prosecuting counsel in his final address. The complainant gave evidence in her VATE interview that she had complained to her mother about the offending in the first period. The complainant’s mother gave evidence for the defence and denied that the complainant had made any complaint to her about any such matter. She also denied having told the social worker at that time that the complainant had made any such complaint.
In his final address, the prosecutor submitted that the jury should be satisfied that the complainant had made a complaint to her mother about the offending in the first period. The complaint in ground 2(b) is that his Honour should have given a direction to the jury in light of that submission from the prosecutor. Again, no exception was taken. That is particularly significant, in my opinion, since defence counsel did object to the submission which the prosecutor had made, but on a different ground. As soon as he had finished his address, defence counsel objected that this part of the submission was not supported by the evidence which had been given. It was then pointed out by the prosecutor that there was indeed evidentiary support, and the objection was abandoned.
It seems to me perfectly clear that, if defence counsel had had any concern that there was a risk of this submission from the prosecutor leading the jury to reason impermissibly, she would have raised it. The failure to take exception would suggest strongly that defence counsel did not perceive any risk of injustice. In my opinion, that was an unsurprising view for the defence to take. The evidence was a matter of contest. To have insisted that the judge remind the jury of the evidence of the complainant on that subject matter, which he would have had to do in order to give them a direction about it, would have been only to highlight the account which the complainant had given of making a contemporaneous complaint to her mother. It was in the circumstances an understandable forensic decision to leave the matter entirely alone, on the basis that the less that was said about it, the better. Obviously if defence counsel had thought there was any advantage in having it highlighted to the jury in the way she subsequently highlighted the other complaints, that would also have occurred.
In my opinion, this incident occasioned no injustice to the defence. The evidence was not elevated by the judge to the status of recent complaint evidence. If by mistake the jury had thought it was, they had the clearest instructions from the judge as to what they could and could not do with it.
Summarising the evidence and counsel’s addresses
Ground 3: the learned judge erred in failing adequately to summarize the evidence and counsel’s addresses and to relate such evidence and addresses to the directions of law and the issues to be decided.
Submission: That the jury required a summary of the evidence is demonstrated by their requests during deliberations for the transcript and the playing of the VATEs. They were left to wade through the material rather than having the evidence and counsel’s addresses summarized and related to the directions of law and the issues to be decided. It is submitted that his Honour erred in failing adequately to assist the jury in these ways.
In my opinion this ground fails, for reasons similar to those set out by this Court in R v Dao, as follows:[6]
[6](2005) 156 A Crim R 459, 463–465 (citations omitted) (‘Dao’).
[20] The remaining proposed ground of appeal was founded upon the trial judge’s failure to summarise the evidence in the course of his charge. It is true that his Honour did not do so. Such a failure which would ordinarily mean that the resultant conviction could not stand. This is a matter to which we shall return. But this was no ordinary case. The evidence was of short compass and the issues clearly drawn. The exhibits before the jury contained, in effect, a summary of the oral evidence given, at least on behalf of the Crown. We note that no exception was taken to the charge. This may have been in deference to his Honour’s known disposition not to summarise the evidence, but nevertheless, it would appear to us that the acquiescence of counsel in his Honour’s charge cannot be ignored. We infer from this and from the manner in which counsel themselves dealt with the evidence that they shared his Honour’s perception that the case was a straight-forward conflict of the inferences to be drawn from a simple matrix of fact -- one which the jury would no difficulty in recalling, understanding and evaluating. In the rather unusual circumstances of this case we do not think that his Honour’s failure on this occasion has led to a miscarriage of the trial. We would not wish to leave this matter without making some general observations on this topic.
[21] The duty of a trial judge in charging a criminal jury arises from their respective roles at trial. In its most basic form, this duty requires the judge to define the legal principles necessary for the determination of the case and to communicate them to the jury in a manner which will assist them in carrying out their role. The role of the jury is, of course, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict. The judge, also, has an important role in assisting the jury in its fact-finding function. The judge in the charge must identify the issues and relate them to the evidence in the case; the judge must direct the jury as to the manner in which they must or may or may not use certain evidence; the judge, in the appropriate case, must or may warn the jury to approach certain evidence with caution or not to act upon it without corroboration; and the judge in performing these tasks must do so in a fair and even-handed way. Finally, the judge must put the defence fairly to the jury so that upon their retirement to consider the verdict, they have a clear understanding of what is the position of the accused.
[22] It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them, which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict. It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston, J.A. to deplore the practice of failing to provide a summary of evidence in these terms:
It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.
[23] Any neglect on the part of a trial judge to provide this assistance to the jury brings about the very real risk that the whole trial process will have miscarried with the consequence that the trial may have to be repeated. Such a result is, obviously enough, likely to be serious, if not disastrous, for all concerned: the witnesses and victims must undergo a further unnecessary ordeal; the jurors’ time and services have been wasted; the State’s financial resources have been thrown away both in funding the trial and the appeal; and perhaps the accused might have been required to serve an unnecessary prison term if acquitted on the re-trial and, in any event, the accused must endure the stress of the retrial. This risk is a real one because the verdict will stand only where the appeal court can be satisfied that, notwithstanding the failure of the trial judge, the jury has been able to perform its functions as the due trial process requires.
[24] We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.[7]
[7]Emphasis added.
Two important points emerge from this discussion. First, the court explained and reaffirmed the various aspects of the judge’s obligation to summarise the evidence and relate it to the issues in the trial. Secondly, the court made clear that how much is necessary for the discharge of that duty will depend on the particular case. The trial judge is best placed to assess how much detail is required in order to enable the jury properly to perform its task. There will of course be occasions where the judgment made by the trial judge is so obviously wrong that this Court will intervene, because the jury simply cannot be seen to have been appropriately equipped for its task.
But that is certainly not this case. It is particularly relevant that the evidence in the case had been summarised earlier that same day – that is, the day on which the judge’s charge began – in detail by the prosecutor and again in some detail by the defence. There was no need, in those circumstances, for the judge to do more than give the jury what he described as a brief summary, saying that it was his purpose to refresh their memory. I note that in paragraph 22 of Dao,[8] which I have set out, this Court said that the judge’s task is ‘to remind the jury of the evidence’. In the circumstances, what his Honour said was quite sufficient to achieve that purpose.
[8](2005) 156 A Crim R 459.
Complaint is made under ground 3 that the jury’s request for a transcript of evidence, in particular a transcript of the complainant’s evidence, showed how deficient the charge had been. It was said that this request for evidence showed the dangers of judges failing to assist juries. I reject these arguments. This ground mischaracterises the circumstances in which the jury made its request for access to the transcript. Defence counsel had specifically asked the judge to remind the jury that the complainant’s evidence must be considered as a whole. She specifically wanted the judge to encourage the jury to read the full cross-examination. That is of course what they were given.
As judges conventionally do, his Honour told the jury that the evidence was available to them. When the jury informed the judge after retiring that they wanted the transcript of the evidence, defence counsel expressly said she did not object to that course and had no objection to the VATE transcript being given to the jury. The VATE tape itself was to be viewed only in Court, in accordance with this Court’s decision in R v BAH.[9] Defence counsel said, ‘I take the view that the VATE transcript is really the same as her evidence-in-chief’. With respect, that seems a very sensible view for counsel to have taken.
[9](2002) 5 VR 517.
In dealing with this matter, the judge noted that he had a discretion under s 19 of the Crimes (Criminal Trials) Act 1999 (Vic) to order that copies of materials be provided to the jury in any form that the trial judge might consider to be appropriate. That section provides as follows:
19 Jury documents
(1) For the purpose of helping the jury to understand the issues, the trial judge may order on the application of a party or of his or her own motion that copies of any of the following shall be given to the jury in any form that the trial judge considers appropriate—
(a) the presentment;
(b) the summary of the prosecution opening and the notice of pre-trial admissions of the prosecution;
(c) the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions;
(d) any document admitted as evidence;
(e) any statement of facts;
(f) the opening and closing speeches of the prosecution and the defence;
(g) any address of the trial judge to the jury under section 14;
(h) any schedules, chronologies, charts, diagrams, summaries or other explanatory material;
(i) transcripts of evidence;
(j) transcripts of any audio or audio visual recordings;
(k) the trial judge’s summing up;
(l) any other document that the trial judge thinks fit.
(2) The trial judge may specify in an order under subsection (1) when any material is to be given to the jury.
Section 19 is not often referred to in this Court but, as its text makes clear, it is a very significant provision for the management of jury trials. I note the introductory words, ‘For the purpose of helping the jury to understand the issues …’. It is a power conferred for that specific purpose. It is unambiguously clear that the Victorian Parliament intended to authorise judges to do whatever they considered necessary to assist jurors in their comprehension of the issues. As his Honour noted, s 19(1)(i) specifically authorises the judge to give the jury transcripts of evidence. His Honour was careful to ensure that, as the jurors wanted, they had in relation to the complainant both her evidence-in-chief and the cross-examination.
In my opinion, for jurors to request to see the actual record of the evidence does not suggest, as counsel for the applicant would have it, some ‘dangerous development’ in the way juries conduct their deliberations. On the contrary, it would seem to me to signify a conscientious approach by the jury. They evidently wished to make sure that any decision they arrived at was based on the words actually used, rather than on such imperfect recollection as they might have of what they had heard, or on any summary which the judge might have given. As regards the suggestion by counsel for the applicant that the provision of the transcript to the jury, and its being read out of the court room, represented a departure from the oral tradition, it is sufficient to say that Parliament has made it perfectly clear that the oral tradition may be departed from at least to this extent.
An analogy was sought to be drawn with the decision of this Court in R v Thompson.[10] That was a case concerned with whether written material given by a judge to a jury could take the place of oral directions covering the subject matter of those written materials. The Court concluded that it could not. That issue simply does not arise here. This was not a case of the judge seeking to have the transcript stand as substitute for something he should have been doing himself. On the contrary, the jury wanted the transcript in order better to carry out the task which had been left to them and in respect of which they had already had the judge’s directions. Nothing I have said should be taken as meaning that it would be permissible for a judge to say nothing about the evidence and then say to the jury: ‘I will give you the transcript so you can work it out for yourselves’. That is not what occurred here.
[10][2009] VSCA 144.
In relation to what is said to be a failure to summarise final addresses, again – as Dao[11] makes clear – what is necessary in this regard will depend on the length, complexity and duration of the case and the extent to which there are matters which the judge considers need to be reinforced or explained. As I said earlier, this was correctly characterised as a single issue case. Defence counsel had told the judge that the defence case on the rape counts was, ‘It didn’t happen in its entirety’. The matter could hardly have been simpler.
[11](2005) 156 A Crim R 459.
In the course of the charge, his Honour on numerous occasions identified what was in issue. For example, at one point his Honour said:
The real issue in this trial is whether in relation to Count 6, [PA] touched [the complainant] on the breast as she alleges. It was not suggested in this trial there was any question of consent, you may think. So you may think that the simple issue here, or the real issue here, is did the touching occur as [the complainant] alleges?
In my opinion, what his Honour said was quite sufficient for the jury to understand precisely what they had to decide. In a number of instances he described the Crown case and the defence case side by side. For example:
[The complainant] says that she did not consent to [PA] sexually penetrating her on any of these occasions. [PA] denied that he sexually penetrated her at all. So you may think, and it is a matter for you, that the real issue here is did the act of sexual penetration alleged take place, because no dispute arose as to consent. The issue was, did the act occur? Are you satisfied beyond reasonable doubt that it did?
…
I have already reminded you of the prosecution case concerning Count 4, Count 7 and Count 10 and I will not repeat what I have said about that. When interviewed by the police you will recall that [PA] denied each of these allegations and denied that the physical act had taken place. … You may think that if you accept that the act of penetration of [the complainant]’s vagina by [PA’s] penis took place in whichever count you are concerning, that you will not find it difficult to decide that [PA] was aware that [the complainant] was not consenting or might not be consenting. This is because his defence is that these acts did not happen.
…
The Crown case or the prosecution case, is that [PA] made a threat to inflict serious injury by threatening to hit [the complainant] with a hammer if she did not keep quiet about the sexual penetration of her in the shed. That is Count 7 with which you are there concerned, and that she alleged that this statement was made after the act of sexual penetration that she alleges, took place in the shed. When interviewed by police, [PA] denied that he had uttered or made that threat.
Ground 4 is said to be a particular of ground 3:
Ground 4: A miscarriage of justice resulted from individual members of the jury being allowed to attend court at different times, consider materials and/or deliberate other than as a jury of twelve.
In my opinion, this ground is without substance. I see no difficulty in jurors being permitted, as this judge permitted these jurors, to do private reading of materials which have been given to them in connection with their task. As Harper J pointed out in argument, and as the New South Wales Court of Appeal said in R v Locchi,[12] it is the invariable experience of trial judges that jurors come to court at different times:[13]
… [I]t is the experience of all those who have been involved in jury trials, particularly criminal trials where there are juries of twelve, that sometimes a juror is late and the other jurors spend some time together in the jury room. Always the jurors of necessity arrive at different times, so that assembling in sequence, in series as it were, in the jury room is routine. It can scarcely be presumed that as they come in, they do not talk about the case. So that it is very likely that in almost every trial there is some discussion about the case, not involving the whole of the jury.
Thus, jurors may not all be together in the jury room at all times and it is inevitable, as Samuels JA said in Locchi,[14] that there will be talk about the case.
[12](1991) 22 NSWLR 309 (‘Locchi’) (which Mr Croucher properly referred us to despite it being adverse to his submissions).
[13]Ibid 315 (Samuels JA).
[14]Ibid.
Here it has not been suggested that there was actually such discussion, though it may be assumed that it may have happened. The judge very clearly told the jurors that they had to do their deliberating together: ‘Your discussions, of course, should be together, but if any of you want to do some reading or something like that I see no reason why you can’t’. There is no suggestion that any deliberation in the relevant sense took place otherwise than with the whole jury present.
So far as private reading goes, I would have thought, with respect, that individual reading and reflection on the evidence was essential to the individual juror’s participation in the collective task. Each juror would surely want to be satisfied that he or she had a sufficient appreciation of the issues and of the evidence, in order to develop some views on the issues left to the jury and then to be able to participate in the collective deliberation towards a verdict. Harper J pointed out in the course of argument that there is a standard direction which recognises that individual jurors may reason in different ways to a conclusion. That is both contemplated and acceptable.
Unreasonable verdict
Ground 5: The verdict of guilty on Count 1 is inconsistent with the acquittals on Counts 2 and 3 and is unreasonable or cannot be supported having regard to the evidence.
The submission from the applicant was that there was no rational basis for the jury to have differentiated between count 1 and counts 2 and 3, given that the three counts arose from matters alleged to have occurred either at the same time or in close sequence. In my respectful opinion, the ground fails for the reasons given by the Chief Crown Prosecutor in his written submission:
A jury question indicated that the jury could not reach a unanimous decision on two counts. In response to this His Honour gave the jury a Black Direction [1993 179 CLR 44] which produced a verdict.
Unquestionably the acquittal on counts 2 and 3 resulted from the Black Direction and constituted a compromise on those counts.
The verdicts on counts 2 and 3 do not constitute an affront to logic and common sense and the verdicts are reconcilable on the basis that this was a conscientious jury which properly performed its function and returned its verdicts thirty nine minutes after receiving the Black Direction in relation to the two counts upon which the jury had been unable to agree.
In my opinion what the jury did here can be seen to have been consistent with what the transcript reveals – that it was a conscientious jury conscientiously doing its task. The impossibility, not to mention the undesirability, of determining how the jurors might have arrived at their conclusion is underlined by the passage from the judgment of the High Court in MFA v The Queen[15] to which the senior counsel for the Crown referred us; that is, that there is a variety of reasons why, where an indictment includes multiple counts, the jury may convict on some and not on others. Gleeson CJ, Hayne and Callinan JJ said:
[15](2002) 213 CLR 606.
The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s
evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some
matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirman (20), and referred to in later cases (21): it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
In my opinion, there is nothing about the jury’s conclusion here which betokens unreasonableness or warrants this Court’s intervention.
BUCHANAN JA:
I agree.
HARPER JA:
I also agree.
MAXWELL P:
The decision of the Court is: application refused.
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