Papazoglou v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0117

ATHANASIOS PAPAZOGLOU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2014
DATE OF JUDGMENT:	2 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 194	1^st Revision 18 April 2016 Re-numbering of paras 262–369
JUDGMENT APPEALED FROM:	DPP v Papazoglou (Unreported, County Court of Victoria, Judge Sexton, 3 May 2013) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Adequacy of judge’s charge – Trial judge’s responsibility to identify real issues and summarise relevant evidence – Whether defence case and evidence adequately summarised – Central issue was reliability of complainants – Jury charge sufficient – R v AJS (2005) 12 VR 563 applied – Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to have doubt – R v Klamo (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Limits on cross-examination – Judge’s obligation to manage proceeding – Collateral evidence rule – Issues going to complainant’s credibility – Whether defence unfairly constrained – Limits appropriate – No unfairness – Papazoglou v The Queen (2010) 28 VR 644 applied.

CRIMINAL LAW – Appeal – Conviction – Trial – Witnesses – Prosecutor’s obligation to call – Applicant’s sons said to have been present when offences committed – Substantial time between offending and trial – Younger son had no recollection – Elder son had given evidence at earlier trial – No relevant recollection – Prosecution elected not to call either son – Both witnesses called by defence – Whether prosecution’s decision led to miscarriage of justice – No misuse by prosecution of opportunity to cross-examine – No miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Evidence – Tendency evidence – Two complainants – Whether evidence cross-admissible – Whether significant probative value – Whether collusion reasonably possible – No evidence of collusion – No miscarriage of justice – Evidence Act 2008 ss 97, 101.

CRIMINAL LAW – Appeal – Conviction – Jury – Requirements of jury trial – Juror’s oath – Sufficiency of jury deliberations – Majority verdicts – Perseverance direction – Scope of ‘exclusionary rule’ – Note from jury to judge – One juror said not to be participating in deliberations – Whether individual juror required to participate in collective deliberation – Jury resumed deliberation after direction – No miscarriage of justice – Smith v Western Australia (2014) 250 CLR 473, Black v The Queen (1993) 179 CLR 44 applied – Juries Act 2000 s 46(2) and sch 3.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Ms E McKinnon	John V Hayes & Co Pty Ltd
For the Respondent	Mr B F Kissane with Mr C Boyce	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

Summary

On 23 April 2013, a County Court jury found the applicant guilty of 10 sexual offence charges. This was a retrial, following the 2010 decision of this Court which quashed the convictions from his first trial.[1]
[1]Papazoglou v The Queen (2010) 28 VR 644 (‘Papazoglou [No 1]’).

The applicant now seeks leave to appeal against conviction. For reasons which follow, I would refuse leave to appeal.

Most of the grounds of appeal are concerned with the evidence which was led — or, in particular respects, not led — at the trial, and with questions of admissibility. The overarching ‘unsafe and unsatisfactory’ ground contends that it was not reasonably open to the jury, on the whole of the evidence, to find the applicant guilty of these offences.

Consideration of those grounds has necessitated a thorough review of the entire record, both of the trial and of the pre-trial proceedings. That review is, of course, a pre-condition of this Court’s being able to reach a conclusion about the ‘unsafe’ ground. It also gives this Court a very clear understanding of exactly what went on, before and during the trial.

The process of reviewing the transcript has highlighted the extraordinary length of these proceedings. The trial of the charges before the jury took 37 days. Before the jury were empanelled, however, 38 days had already been spent in pre-trial argument, which required the trial judge to deliver a large number of rulings.[2]
[2]See [67] below.

As will appear, the factual compass of the alleged offending was quite narrow. The offences were said to have been committed on five separate occasions. Four of these involved the younger complainant (‘PL’) and three involved her older sister (‘CS’). The evidence in chief which each complainant gave was quite short.

That being so, it seems quite remarkable that it took 75 days of judge time (the equivalent of 15 sitting weeks), including 37 days of jury time (more than seven sitting weeks), for the trial of these allegations to be prepared and conducted. Indeed, it might be expected that there was some special or unusual feature of the case which would explain such elongated proceedings.

Having read the transcript of the trial and all of the pre-trial rulings, I have been unable to identify any such feature. On the contrary, this trial was much like any other trial of sexual offences, in that the accused denied any sexual contact with the complainants and the defence case essentially consisted of an attack on their credibility and reliability.

In this case, as will appear, the defence attack was concentrated almost solely on PL. What largely accounts for the length of the proceeding is the wide range of hypotheses which the defence sought to pursue, about matters which might have affected PL’s mental state and hence her recollection of events. In my view, there was neither necessity nor justification for the issue of reliability to have been explored at such length. The right to a fair trial does not entitle an accused person to have every speculative possibility explored. It is not in doubt that counsel were acting conscientiously and in good faith in pursuit of what they perceived to be the applicant’s best interests. But that is not the issue.

As counsel for the Crown pointed out on the appeal, most of the issues explored by the defence in relation to PL’s mental state concerned the period after December 1998, when she had made her first statement to police. That was the statement which contained the essential allegations of sexual abuse, the allegations which PL recounted, in very similar terms, in her evidence at the trial. Once the defence had failed to establish any basis for the contention that what PL recalled as at December 1998 was a ‘false memory’, no subsequent change in her mental state — however caused — could have diminished the reliability of that first account of the principal allegations or the reliability of evidence given consistently with that account.

A number of the original grounds of appeal were sensibly abandoned before the hearing. But counsel for the applicant maintained (in ground 3) a series of quite specific complaints about topics which, so it was said, the defence had been prevented from pursuing in the trial. In almost every case, however, what the judge ruled out — quite properly — was a fishing expedition, which the defence had evidently wished to undertake in the hope that something adverse to the credit of PL might turn up. In several of these instances, moreover, pursuit of the issue would have necessitated a collateral investigation into a matter going only to credit, which is of course impermissible. Indeed, it was just such an investigation which caused the applicant’s first trial to miscarry.[3]
[3]Papazoglou [No 1] (2010) 28 VR 644, 654–6 [41]–[47].

The final part of these reasons deals with two grounds which raise more general questions about the conduct of a jury trial. The first (ground 1) concerns the adequacy of the judge’s summary, in her charge to the jury, of the defence case and of the evidence given by the applicant and other defence witnesses. The second (ground 13) concerns the effect on the integrity of the jury’s verdicts of an individual juror’s having apparently come to an early conclusion as to verdict and having refused thereafter to engage in discussions with other jurors. As explained below, I do not consider that, in either respect, there was any departure from the requirements of a fair trial.

Factual background

As mentioned already, the two complainants, PL and CS, are sisters. CS is 11 months older than PL. The applicant was a friend of their parents. The two families had a lot of contact when the girls were young. The applicant had two sons, P and C, who were somewhat younger than the girls.

The Crown case was that the applicant had offended on five separate occasions during the period 1982–86, as follows:

(a) The ‘birthday party’ incident

PL was at the applicant’s house, attending the third birthday party of his son (P). She was wearing a cowgirl suit. The applicant followed PL into the toilet and closed the door. He pulled out his penis and made PL move her hand up and down on it (charge 1 – gross indecency). He then put his penis in her mouth and pulled the back of her neck so that her mouth moved on his penis (charge 2 – sexual penetration of a child under 10).

(b) The ‘hide and seek’ incident

PL and CS were at the applicant’s house. They were playing hide and seek with his sons. The applicant turned off all the lights and then found where PL and CS were hiding. He told them to touch his penis, which each of them did (charges 3 and 4 – gross indecency). The applicant then took PL behind a bar located in the dining room and guided his penis into PL’s mouth by touching the back of her head and making a sliding motion with her head (charge 5 – indecent assault).

(c) The ‘red track suit’ incident

PL and the applicant were alone in the front room of his house. PL was wearing a red track suit. The applicant got undressed and then removed PL’s clothes. The applicant put his arm over PL and put his fingers in her vagina (charge 6 – indecent assault) and then, turning her onto her back, he inserted the tip of his penis into her vagina (charge 7 – sexual penetration of child between 10 and 16). He then inserted something into her anus which made her squeal with pain (charge 8 – indecent assault).

(d) The ‘swimming pool’ incident

PL and CS were at the swimming pool with the applicant and his sons. The applicant was baby-sitting the girls. When PL and the applicant were in the pool together, the applicant put his arms around PL. He then touched her vagina, first on the outside of her bathers and then by putting his fingers inside her bathers (charge 9 – indecent assault).

(e) In the master bedroom

The applicant and CS were alone in the master bedroom of the applicant’s house. She was lying face down on the bed, naked from the waist down. The applicant was on top of her, on all fours. She felt him kissing or licking her lower back, then her bottom and her vagina (charge 10 – indecent assault).

PL subsequently married and had two children of her own. In August 1998, aged 24, PL went to the applicant’s house accompanied by two men, and accused the applicant of sexually abusing her (‘the confrontation’). One of the men was Robert Morando, who gave evidence at the trial. PL has not disclosed the identity of the other male.

PL and Mr Morando subsequently pleaded guilty to falsely imprisoning the applicant and his wife. At the applicant’s first trial, defence counsel sought to expose the circumstances of the confrontation — including by leading evidence — in order to damage PL’s credibility. As a result, the trial miscarried, as this Court subsequently held.[4] (The applicant was represented by different counsel at the second trial).
[4]Ibid.

A few months after the confrontation, in December 1998, PL made her first statement to police. On 3 January 1999, CS made her first statement to police. Each complainant later made a supplementary statement — PL in December 2003 and CS in May 2006. In July 2007, the applicant was committed to stand trial. The first trial took place in March and April 2008. After the applicant’s appeal against conviction was allowed, a retrial was ordered.

Beginning in February 1999 — that is, after she had made her first statement — PL embarked on a series of consultations with counsellors, general practitioners and a psychiatrist, in which she sought help for psychological distress and insomnia. These consultations continued on a regular basis for more than a decade. Such was the number of consultations, and the level of detail at which the defence sought to investigate PL’s mental state at various stages during this period, that the judge found it necessary to prepare and distribute a 14 page chronology, which included relevant extracts from the clinical notes made by the respective practitioners. I have found that chronology indispensable to an understanding of the evidence and to a consideration of the grounds of appeal.

In what follows, there will be reference to a number of the professionals whom PL consulted at different times. It will assist to identify them in advance, and to note when the consultations with each practitioner began and ended. Based on her Honour’s chronology, the relevant sequence was as follows:

·Dr Ratnayake, psychiatrist – September 2000 – November 2001;
·Dr Gupta, general practitioner – June 2001 – December 2011. (Her Honour recorded more than 50 consultations with Dr Gupta over this 10 year period);
·Dr Cartwright, general practitioner and hypnotherapist – August 2001 – July 2006;
·Jim Allan, Anglicare counsellor – November 2001 – July 2002;
[April 2002: PL’s false imprisonment plea]
[December 2003: PL’s second statement to police]
·Pamela Kemeys, EMDR therapist – June 2006 – March 2008;
[July 2007: applicant’s committal hearing]
[March 2008: applicant’s first trial]
·Sally Ann Stone, psychologist – July 2008, August 2009;
·Linda Bearup, EMDR therapist – July 2008 – November 2010;
[August 2009: appeal against conviction succeeds]

The grounds of appeal

The applicant’s original written case, filed in support of his application for leave to appeal against conviction, contained 12 grounds. After reading the respective written cases and reviewing the trial transcript, the Court convened a preliminary hearing at which defence counsel were invited to reconsider a number of grounds which appeared to the Court to have little prospect of success. To their credit, counsel accepted this invitation and, after reviewing their position, elected to abandon five of the grounds entirely and substantial parts of another ground (ground 7).

It is unnecessary to comment on any of the abandoned grounds save one, which contended that there had been a miscarriage of justice ‘as a result of ostensible bias’ on the part of the trial judge. In my respectful opinion, so far from there being any basis for a reasonable apprehension of bias, the judge’s management of this long and difficult trial was unexceptionable.

Every trial must be conducted with reasonable expedition, consistent with fairness. Every trial judge is under an obligation to intervene, in the interests of the administration of justice, as and when necessary to ensure that the available court time is being properly and productively used. This will be particularly so where, as occurred here, there is lengthy cross-examination of witnesses. A trial judge is not only entitled but bound to set reasonable limits on cross-examination, in particular to prevent repetition.

My review of the trial transcript has revealed no occasion on which her Honour intervened in a manner which was either inappropriate or suggestive of partiality. On the contrary, in my respectful view, her Honour’s management of the trial was a model of restraint, patience and fairness.

It should be mentioned that, at the preliminary hearing, counsel for the applicant were informed of this Court’s concern about what appeared to be the undue length of the proceedings — both pre-trial and trial. At the appeal hearing, counsel submitted that because these ‘questions of memory’ regarding PL had not been raised at the first trial, it was important that they be explored. Of necessity, it was said, that exploration took time. Moreover, when defence counsel were confronted with allegations in a police statement, ‘it is for the defence to go digging and see what the defence can find’.

As I have said, it is clear from the transcript that counsel worked conscientiously in defence of their client. But what resulted took far longer, and consumed far more of the available judicial (and prosecutorial) resources, than was reasonably necessary to ensure that the applicant had a fair trial.

The grounds which were maintained range from the general (ground 11: unsafe and unsatisfactory) to the very specific (ground 3: particular topics excluded from the cross-examination of PL). It is convenient to commence at the most general level, with the unsafe and unsatisfactory ground, as this will involve an examination of the central issue in the trial — that of the credibility and reliability of PL. That, in turn, will provide a context within which the specific grounds may be more readily understood.

Ground 11: unsafe and unsatisfactory

For this ground to succeed, the applicant must demonstrate that it was not reasonably open to the jury, on the evidence led at this trial, to be satisfied beyond reasonable doubt of the applicant’s guilt. As is now well understood, it is not sufficient to establish that members of the jury might have had a doubt about his guilt. Rather, success on this ground involves establishing that the jury must have had a doubt, that is, that the doubt to which the evidence gave rise could not have been eradicated or removed.[5]
[5]R v Klamo (2008) 18 VR 644, 653–4 [38]–[40]; Greensill v The Queen (2012) 37 VR 257, 276–7 [81]–[83].

As will appear, the case for the applicant — from the earliest pre-trial hearings to counsel’s final address to the jury — was that PL (and, to a much lesser extent, CS) could not be believed. Counsel’s final words to the jury made this clear, when he asked rhetorically:

The question is, is there too much doubt? …. You know they’re lying. In circumstances where you know they’re lying, how can you rely on them? Would you think it satisfactory to rely on the evidence of [CS] and [PL]? Would you?

For reasons which follow, I have concluded that it was well open to the jury to accept the evidence given respectively by PL and CS. Having read their evidence, both in chief and under cross-examination, and the expert evidence discussed below, I have discerned nothing which must have compelled a reasonable juror to have a doubt about either of them. Indeed, as I will point out, there were occasions on which the cross-examination gave the relevant complainant the opportunity to demonstrate to the jury — and to this Court — just how vividly she recalled the events in question, and just how consistent her recollection of the sexual abuse had been over a period of years.

I deal first, however, with what are said to be significant changes in their evidence, and with the allegation (ground 9) that they colluded together and fabricated the allegations against the applicant.

Change of dates

In her first statement, PL said that the birthday party incident had taken place when she was ‘around five years old’. She had worked this out, she said, by talking with her mother and looking at photographs of herself wearing the cowgirl suit. She recalled that it was the occasion of P’s birthday. The ‘hide and seek’ incident, she said, had occurred when she was ‘around the same age’, that is, five years old. The ‘red track suit’ incident had occurred when she was ‘around seven years old’, and the ‘swimming pool’ incident when she was ‘around eight years old’.

In her second statement, PL said she had been asked by police ‘to try and elaborate on the dates of the events I have previously described’. She said that she had found a photograph of the birthday celebration, in which she could ‘see clearly that I am older than I thought I was’. Under cross examination, PL said that she had heard P’s birthday mentioned at the committal. She realised that she was five years older than P, which meant that she had been eight years old at the time of the first incident.

As to the ‘hide and seek’ incident, PL said in her second statement that she realised that she could not have been five years old, as stated in her first statement, because that would have meant that P was a baby. Under cross-examination, PL said she thought that this incident had occurred after P’s birthday party.

As to the ‘red track suit’ incident, which she associated with playing tennis, PL said in her second statement that she had won a tennis club pennant when she was 11 or 12. Photographs she had seen of herself wearing a red track suit, however, were from a period when she was aged six to eight. In that statement, she said:

I cannot be more accurate about this incident at this stage. The only thing I can really recall about this incident was that it was the most physical. It has had a tremendous impact on my life.

Finally, in relation to the ‘swimming pool’ incident, PL said in her second statement that she recalled the applicant ‘making fun of my changing body shape’. She had commenced puberty as she entered grade six, ‘which meant that I was 11 – 12’.

In her first statement, CS said that the ‘hide and seek’ incident occurred when she was ‘roughly six years old’. She described the applicant having ‘forced us with words to touch his penis’. She had touched it, and she recalled PL having done so. She then described the applicant telling PL and her to suck his penis, at which point she felt ‘uncomfortable and scared’ and ran off.

In her second statement, CS said she had looked at family pictures and school photographs. As a result, she had realised that:

I have been wrong in stating that the abuse occurred when I was about six years old. I realise that I must have been older than that. I believe that it commenced when I was eight – 10 years old. After looking at all the photographs I could place myself back in time to what I looked like and it was not nearly as young as I thought I was.

Senior Constable Andrew Dobson had arranged for the complainants to make their supplementary statements, in 2003 and 2006 respectively. Under cross- examination, he confirmed that he had done everything he could to ensure that there was no collusion.

PL was cross-examined, repeatedly and at length, about these changes in her account of when the offending took place. This was a perfectly proper subject for investigation but, on a number of occasions, the cross-examination had the effect of enabling PL to repeat, in detail, her substantive allegations against the applicant. For example, defence counsel cross-examined PL about the date of the swimming pool incident by reading out extracts from her first statement. She was pressed on her statement (in 1998) that the applicant and his son had called her ‘puffy fanny’. Counsel pointed out that the alleged conversation had taken place some 12 or 13 years before she made the statement, and asked her how she could remember it. Her response was telling:

[H]ow could I forget? Like my body’s changing, I’m a little girl, and I was being teased. I was ashamed of my body, how could I forget? How can I forget? I’m at the edge of the pool and they were making fun of me. About my breasts, about down below. It’s not something that you forget. I was scarred.

Exactly the same happened in the cross-examination of CS. In cross-examining her about the change of age in relation to the ‘hide and seek’ incident, defence counsel put to her extracts from her first statement, and from her committal evidence, in which she had described in detail what it had felt like when the applicant ‘forced us with words to touch his penis’. This served to highlight the clarity of her recollection and the consistency of her account. She was likewise asked, more than once, to confirm that she recalled PL being questioned by their mother about money found in her clothing. This supported evidence given earlier by PL, that she was given money by the applicant after the ‘red tracksuit’ incident.

In my opinion, there was nothing about this aspect of the complainants’ evidence — concerning their ages at the relevant times — which obliged the jury to doubt the veracity of the evidence they were giving. The jury were entitled, in my view, to regard as unremarkable the sequence of statements, and the correction of the dates after a viewing of family photographs, given how young the girls were when the offending allegedly took place and given the lapse of time between the alleged events and the making of the original statements. The jury were entitled, moreover, to regard as of much greater significance the clarity and consistency of the accounts of the sexual abuse which the complainants gave in evidence, and the consistency between their evidence at trial and the content of their police statements made more than a decade earlier.

Cross-examination about what were said to be prior inconsistent statements had similar consequences. For example, in cross-examining PL about the ‘red track suit’ incident, defence counsel read out almost the entirety of her original 1998 description of the incident, with its detailed account of the various sexual acts she alleged had occurred. The point of the cross-examination was to demonstrate that, in the period between her initial interview with police on 25 November 1998 and the making of the statement on 17 December 1998, she had firmed up her recollection of one particular aspect. The following exchange took place:

COUNSEL:Are these things that you’d remembered in that period of three weeks that you couldn’t remember before?–––No, I’ve – I’ve – I – know that. How do I say that. I think I expressed to you that I spent my whole life trying not to remember it, so I don’t want to remember it, I don’t think of it. I – if I start thinking of something, I would block myself from trying to remember. So when you allow yourself to remember you allow yourself to remember and that means you start remembering everything, instead of blocking it all, your thought – your memories.
OK?–––OK, and I do remember it. I do remember it very clearly, as I’ve stated, because – I can visualise it, I can see it happening.

PL was cross-examined about another change in her version of events. In her original description of the ‘hide and seek’ incident, she said that she alone had touched the applicant’s penis. Giving evidence at the committal hearing in July 2007, however, she amended her statement to include the statement that her sister had touched the applicant’s penis. She was asked in cross-examination why she had changed it. Her answer was:

Because when I went to the police station I was thinking about me, it was about me. I had no – I wasn’t thinking about anything else. It was just me so I was talking and then that’s how I saw it. I remembered I touched his – I remember him standing there but I couldn’t, I didn’t picture, I couldn’t see, I thought my sister ran away. And then when I thought about it then I realised that she was, that she touched it too and then she ran away.

Defence counsel pointed out that she had made no such change when doing her supplementary statement in December 2003. She agreed with counsel that her memory had improved in the period between the first statement and the committal. Asked how it had improved, PL answered, ‘Because I allowed myself to remember everything’.

The possibility of collusion between PL and CS (ground 9)

Before the trial commenced, the judge was required to rule on the cross-admissibility of the evidence to be given respectively by PL and CS. The submission for the Crown was that the evidence of each complainant in support of each charge was cross-admissible in proof of each other charge concerning that complainant, and in proof of each charge concerning the other complainant.

The prosecution had served a tendency notice in accordance with s 97(1)(a) of the Evidence Act 2008 (‘EvidenceAct’). The notice stated that the evidence would be led to establish the tendency of the applicant to act upon a sexual attraction to his friends’ daughters, in circumstances where:

(a) each complainant was a female child;

(b) their parents were not present;

(c) the applicant was a trusted family friend; and

(d) he had the opportunity to entice them away and offend against them in isolation from others.

As her Honour noted, in determining cross-admissibility she was obliged to decide whether the evidence in question was of significant probative value and, if so, whether its probative value substantially outweighed any prejudicial effect on the accused.[6] In making that decision, her Honour also had to determine whether — as the defence contended — there was a reasonable possibility of collusion and concoction between PL and CS.
[6]Evidence Act ss 97(1), 101.

As noted in her Honour’s ruling, the defence submission was that the complainants had changed their accounts in such a way, and so long after the alleged events, as to give rise to the reasonable possibility that there was concoction. It was submitted, further, that the sisters had a motive to fabricate allegations of sexual assault against the applicant, as the statements were made four to five months after the 1998 confrontation. The suggested motive was to protect PL from the likely legal consequences arising from the confrontation.

Her Honour concluded that there was no reasonable possibility of concoction. She had the unusual advantage of being able to refer to the evidence which the complainants had respectively given at the applicant’s first trial. As her Honour noted, on that occasion each of them had given evidence that she had not fabricated the allegations, that she had not talked to her sister in detail about what had happened and that she had not colluded with her sister.

Her Honour made the reasonable assumption that the complainants would give evidence to similar effect in the forthcoming trial and, on that basis, was satisfied that the possibility of concoction was effectively excluded. Her Honour said:

While a denial of concoction is not necessarily decisive, in this case the complainants have been extensively cross-examined on the topic [at the first trial]. I am satisfied that the complainants have not discussed the detail of their allegations, that PL did not read either of CS’s statements, that CS read PL’s statement but only years after she made hers, and made no changes to her evidence following that, and as a result of all of this evidence I am satisfied that the possibility of concoction has been excluded.
While the matters raised by the defence may be put to the complainants in this trial for this jury to assess their credibility, in undertaking my task of forming an opinion about the weight that a jury could reasonably assign to the proposed evidence, I am satisfied that it is open to the jury to find that there is no concoction.

At the trial, following the conclusion of the complainants’ evidence, her Honour revisited the question of collusion with counsel. Defence counsel submitted that what had transpired showed that there was more than a reasonable possibility of collusion. There was now ‘clear evidence’ of collusion, counsel submitted. He drew attention to the following matters:

(a) each complainant had made similar errors as to their ages at the time of the alleged offending;

(b) CS had admitted reading a statement made by PL and had afterwards (in her second statement) made an alteration of her stated age;

(c) CS had conceded at PL’s 2002 plea hearing that she had spoken to PL; and

(d) there was a coincidence between CS saying in her original statement that the applicant had made her touch his penis and PL then giving that evidence at the committal.

In a detailed ruling, her Honour noted that — as in the first trial — each complainant in giving evidence had denied collusion and had denied having had a motive to fabricate allegations against the applicant. Her Honour noted, however, that circumstances had changed in one respect, as a result of evidence given by CS that she had read a statement of PL before making her own second statement, though after she had made her first. Her Honour continued:

There is no evidence of changes to the detail of the allegations of either complainant following CS reading a statement of PL. There is evidence of potential additional support for PL by CS stating that she recalled their mother finding money which she admitted in evidence here was a memory jogged by reading PL’s statement.
On the basis of these particular pieces of evidence and in particular that last one, I find that there is a possibility of innocent infection, at the very least and of collusion at the worst, from the prosecution’s point of view. Whether and to what extent such a possibility affects the probative value of the evidence relied on is a matter for me to decide. That is clear from PNJ and confirmed in Dupas. I have decided that this possibility does not reduce the probative value of the tendency evidence below the significant level it must reach for admission. The tendency evidence specifically relied on by the prosecution is in the first statements of each complainant and there is no evidence that raises a possibility that the complainants colluded or that CS was innocently infected before each complainant made their first statements. That is a finding that I made in [the] 26 February ruling and that is not disturbed by the evidence that has been had in this trial.
I have considered afresh the quality and the reliability of the evidence as it has now been given before this jury and consequently before me. Taking all the matters raised as to reliability into account, it is still my view that it is open to the jury to decide that the evidence of each complainant has significant probative value to the other charges relating to that individual complainant and to the charges relating to the other complainant.

The applicant’s appeal submission repeated the contention — which the judge had rejected — that collusion was not merely a possibility but ‘was proven and admitted’. The submission identified a number of aspects of the evidence which, it was said, demonstrated that this was so.

It is unnecessary to deal with the individual aspects of the evidence which are relied on. I have read the evidence of the complainants in its entirety and I am satisfied that it was well open to her Honour to reach the conclusion that she did. Quite properly, each complainant was pressed hard in cross-examination about when, and why, she had made changes in her account. Nothing said in response made the denials of collusion implausible.

More particularly, on the critical questions which went to cross-admissibility — the similarities between the accounts given by the respective complainants[7] — there was no risk that those similarities were the product of collusion. The existence of those similarities was established at the outset, by the initial statements made by the complainants in December 1998 and January 1999 respectively. There was no evidence of collusion before those statements were made. Nothing which happened subsequently could have affected the conclusion that evidence given in accordance with those statements — as it was — had significant probative value.
[7]Velkoski v The Queen [2014] VSCA 121.

This ground fails.

The defence attack on PL

On 30 October 2012, the trial judge ruled against an application by the defence to have the evidence of PL excluded pursuant to s 137 of the Evidence Act. The defence submission, as recorded in the ruling, was that the probative value of her evidence was almost non-existent because of its unreliability.

According to her Honour’s ruling, the evidence was said to be unreliable because:

(1) it is based on false memory or confabulation;
(2)her memories may be contaminated by counselling, including eye movement de-sensitisation and repossessing therapy (EMDR) and hypnosis;

(3)       her memories may be influenced by—
(a)       a psychiatric condition or symptoms;
(b)       illicit and prescription drug use; and
(c)       the passage of time.

While refusing to exclude the evidence of PL, her Honour accepted that ‘the potential issues affecting her reliability’ raised by the defence were important and should be the subject of evidence. She agreed with the Crown that these issues raised an alternative explanation for the allegations, other than their being a truthful account of what occurred.

As can be seen, the defence case as thus formulated was directed at PL’s reliability properly so-called. That is, the unifying proposition was that, while PL might be an honest — and therefore credible — witness, her account was unreliable because of the involuntary effect on her of one or more of these factors. As noted earlier, however, the defence also challenged PL’s credit and, in final address, accused her of telling ‘deliberate lies to bolster her credit’.

In what follows, I will for convenience use the word ‘reliability’ to include credibility. This reflects the fact that, overwhelmingly, the defence case was directed at the reliability issues properly so-called, that is, the factors which — so it was contended — had contaminated PL’s recollection through no fault of her own. The defence pursued each of these issues in cross-examination of PL and other Crown witnesses, and in the evidence led from the defence expert, Dr Gibbs. And they occupied almost the entirety of defence counsel’s address to the jury.

What is striking about the defence attack on the reliability of PL’s evidence is how speculative and uncertain it seems to have been, throughout the trial. From first to last, the questions put in cross-examination of Crown witnesses appear to have been asked more in hope than in expectation. This is most clearly exemplified by the extraordinarily lengthy and repetitious cross-examination of PL, which took more than five days of court time, and filled almost 500 pages of transcript.

No discernible ‘case theory’ emerges from that cross-examination, beyond a general theme to the effect that there were all sorts of possible influences on PL, at various times, which might cast doubt on her account of the alleged sexual abuse. The overriding impression gained from reading the transcript is that the defence were clutching at straws. It is quite likely, in my view, that the jury were left with the same impression.

The scattergun approach adopted by the defence is illustrated by the wide range of different topics which defence counsel pursued as possible sources of contamination of PL’s memory. The principal topics are listed below, with my summary of what the evidence revealed:

(a) False or recovered memory: no evidentiary basis was established for the drawing of this inference. Specifically, there was no evidence of:

(i) any counselling by a ‘false memory’ therapist;

(ii) any counselling before PL made her first police statement in 1998; or

(iii) any nexus between any counselling session and any material change in her version of events.

(b) EMDR:[8] both therapists were clear that they did not ask PL to recount her memories, for the very reason that it can be re-traumatising to do so. Pressed by defence counsel on whether EMDR can change memory, Ms Bearup said that it did not. Rather, its whole purpose was
[8]‘Eye movement desensitisation and reprocessing’.

to reduce the emotional arousal that the person can’t manage in the moment. It takes the sting out of the pain. … It changes their experience of the pain in the memory.

(c) Hypnotherapy: the treatment by Dr Cartwright in 2001 did not involve regression (going back to PL’s earlier memories) because he was aware that they were traumatic. Dr Cartwright purposely did not mention the events which had caused PL to become so anxious . Professor Mullen confirmed that the Spiegel technique used by Dr Cartwright was designed to reduce anxiety. It was quite different from techniques which are used ‘to try and access memories [and] … to try and improve memory’.

(d) Was PL psychotic (and if so when)?: this was approached by reference to both the observations of practitioners and the medications which were prescribed for PL at various times, as follows:

(i) Dr Ratnayake, the psychiatrist, prescribed Stelazine in September 2001, because she thought PL might be hypomanic (low-level mania). According to her notes, Dr Ratnayake thought PL’s fears of being harmed by strangers ‘may have come close to delusion’. Dr Ratnayake’s only firm diagnosis of PL, however, was of major depression, in 2000;

(ii) Dr Gupta, the general practitioner, prescribed Zyprexa in 2003–5, and again in 2008. When he saw her in August 2009, he thought she ‘looked psychotic’. He referred her to a psychologist the same day, who did not think she was psychotic but just ‘very emotionally distressed’. Dr Gupta’s explanation of why he had prescribed Zyprexa for PL was very vague;

(iii) Dr Cartwright pointed out that, while Zyprexa was an anti-psychotic drug used for schizophrenia and bipolar disorder, it was ‘particularly good for severe anxiety’;

(iv) PL’s evidence was that Zyprexa was prescribed for her at a low dose, for anxiety;

(v) pressed by defence counsel about Dr Gupta’s note — which said that PL on 14 August 2009 ‘looked psychotic’ — Professor Mullen said:

I’ve practised psychiatry for over 40 years. I have no idea … what … ‘[l]ooking psychotic’ might mean.
Professor Mullen also said that Dr Gupta was in error in equating nightmares with hallucinations.

(e) Use of marijuana: according to Dr Ratnayake’s report of 31 July 2001, PL told her that she was using 15 bongs of marijuana a day. According to Dr Ratnayake’s earlier report of September 2000, the marijuana use was recorded as having started after PL separated from her husband in December 1998. PL was repeatedly cross-examined about this. Her evidence was that she had used marijuana occasionally. She said it was for her panic attacks.

A number of other hypotheses were explored in cross-examination. Thus there was an attempt to ascertain whether PL had taken steroids during the period 1996–1998, even though there was no evidence as to how — if this had occurred — it might have affected PL’s state of mind.[9] And, in cross-examination of the prosecution expert, Professor Mullen, defence counsel also asked questions variously about dream interpretation, ‘age regression’, and ‘body memory’.[10]
[9]See [142]–[151] below.
[10]See [95]–[96], [114]–[115] below.

The principal topic, however, was that of ‘false memory syndrome’. Professor Mullen’s description of ‘false memory’ or ‘recovered memory’ is set out below. It was not challenged in the course of the lengthy cross-examination of Professor Mullen by defence counsel.

The alternative explanation which the defence evidently wished to raise for the jury’s consideration, on this aspect of the case, was that what PL claimed were actual memories of sexual abuse by the applicant were ‘false memories’. By that was meant purported recollections of events, having no foundation in fact but created in PL’s mind by a counsellor or therapist in the course of attempting to relieve her (acknowledged) psychological distress. It is necessary, in order to explain how this topic — and a number of the other unreliability topics — were litigated in this trial, to set out the course of events in some detail.

The pre-trial rulings

As noted earlier, her Honour was obliged to deal with a large number of issues before the trial commenced. As will appear, some issues had to be addressed more than once. The successive rulings dealt with:

1.Whether PL’s evidence should be excluded.
2.Defence application for permanent stay.
3.Admissibility of evidence:
·from, and concerning, Mr Morando;
·concerning an intervention order taken out by PL against her husband;
·contained in counselling notes;
·contained in statements of the complainants’ parents;
·concerning the confrontation;
·to be obtained by cross-examination of PL regarding marijuana use; and
·from counsellors, medical practitioners and Professor Mullen.

4.Application for the judge to disqualify herself on the basis of apprehended bias.
5.Evidence of Mr Morando; evidence of Professor Mullen.
6.Review of admissibility rulings in the light of Court of Appeal decision in Dupas v The Queen.[11]
7.Cross-admissibility of complainants’ evidence as tendency evidence.
8.Admissibility of counselling evidence.
9.Evidence as to identity of second person at confrontation.

[11](2012) 218 A Crim R 507 (‘Dupas’).

Two of these rulings were the subject of an interlocutory appeal to this Court. On 7 December 2012, the Court (Buchanan JA and Williams AJA) refused leave to appeal from the trial judge’s refusal to disqualify herself on the ground of apprehended bias, and from her refusal to grant a permanent stay of the proceedings.[12]
[12]PA v The Queen [2012] VSCA 294 (‘PA’).

As to the first, their Honours concluded that there was no basis for the contention that her Honour had prejudged the issues or failed to accord the applicant natural justice. As to the stay application, counsel for the applicant had relied in part on the possible contamination of PL’s memories by hypnotherapy and EMDR therapy, matters which had only emerged after the first trial. The Court concluded that those were matters for the jury, as her Honour had ruled. As to the applicant’s complaint about missing medical records, the court noted[13] her Honour’s conclusion that there was no evidence that any such records had ever existed, and her reference to the statement by the High Court in R v Edwards[14] that it was

not correct to characterise the loss of access to records which could possibly have existed as occasioning prejudice to the accused.
[13]Ibid [37].
[14](2009) 255 ALR 399, 406 [33].

‘False memory syndrome’

It was obviously important for the defence to establish whether PL had had counselling before she made her first statement to the police in December 1998. Without evidence of such counselling, it could hardly be said that what PL was purporting to recount in that statement as fact was, in truth, a false memory which had been implanted by a counsellor or therapist. As the judge pointed out to defence counsel during the trial, and counsel accepted, this point had been made very clearly by Professor Mullen in a report prepared well before the trial began.

On 13 November 2012, the judge ruled that she would not permit evidence to be led from Mr Morando to establish that PL had had counselling before August 1998 (when the confrontation took place) and before December 1998 (when she made her first statement to police). The judge subsequently reversed this ruling, however, as this Court noted in the interlocutory appeal judgment on 7 December 2012.[15] (The Court noted that her Honour’s preparedness to revisit and change her ruling ‘displayed an open rather than a closed mind’.[16])
[15]PA [2012] VSCA 294, [12].
[16]Ibid [14].

In a brief ruling on 14 November, her Honour accepted that the defence were not ‘asking the jury to speculate about the contents of [pre-1998] counselling’. Her Honour accepted that the defence could properly advance the following contention — that, if the jury accepted the evidence of Mr Morando that there was counselling before August 1998, then the prosecution could not exclude the possibility that such counselling ‘did have an effect on her ability to reliably recount events primarily before making her first statement’.

As noted earlier, the confrontation took place in August 1998. Mr Morando was interviewed by police on 27 April 2001. When asked at interview how long he had known PL at the time of the incident, he said ‘for about two years’. Mr Morando accepted that that meant he had probably known her since 1996.

Mr Morando was quite sure he had not taken PL to counselling. He knew she was getting counselling, because she told him so. He was then asked whether she was getting counselling prior to the incident in 1998. He answered:

Prior to the incident in 1998? No. I think – I’m – she was getting counselling at that time after what happened to her.

When asked when he saw PL ‘go downhill’, Mr Morando said that he thought it was after the confrontation. When asked whether her getting counselling was part of her going downhill before the confrontation, he said he could not recall. Ultimately, Mr Morando accepted that he could not say that PL had not seen a counsellor prior to the confrontation. In re-examination, he said that PL did seek counselling after the confrontation.

The evidence on this question was thus wholly inconclusive. Moreover, as the Crown pointed out on the appeal, there was contemporaneous evidence indicating that PL had not had counselling before she made her first statement. Sheryl Musgrove was a sexual assault counsellor, whom PL first saw in February 1999. Ms Musgrove gave evidence about the intake document which PL had filled out when she first attended for counselling, according to which she had had no previous counselling.

There being no evidence of any ‘false memory’ counselling at any relevant time, the defence mounted an unconvincing argument founded on a book called ‘The Courage to Heal’. This book, which PL denied ever having read, featured prominently in the cross-examination of Professor Mullen, and in the evidence led from the defence expert, Dr Gibbs.

The defence theory — which was maintained on the appeal, in support of the unsafe and unsatisfactory ground — was to the following effect:

·Dr Gibbs gave evidence that the concept of confrontation featured heavily in self-help literature such as ‘The Courage to Heal’;
·PL admitted to owning ‘Trust after Trauma’, a self-help book which recommended ‘The Courage to Heal’ as the appropriate text to follow in engaging in ‘confrontations to heal’;
·‘The Courage to Heal’ recommended confrontation as a method of healing. It was also a ‘manual for recovered memory’;
·the confrontation that was arranged by PL was ‘remarkably similar’ to that recommended in the book;
·PL must therefore have read the book and must have been exposed to views which supported ‘recovered memory’.

Plainly enough, even if it had been established that PL had read the book and had followed its recommendations about confrontation, this could never have provided a foundation for the ‘false memory’ hypothesis. Not surprisingly, there was no suggestion that merely reading the book could have had the effect of implanting false memories into a reader’s mind.

Admissibility of Professor Mullen’s evidence

On 13 November 2012, the judge ruled on a number of admissibility questions. In relation to Professor Mullen’s evidence, she said:

While there seems to be general agreement that the prosecution are entitled to lead evidence from Professor Mullen pursuant to s 108C, there may be some aspects of his evidence still to be ruled upon.

There was subsequently a debate about whether evidence could be led from Professor Mullen dealing with particular issues. On 14 November, the judge gave an advance ruling, as follows:

[A]s things currently stand I would permit evidence to be led in rebuttal to show that PL’s behaviour or reaction or delay in complaining, or marijuana use, or mental health condition is consistent with … a cohort of adults observed by Professor Mullen who are said to have been abused as children. His evidence, as I understand it, would be no more than that.
… [I]t will be emphasised to [the jury] that they can only decide if the alleged events happened on the basis of the evidence of those alleged events and not on any other basis.

Her Honour revisited this issue in her ruling of 26 February 2013, which followed the Court of Appeal decision in Dupas.[17] In that ruling, her Honour said she was satisfied that Professor Mullen had specialised knowledge and that:

[T]he proposed evidence is evidence of an opinion that is based on that knowledge, and could substantially [a]ffect assessment of PL’s credibility. I consider the evidence is relevant to the fact in issue as rebuttal evidence.
The fact in issue is whether the alleged offences occurred in respect of both complainants. Insofar as PL is concerned, the additional issue is whether the possibility exists that her evidence is based on memories that are false or have been contaminated by processes undertaken in counselling, or affected by a psychiatric disorder or by drug use, both illicit and prescription, or by the passage of time.

[17](2012) 218 A Crim R 507.

Her Honour then dealt with the defence objection that there was a danger of unfair prejudice arising from Professor Mullen’s evidence, in that the jury might reason that, if PL had long-term effects consistent with those observed by Professor Mullen, then she was probably sexually abused by the accused. Her Honour said:

There are two ways to deal with that potential prejudicial unfairness. First, the jury will be directed in the usual way about expert evidence and, in particular as I stated in Ruling Number 12, that they can only decide if the alleged events happened on the basis of the evidence of those alleged offences and not on any other basis.
Second, as stated in MA[18] at paragraph 22, the expert evidence cannot establish that it is probable that PL is telling the truth, but it can establish that her issues are not demonstrative of untruthfulness, nor give rise to such unreliability that she is unable to sufficiently recount the events. The jury will be directed accordingly.
The evidence of Professor Mullen could establish that the factors tending towards unreliability are of neutral significance, but his opinion that many of her issues are consistent with issues affecting adult victims of child sexual abuse could not demonstrate that this consistency renders it more or less likely that the offending occurred as alleged. The opinion evidence will not seek to, nor can it, establish that the existence of issues in PL, consistent with issues affecting adult victims of child sexual abuse is positively confirmatory of PL being sexually abused by the accused man. The expert evidence is rebuttal evidence, seeking to neutralise the matters raised as an attack on PL's credibility, which includes her reliability.
In my view there is no danger of unfair prejudice. I am satisfied the jury will follow directions as to the expert evidence and the other applicable directions as I have referred to, and will therefore not give the evidence greater weight than it deserves. I expect the jury to be able to properly evaluate the basis for Professor Mullen's opinion and the extent to which it could rationally assist them in assessing the credibility, including reliability, of PL.
[18]MA v The Queen (2013) 226 A Crim R 575.

The evidence of Professor Mullen

At the conclusion of his evidence in chief, Professor Mullen was asked by the prosecutor to explain to the jury what ‘false memories’ were. Using the phrases ‘false memory syndrome’ or ‘recovered memories’, Professor Mullen explained that in the 1980s and 1990s there was a belief among some people who treated those reporting child sexual abuse that such abuse produced a ‘typical pattern of disorder’, which included dissociation, anxiety, dreams and eating disorders. Those therapists believed that a person who had one of those disorders must have been sexually abused.

Such a therapist might ask a patient whether she had been sexually abused. If the answer was, ‘No, I have no recollection of that having happened’, then according to Professor Mullen the therapist would

really essentially tell them that because you’ve got these problems, it is almost certain that you have been sexually abused but you have repressed the memory, and they would then set about recovering this repressed memory. In other words, a person would have no memory of being sexually abused, they’d never had a memory of being sexually abused and they are told by their therapist that they have been sexually abused, and the therapist then goes about recovering it from their unconscious.

Professor Mullen was very critical of this methodology:

[F]irst of all, there is no collection of symptoms or disorders which means someone has to have been sexually abused, so it’s just simply not true. So they were starting off from a false assumption. Secondly, the processes they used to recover these memories were really designed to implant the memories. They thought that they were drawing them out of the unconscious, whatever they thought that that was, but what they were actually doing was shaping and creating in combination with their patient, false memories of sexual abuse and it caused terrible, terrible damage.

At the same time, Professor Mullen pointed out, memories of sexual abuse can be forgotten. This is

usually because the sexual abuse occurred early in life, when it’s difficult or in some cases impossible to remember. … [S]ome people will say ‘There was a time in my life when I didn’t remember it’. If you explore that, what they almost always mean is, ‘There was a time in my life when I did not think about it. Where I just put it to one side and refused to think about it’. Not that they’d forgotten it, they just decided that it was not helpful to dwell on it and they pushed it to one side. So yes, some memories of sexual abuse are forgotten.

A ‘pseudo memory’ is something different, Professor Mullen said. He gave the example of a person who remembers being at a wedding. It may be that the person is persuaded by someone else that Aunt X was there when she was not in fact there. According to Professor Mullen, such a ‘pseudo memory’ is not uncommon but it usually concerns only peripheral events.

Having reviewed the evidence in the trial regarding PL’s psychiatric history, and the various counselling and treatment processes she undertook, Professor Mullen’s opinion was as follows:

There’s absolutely nothing there in my opinion which would support the notion of a false memory syndrome or any kind of creation of memories done over. There are a number of things in the evidence which you [the jury] will have to think about where there are inconsistencies, where there are changes. Whether those changes, in the jury’s opinion, are absolutely fundamental and central or whether they’re the kind of changes that one expects given repeated questioning, repeated giving accounts and all the other things I’ve talked about, … that’s for you to decide. Yes, her memories have changed — no question. There are inconsistencies.

As mentioned earlier, one of the themes pursued by the defence concerned the book entitled ‘The Courage to Heal’, which evidently propounds or supports the ‘recovered memory’ approach. In cross-examination of Professor Mullen, defence counsel asked him to comment on the book in the following context. Counsel referred to the 1998 confrontation and, in particular, to PL’s admitted expectation that confrontation would be therapeutic for her and to her stated desire to protect her children. Counsel asked Professor Mullen:

Now, in the context of this being made in 1998, is there any significance in that confluence of events that might lead you to think that she’d been exposed to false memory literature in general, and ‘The Courage to Heal’ in particular?

Unsurprisingly, he was unable to answer the question. He suggested that it would be necessary to ask PL whether she had read that book. (She had already given evidence that she had not read it).

Defence counsel then showed Professor Mullen a copy of the book, and referred him to the chapter entitled ‘Disclosures and Confrontations’. He then sought to ask the expert to comment on the facts of the present case. Both the prosecutor and the judge pointed out that this was not a matter of expertise. Her Honour noted that it was a matter for the jury. Defence counsel did not persist. Professor Mullen agreed that it was ‘of course’ unusual to confront people, and to do so in company. He was then asked whether he thought it was significant that ‘this has taken place in 1998’. He answered in the negative.

Subsequently, Professor Mullen again elucidated the concept of recovered memory, in these terms:

What we find when we interview adult men and women who’ve been victims of child abuse and you ask them, ‘Did you ever not know that you’d been abused?’ Some people will say, ‘Well for many, many years, I never thought about it and then something happened and it brought it back’. Very few say, very few indeed, ‘I had no memory whatsoever until one day the memory arose’. So that by far the commonest thing is people say, ‘Yes I had a memory of it, yes, it was there but I didn’t look at it, I didn’t tell anyone about it, I lived with it until something happened which led me to think about it and focus upon it’. That’s the common account you get. Now this is not what has been described … in recovered memories. These are people who when asked say they have no memory and never had a memory and then they get those memories, in the context of therapy usually or occasionally in other contexts.

At the invitation of defence counsel, Professor Mullen explained what he meant by ‘the memory wars’, as follows:

It really was between two groups of people. A group of therapists who believed that they could recover memories of child sexual abuse from the patient[’]s unconscious even though the patient had specifically said that they had no memory of ever being … sexually abused by anyone. And they postulated that certain kinds of trauma, particularly child sexual abuse, was of a — of a special type and that instead of remembering trauma you repressed it. You pushed it into your unconscious. On the other side of the memory wars were people who said there is absolutely no … convincing evidence that anything is repressed in this way and that all the real evidence points to the fact that if you do suffer a trauma irrespective of whether it’s child sexual abuse or another kind of trauma, you are much, much more likely to remember it than other events in your life. In other words, that far from being something that you’re likely to forget as a result of supressing it into the unconscious, if you have been a victim of something like child sexual abuse you are much more likely to recall it than you are to recall most things.

Professor Mullen agreed with defence counsel that, for much of the 1990s, there was ‘a terrible fashion’ for recovered memory. He rejected, however, the suggestion that this kind of therapy could ‘happen inadvertently’. He responded:

It is absolutely deliberate in the sense that the therapist has a belief that the person has been sexually abused and is in the business of trying to recover that repressed memory. It is inadvertent in the sense that the therapist believes what they’re uncovering are real memories, whereas they may not be real memories at all. So it’s not accidental. [Their] therapist is deliberately trying to pull out of what they believe is the unconscious, these repressed, traumatic memories.

Defence counsel then moved on to a question about ‘age regression’. Professor Mullen explained that some therapists believed they could

get people to go back and relive childhood experiences which they have no memory for whatsoever. … [T]hat is all part of the processes which people use to try and recover traumatic memories which they believe are repressed into the unconscious.

His own view, however, was that:
[T]raumatic events far from being more likely to be forgotten and pushed into the unconscious are more likely to be remembered than other events.

Defence counsel then asked about ‘body memories’. Professor Mullen said that there was no basis in science for a belief in body memory. Professor Mullen said that you might have a ‘body memory’ of how to ride a bike and keep your balance, but there was no evidence for a ‘body memory’ of sexual abuse.

Defence counsel then asked about ‘imagistic works, feelings work and art therapy’. Professor Mullen explained that art therapy was ‘a perfectly respectful part of occupational therapy for the mentally disordered’. The matter was not pursued further.

There was extensive cross-examination of Professor Mullen about a paper about recovered memory entitled ‘Recovered memories of childhood sexual abuse. Implications for clinical practice’.[19] According to Professor Mullen, the paper was dealing with the belief that traumatic events in childhood were likely to be repressed and pushed into the unconscious. In his view, it was ‘simply not true’ that this occurred. It would be relevant in the present case if there was a situation where

someone goes to a therapist and says, ‘No I have no memories whatsoever of being abused as a child’ [and] … is then subjected to a series of processes and the memory is recovered from their unconscious. Now, that is what this paper is about.

[19](1998) 172 British Journal of Psychiatry 296.

Professor Mullen continued:

Taking that out of context and bringing it up in this trial is only relevant if you [the jury] have come to the conclusion that in fact this describes what the [victim] and her sister said to you and if you come to the conclusion that these memories were absent and then recovered in therapy, all of this is of absolute central relevance. If you come to the conclusion that is not how these memories … , right or wrong, came about, then it is of no significance.

Counsel then referred to the fact that the medical records for PL only began at 2000, which was after ‘these memories occurred on interview’. Counsel asked Professor Mullen:

[H]ow can you exclude processes that might or might not have taken place in 1997/98 other than the word of [PL]?

Professor Mullen responded as follows:
This is what I call the sort of ‘The little green man’ question. Can I exclude [that] the little green man did not approach [PL] in 1995 and insert these memories? No, I can’t. I can’t exclude what there is no information about one way or [the other].

When the questioning turned to Mr Morando, the judge informed Professor Mullen as follows:

Mr Morando’s evidence here was that he did not take PL to counselling or to any doctors but there is the possibility that [defence counsel] has alluded to of mounting an argument on the basis of his answers in the record of interview that he did.

Defence counsel then asked:
If there were evidence that the jury could accept that Mr Morando took her to counselling … [w]ould that change your view about the existence or otherwise of false memory syndrome?

Professor Mullen replied:
Counselling covers a very wide range of activities. Most of them are helpful and benign. It contains a small number of activities which are potentially damaging and disruptive. Without knowing the nature of this counselling there is absolutely no way I or I think anyone else, could assist you.

Defence counsel then asked Professor Mullen whether he could ‘exclude, as it were, that particular little green man’? He said he could not.

In the course of the cross-examination, defence counsel recounted (over a number of pages of transcript) various aspects of evidence given by PL in cross-examination and in re-examination, including about having had nightmares. He then asked Professor Mullen:

[I]f [PL] was suffering from such nightmares, is it the situation that she would accept that those nightmares might have some degree of autobiographical significance to her?

It is not clear what kind of answer Professor Mullen could have given to a question posed in that way. It was, however, objected to by the prosecutor and was not persisted with.

Defence counsel then switched to ‘delusions of reference’, and then to ‘ideas of reference’, before asking this question:

If one accepts those parts of the evidence and bearing in mind this is contested, that [PL] was on 15 bongs of marijuana a day and at some point in time had been prescribed Zyprexa by persons other than Dr Gupta … In those circumstances might someone have a different view of comments such as, ‘You’ve got beautiful daughters’ when she’s having dreams about good people that she knows doing horrible things to her?

(This was a reference to PL’s evidence that the applicant had made such a statement about her daughters, and that this had prompted her to go to police to report what had happened to her.)

Professor Mullen responded as follows:

[W]ell the question really amounts to, [‘]would it be reasonable to respond in the way that she records to this man?[’] Now I think really this is very much a question for the jury because if they discount [PL’s] account of what happened to her as a child, then this response becomes irrational. If you don’t discount it surely it becomes exactly what you would expect a mother to do and exactly how a mother would be expected to respond. So there is no way of answering this question. Only the jury can answer it because how you answer it depends, in the end, whether you accept the account of [PL] and her sister or whether you don’t.

Professor Mullen then acknowledged that:

If you [the jury] come to the conclusion that she had no memories whatsoever for this abuse prior to 1998 then you would … have to be very sceptical about how thoughts or memories of child sexual abuse which had not been entertained previously would just suddenly emerge.

When asked about a statement attributed to PL — that she believed she had been sexually assaulted by many men — Professor Mullen said:

If you [the jury] conclude that, in fact, she … believes that she was assaulted by a large number of men this makes it obviously much more questionable but you have all the evidence before you and you have a note before you. It’s not up to me to tell you how you should weight those different things.

The judge intervened to point out that, according to PL herself, she had said no such thing. Rather, she had been talking about her dreams.

Defence counsel then asked Professor Mullen about PL’s evidence of having had a suspicion that her father was a paedophile but having had no memory of it. It was put that these ‘suspicions without memories’ were consistent with recovered memory. Professor Mullen disagreed:

Strictly, they’re totally inconsistent with recovering memory because she says she thought he might be a paedophile but she has no memories of it. It only becomes part of recovered memories if she recovers those memories but she didn’t as far as I know so in fact what you have is a perfect example of what a recovered memory is not, ie ‘I suspect but I don’t remember’.

When defence counsel asked Professor Mullen as to whether this aspect of PL’s evidence gave him ‘any cause for concern’, Professor Mullen responded as follows:

The jury does have expertise on thought processes as much as I do and the real question is would you think it extraordinary, assuming someone — anyone has been sexually abused — not talking about [PL] and her sister — anyone who’s been sexually abused, when they start to think about this abuse might begin to wonder whether they’ve been victims of other forms of abuse. Now that is something you know, you must decide, whether this sounds something plausible to you or you think that it is so extra ordinary that it casts doubt on the original statements.

Later, Professor Mullen was asked to comment on PL’s evidence, where she sought to explain the change she made at the 2007 committal in her account of her sister’s actions in Incident 2 (‘hide and seek’). Her police statement said that CS did not touch the accused’s penis. At the committal, she changed that to an assertion that her sister did touch his penis. Professor Mullen’s comment on PL’s explanation of the change was in these terms:

[T]here is absolutely no doubt that when people are asked to recall and are questioned about memories repeatedly, that those memories will be changed. If you remember, I said that every time you recall a memory, discuss it, the memory that you re-encode, that you as it were store, is not the memory exactly that you brought out. This is a profound problem when it comes to any criminal case, because people have been questioned again and again. In almost all kinds of therapy which discuss memories of child sexual abuse, the same thing will happen and although you’ve heard that a number of the therapists who saw [PL] specifically avoided talking about her memories of child sexual abuse. Some of them spent a great deal of time talking with her about the memories of child sexual abuse. During that process, the memories that she has, will be changed. No question I said that in my evidence.
What is difficult is to know which parts one can rely on and which parts not, which is your decision. There is absolutely no doubt that there are inconsistencies in her evidence, things are added, elaborations, more detail. Is this being cued? Is this the process of reason or is it encouragement[,] unintentional … [though] it be, from the various people who’ve questioned her? That’s a question for you. There’s no doubt that [PL’s] memory is — of what occurred, changed, from her first statement to her second statement, to the evidence she has given and when she’s been brought to court on — I don’t know, is it three occasions, I don’t know, whatever it is. You saw her on those days when she was here, I wasn’t here. So, her memory is changing.
… No question about that. Now, [defence counsel] said, ‘Well is this normal part of memory?’ Yes, it is. She talks of visions. Well, again, this is something for you. Is she talking about visions, seeing things that are not there, out there in the world, or is she talking about visual memories? Now, [we] all know we have memories of what happened, which is largely a sort of account, a narrative, and we can sometimes conjure up quite vivid memories which are picture-like. It’s for you to decide whether she was calling up these pictures or whether she was … talking about seeing things out in the world which were not there.

Professor Mullen was then asked about the nine-year period between the original 1998 statement and the 2007 committal, and whether ‘over that nine-year period, one would tend to forget rather than remember additional material’. Professor Mullen’s response was as follows:

No, that’s certainly not the case. There’s clear evidence that when people do give accounts and start to remember child sexual abuse, not for the first time, but start to really think about it, they’ve always known they were abused and for some reason they start to think about it. It tends to come out in a sort of stuttering way. A little bit more information, a little more, a little bit more. Now, is this the process of elaboration? Is it the process of cueing? Is it the process of using reason to improve those memories? Whatever the cause of it is, that is the normal way in which memories of child sexual abuse emerge, and the more you focus on memories, the more you seem to recall. [The] [d]ifficulty is, and this is again for you, you start off in one position, you finish up in another. Should you only rely on the initial situation? Well, that’s certainly the most conservative … and perhaps in some ways the most reliable. The difficulty, of course, is that people are expected to remember more. To be fair to someone who’s accused of a very serious crime, it is important that they know not just that they did something sexual, for example, but to some extent what they’ve said to have done, some details about it, at least approximately when it occurred, where it occurred et cetera … I mean they have to have because otherwise they can’t defend themselves. So there are pressures on people to come up with answers to those questions which they try and do by thinking about it, by trying to cue their memories, and memories will change as a result and so it is never easy, never easy in any case, but in particular the sort of case that you have to come to a decision on, to decide what was added, what was elaborated and what was remembered from the process of thinking about it, hearing it, looking at photographs, that sort of thing.

Defence counsel then asked Professor Mullen about PL’s evidence, about having spent her whole life ‘trying not to remember it’ and then subsequently having ‘allowed herself to remember’. Defence counsel asked whether this was ‘an ordinary process of memory’. Professor Mullen responded as follows:

In our research, we’ve interviewed literally hundreds of wom[en], many of whom recall child sexual abuse. A significant proportion of them give exactly that kind of account. They’ve always known that these things have happened. They’ve attempted not to remember them, to put them to one side. When they mean, ‘I didn’t remember it’, what they are usually saying if you question them is that, you know, for years they’ve just pushed it out of mind. So that kind of account is very much the sort of account we’ve heard from many women who are … simply talking about their sexual abuse when they’ve been approached by researchers and talking about it with no motivation other than to assist in the research.

Professor Mullen was then asked again about the 1998 paper published in the British Journal of Psychiatry. He agreed that recovered memories did become ‘increasingly elaborate and bizarre’. He said:

[I]t’s one of the ways, I think, that one can distinguish between the recovered memory syndrome and the memories that you usually obtain from people who have been sexually abused in that you have certain characteristics, including that they are bizarre. Now, what is bizarre, well, in this case, I have to leave that to you because …

Professor Mullen pointed out that the authors of the article were appealing to common experience, which he said was a matter for the jury:

You must ask yourselves, if you think about something and try and remember it, does the whole lot come to you as [the authors] are suggesting here, complete? Or is it that the more you try and remember the more you think about it, if you come back to it the next day, that little bits more come? Common experience is being appealed to, you have to decide what common experience is.

He was then asked about the reference in the article to dream interpretation. He agreed with the comment in the article that

[t]here is no evidence that dreams are a Royal road to historical accuracy and interpretations usually reflect the training and personal convictions of the therapist.

The prosecutor objected that there had been no suggestion in the evidence that dream interpretation had taken place in relation to PL. The objection was well-founded. In response, defence counsel could point only to evidence given by PL about having had nightmares, and about a GP telling her on one occasion in the 1990s that ‘it’s probably your memory coming back.’ When the doctor in question was called to give evidence, he said that he would almost certainly not have said any such thing. It was pointed out, moreover, that PL had seen a number of different doctors from the same practice during the relevant period.

One of the presuppositions of trial by jury is, in my opinion, that all jurors have a responsibility to participate in a collective consideration and discussion of issues in the jury room.[128] It is the duty of all jurors to listen to each other’s views and weigh them objectively. Of course, it must be open to an individual juror to change his or her mind if honestly persuaded that his or her preliminary view is not
[128]Black v The Queen (1993) 179 CLR 44, 51 (Mason CJ, Brennan, Dawson and McHugh JJ).
[129]Ibid.
well-founded.[129] But that can only properly occur if each juror keeps an open mind throughout, listens to and assesses the views of fellow jurors and tests his or her opinions through discussion with the others.

In Cheatle[130] — when discussing the manner in which the requirement of unanimity of verdict affects the deliberative process at a fundamental level — the High Court observed that:[131]

there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict. A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions. The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed. Thereby, it reduces the danger of ‘hasty and unjust verdicts’. In contrast, and though a minimum time might be required to have elapsed before a majority verdict may be returned, such a verdict dispenses with consensus and involves the overriding of the views of the dissenting minority.

[130]Cheatle v The Queen (1993) 177 CLR 541.

[131]Ibid 552–3 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (footnotes omitted).

It seems clear from these observations that one of the expectations of a common law trial by jury is that all members of the jury will take part in deliberation, and that the opinions of all jurors will be heard and discussed.

In Thompson,[132] the Court of Appeal of England and Wales (Lord Judge CJ, and Hughes LJ and Bean J) had before it six appeals, heard together, dealing with different kinds of ‘alleged jury irregularity’. Giving the judgment of the Court, Lord Judge CJ emphasised the ‘collective responsibility’ of a criminal jury:[133]

The verdict of the jury, whatever it is, is delivered in open court in their presence. It is the verdict of them all (or where appropriate, the statutory majority). They have collective responsibility for the verdict. What has perhaps not been sufficiently emphasised thus far is that the collective responsibility of the jury is not confined to the verdict. It begins as soon as the members of the jury have been sworn. From that moment onwards, there is a collective responsibility for ensuring that the conduct of each member is consistent with the jury oath and that the directions of the trial judge about the discharge of their responsibilities are followed. Where it appears that a member of the jury may be misconducting himself or herself, this must immediately be drawn to the attention of the trial judge by another, or the other members of the jury. So if, for example, an individual juror were to be heard saying that he proposed to decide the case in a particular way regardless of his oath to try it on the evidence, or he were demonstrating a bias based on racism or some other improper prejudice, whether against a witness or the defendant, these things must be reported to the trial judge. So must outside interference, such as imparting information or views apparently gathered from family or friends, or using a mobile telephone during deliberations, or conducting research on the Internet. The collective responsibility of the jury for its own conduct must be regarded as an integral part of the trial itself.

[132]R v Thompson [2011] 1 WLR 200; [2011] 2 All ER 83; [2010] 2 Cr App Rep 27.

[133]Ibid [6] (WLR 203–4).

In the course of oral argument, the idea was floated that it might be acceptable for a juror to quickly make up his or her mind, and then refuse to participate further in discussions. Such a notion cannot be countenanced. In my view it is anathema to accepted norms of trial by jury.

Turning to the legislative framework, so far as is relevant s 46 of the Juries Act 2000 provides:[134]
[134]Emphasis added.

46 Failure to reach unanimous verdict in criminal trials
…
(2)If, after deliberating for at least 6 hours a jury in a criminal trial –

(a) is unable to agree on its verdict; or
(b) has not reached a unanimous verdict –
the court may discharge the jury or, subject to subsections (3) and (4),[135] take a majority verdict[136] as the verdict of the jury.
(3) A court must refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial.
…

[135]Subsection (4) requires unanimous verdicts for murder or treason, offences against s 71 or s 72 of the Drugs, Poisons and Controlled Substances Act 1981 and offences against a law of the Commonwealth.

[136]In the context of the present trial, on the assumption that the jury had deliberated for six hours, a majority verdict was a verdict on which eleven agreed: s 46(1)(a).

The plain effect of subs 46(2) and (3) is that a majority verdict can only be taken ‘as the verdict of the jury’ if, after deliberating for six hours, the jury is unable to agree on a verdict or has not reached a unanimous verdict. Moreover, the trial judge must refuse to take a majority verdict if, having regard to the nature and complexity of the trial, the court has not had a period of time for deliberation that the court thinks reasonable. Neither ‘deliberating’ nor ‘deliberation’ as used in s 46 are defined in the Act,[137] so that they must be given their ordinary, natural and grammatical meaning. In my opinion, a clear distinction is drawn between the process of ‘deliberating’ referred to in s 46(2), and the ‘period of time for deliberation’ referred to in s 46(3). Thus, a jury may have been ‘deliberating’ for more than six hours, yet, having regard to the nature and complexity of the trial, the judge may not be satisfied that the ‘period of time for deliberation’ has been sufficient for a majority verdict to be taken.
[137]Although it should be noted that, for the purposes of s 78 – which creates an offences concerned with disclosure of jury deliberations – the term deliberations is defined in s 78(12) as including ‘any discussions between two or more jurors at any time during a trial of matters relevant to that trial’.

Section 46 gives the trial judge a discretion either to discharge the jury, or take a majority verdict, so long as the jury has deliberated for at least six hours, and the jury is unable to agree on its verdict or has not reached a unanimous verdict. Beyond the necessity for the jury to have deliberated for six hours and to have been unable to agree or reach a unanimous verdict, sub-s (2) sets no preconditions for the exercise of the discretion (although sub-s (3) requires the judge not to take a majority verdict — even if six hours’ deliberation time has passed — if, due to the nature and complexity of the trial, the jury has not had a reasonable period of time for deliberation). Nothing in s 46(2) dictates that a judge must take a majority verdict. That the court retains a discretion whether or not to take a majority verdict appears from the word ‘may’ in s 46(2),[138] and the presumption that the legislature would intend to modify a fundamental common law right to the least degree reasonably consistent with the language of the statute.[139]
[138]Interpretation of Legislation Act 1984, s 45.
[139]R v Muto and Eastey [1996] 1 VR 336 (‘Muto’), 339.

In this case, if the jury had not been ‘deliberating’ for at least six hours, there was no occasion for the judge to accept a majority verdict. The question must thus be asked, what does deliberating entail?

Young[140] was a case where jurors in a trial for murder, having retired to consider their verdicts, were accommodated in a hotel overnight. Four members of the jury, whilst at the hotel, conducted a session with a Ouija board, where questions were asked of the deceased, and answers purportedly received, which were highly prejudicial to the appellant. Section 8(1) of the Contempt of Court Act 1981 (UK) made it a contempt to obtain, disclose or solicit ‘any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings’. The question for the court was whether the embargo in s 8(1) applied to what may have happened in an hotel during retirement. Reaching the conclusion that what occurred at the hotel was not in the course of ‘deliberations’, the Court of Appeal (Lord Taylor of Gosforth CJ, Waterhouse and Bell JJ) observed:[141]

Oxford English Dictionary definitions of ‘deliberation’ include ‘consideration with a view to a decision’, ‘weighing … in the mind’, ‘careful consideration’, ‘discussion of … reasons for and against’, ‘debate’. In our view, the whole object of sending a jury to a hotel is to give them a break, rest or respite from their deliberations. It would be absurd to suggest that when every juror is in a separate bedroom, whatever their thoughts, the jury could collectively be described as being ‘in the course of their deliberations’. …

[140]R v Young [1995] QB 324.

[141]Ibid 331.

A question of what periods were included in ‘at least 6 hours deliberation’ for the purposes of s 47(2) of the Juries Act 1967 arose on Rodriguez.[142] The Court of Appeal held that what must be excluded ‘are discrete and substantial breaks from the performance of the jury’s task’, common examples being retirement overnight and adjournment for lunch, but which might also include, for example, evacuation of a building during a bomb threat.[143] Rodriguez was a very different case from the present, however, since the Court was required to consider whether ‘deliberation’ time included a luncheon period where food was provided to jurors who remained together in the jury room.
[142]R v Rodriguez [1998] 2 VR 167.
[143]Ibid 169 (Hayne JA); 177 (Charles JA); 186 (Callaway JA).

Another case which was concerned to identify those periods when a jury could not be said to have deliberated was BR.[144] In that case, the Court of Criminal Appeal (NSW) had cause to consider s 55F(2) of the Jury Act 1977 (NSW), which provides:[145]

A majority verdict may be returned by a jury in criminal proceedings if:
(a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and
(b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation.

[144]BR v R [2014] NSWCCA 46.

[145]Emphasis added.

Emmett JA reflected that one of the principal difficulties in construing s 55F(2) is the absence of a definition of ‘deliberation’,[146] and said:[147]

The application of the term ‘deliberation’ to the facts of individual cases may be usefully guided by two considerations. The first is whether the jury is sequestered in the same location (such as the jury room). The second is whether the jury is able to conduct discussions about the case at hand.
Thus, discrete and substantial breaks from the performance of the jury’s task, such as retirement overnight and adjournment for lunch, where lunch is not taken in the jury room, should be excluded from the eight hour period mentioned in s 55F. …

[146]BR v R [2014] NSWCCA 46, [19].

[147]Ibid [20]–[21].

Agreeing with Emmett JA, Hulme AJ observed of s 55F(2):[148]

This provision was enacted in 2006 against the well-known long-standing rule that a court will not enquire into a jury’s deliberations and what occurs in the jury room. (There is an exception to that last statement — see Smith v Western Australia [2014] HCA 3; (2014) 88 ALJR 384 — but the exception is of no present relevance.)
In these circumstances ‘the jurors have deliberated’ must be given a practical common-sense operation. It was never intended that the Court should be concerned with whether the jurors have, minute by minute, been discussing the case rather than e.g. talking about the latest cricket scores or anything else of topical interest.
On the other hand, if the Court knows that at certain times a jury has not been deliberating, that time must be excluded from the eight hours referred to in s 55F(2)(a) of the Jury Act 1977. …

[148]Ibid [39–[41].

As was the case with Rodriguez, BR was principally concerned to identify those occasions when a jury could not be said to have ‘deliberated’ so as to determine whether the minimum statutory period permitting a majority verdict to be taken had expired. Neither case purported to postulate the essential prerequisites of ‘deliberation’.

The respondent placed some reliance on this Court’s decision in VST[149] to contend that ‘deliberating’ in s 46(2) of the Juries Act 2000 means ‘period of time for deliberation’, and that the jury in this case had therefore been ‘deliberating’ for the requisite period before a majority verdict was authorised. I do not accept that submission. In VST, the jury had retired to consider its verdict at 10:26am. At 4:20pm or thereabouts, the judge was contemplating what course to follow. The jury were brought into court at 4:24pm (just short of six hours after retiring), and were told by the judge that they would be sent home until the morning. At that point the foreman informed the judge the jury voting was 11 to 1, and that it was unlikely that situation would change with more time. The judge told the jury that the time had not yet come when he could take a majority verdict because the lunch period had to be excluded. He then asked the foreman directly whether the jury had deliberated through lunch, and was told that the jury had deliberated through the lunch period except for a period of 15 minutes. The jury were then sent out again at 4:29pm, and remained in the jury room until 4:51pm, at which time a majority guilty verdict was taken. Counsel for the applicant contended — unsuccessfully — that the jury had not been deliberating for six hours when the verdict was taken, and that sending the jury back into the jury room at 4:29pm so as to let time run was a ‘charade’. Phillips JA (with whom Winneke P and Buchanan JA agreed) set out the provisions of ss 46(2) and (3) of the Juries Act 2000 and said:

Subsection (2) refers to the jury’s ‘deliberating for at least 6 hours’ and so the calculation of time spent by the jury ‘deliberating’ is critical to the taking of a majority verdict. (There can be no substantial compliance with such a requirement, as I apprehend what was said by Dawson J in Hunter Resources Ltd v Melville;[150] the jury either has or has not ‘deliberated’ for at least six hours.) What, then, is the meaning of the word ‘deliberating’ as used in s 46(2)? It cannot mean actually deliberating because that would need inquiry into what happened in the jury room; it surely refers therefore to the time allowed for deliberating, which requires no such intrusive inquiry — and so much seems to me to be borne out very clearly by subs (3); for once time has expired under subs (2), subs (3) poses the question for the judge whether the jury has or has not had a reasonable ‘period of time for deliberation’. That change in expression confirms to me what otherwise appears to be the meaning of ‘deliberating’ in subs (2).

[149]R vVST (2003) 6 VR 569.

[150](1988) 164 CLR 234, 249.

With respect, I cannot accept that ‘deliberating’ as used in s 46(2) equates to ‘the time allowed for deliberating’. As I have said, in my view a distinction is drawn in sub-ss 46(2) and (3) between the expressions ‘deliberating’ and ‘period of time for deliberation’. Contrary to the view put forward in VST, a jury is deliberating when involved in the process leading to decision — discussion, debate, consideration of issues, and the like. It does not refer to the time allowed for the process leading to decision. Phillips JA held that ‘deliberating’ cannot mean ‘actually deliberating’ since to so construe the expression would require an ‘intrusive inquiry’ into what happened in the jury room; hence it must refer to the ‘time allowed for deliberating’, which requires no such inquiry. In my view, giving the word ‘deliberating’ its ordinary meaning requires no intrusive inquiry into what occurred in the jury room. Rather, it must be presumed that in the ordinary course, when a jury has been sent out to consider verdict, they are (apart from break periods such as lunch, or other periods of break, rest or respite) involved in deliberating on that verdict. Such a presumption accords with the oath or affirmation that each juror takes or makes to ‘faithfully and impartially try the issues’ between the Crown and the accused ‘and give a true verdict according to the evidence’.[151] At the risk of again repeating myself, the mere fact that a period of six hours has expired during which the jury have been deliberating does not carry with it the inevitable concomitant that the jury has, having regard to the nature and complexity of the trial, had ‘a period of time for deliberation that the court thinks reasonable’. (Indeed, in this case, it will be remembered that the prosecution counsel submitted that it would be ‘premature’ to take a majority verdict a majority given that the jury had ‘been out only seven and a half hours’, and ‘given the length of the trial and the amount of evidence that’s being considered’.)
[151]Juries Act 2000, s 42; sch 3.

It is impossible to ignore the tone and content of the jury’s note. There appeared ‘to be recalcitrance on the part of one juror to participate in the process in any way’, the juror being ‘unable to deliberate and discuss any verdict’. Thus it cannot be said, in my view, that up to the point that the note was delivered, that the jury had been ‘deliberating’ in the manner expected at common law.

The available material suggests that there had been an hour’s retirement before separation on the Friday. The jury had been out for about seven and a half hours when their note was delivered shortly after 1:00pm on Tuesday. (At the risk of repetition, the note claimed that up to that point a juror had refused to deliberate or discuss the case since Monday morning.) In her directions at 2:26pm, the judge said that she would receive majority verdicts. The material does not specifically disclose how long the jury remained together on the Tuesday before separation (although it had been anticipated that they would commence at 10:15am, and they were sent away at 4:46pm). And, although the verdicts were returned at 12:12pm on the Wednesday, the material does not specifically disclose how long the jury had been together that day before their verdicts were delivered (although again it had been anticipated that they would commence at 10:15am). The essential point remains, however, that at the time the judge resolved that she would take majority verdicts, she had no power to do so, since the jury had not been deliberating for six hours.

Quite apart from whether s 46 of the Juries Act 2000 permitted the judge to take a majority verdict, however, it is impossible to escape the conclusion that what had occurred in the jury room was fundamentally irregular. A juror had refused to participate in discussion or deliberation, through what fellow jurors regarded as ‘recalcitrance’.

Defence counsel was wrong to submit that a majority verdict ought be taken, a submission that the trial judge adopted with alacrity. Indeed, in my view, having been alerted by the note to the fact that the deliberative process was afflicted by irregularity, more should have been done by all concerned to ensure that justice did not miscarry.

In Orgles,[152] the appellants had been convicted of threatening to damage property. During their trial, two jurors complained individually to court staff about friction amongst the jury as a whole which was affecting their concentration. Each of the complaining jurors was independently brought into court and questioned by the recorder in the absence of the other jurors. Both expressed a willingness and capacity to carry on. The recorder then brought the whole jury into court and addressed them concerning ‘dissension and ill-feeling’ arising out of the case. He asked the jury to retire to consider whether they could ‘conscientiously continue attending to their duties’ and ‘bring in a true verdict’. Ultimately the foreman intimated an ability to continue and the trial proceeded.
[152]R v Orgles [1994] 1 WLR 108.

The Court of Appeal (Nolan LJ, Wright and Holland JJ) thought the procedure followed by the recorder to be wrong. Holland J, giving the judgment of the Court, set out ‘an appropriate approach’:[153]
[153]Ibid 112–3.

(a) Each member of a properly constituted jury has taken an individual oath to reach a true verdict according to the evidence; or have made an affirmation to the like effect.
(b) Circumstances may subsequently arise that raise an inference that one or more members of a jury may not be able to fulfil that oath or affirmation.
(c) Normally such circumstances are external to the jury as a body. …
(d) Occasionally, as in the instant case, the circumstances giving rise to the jury problem are internal to such as a body. Whereas the duty common to all its members normally binds the 12 strangers to act as a body, such cannot always occur. From time to time there may be one or more jury members who cannot fulfil the duty, whether through individual characteristics or through inter action with fellow jury members.
(e) However the circumstances arise, it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors … or a whole jury (see Hambery (1967) 65 Cr App R 233).
(f) The question arises as to whether and in what circumstances that duty should be exercised by the trial judge in the absence of the jury as a body. As to this, first, there is no doubt but that the judge’s discretion enables him to take the course best suited to the circumstances (see Richardson (1979) 69 Cr App R 235, [1979] 1 WLR 1316 for an extreme course) and frequently it is appropriate to commence and continue the inquiry with the juror concerned separated from the body of the jury. Such a course cannot readily be faulted if the circumstance giving rise to the inquiry is external to the jury as a body; indeed if the problem is an approach to a juror, alternatively some external influencing of a juror, only such a course is feasible. The ‘infection’, actual or potential, of one juror must be prevented if possible from spreading to the rest of the jury, and it is common form to have the individual juror brought into open court with the rest of the jury absent so that the trial judge may make an inquiry in the presence of the accused and counsel without jeopardising the continued participation of the rest of the jury.
(g) However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest — or, as here, two members — but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge’s exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number.
(h) That which the recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to friction within the jury — what should follow? It could not be right to discharge one or both and leave the rest of the jury to continue —arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view the inquiry could only be with the jury as a whole.

The note in this case revealed that one juror was not capable of fulfilling the common duty that ‘normally binds the 12 strangers to act as a body’. It was the duty of the trial judge to inquire into and deal with the situation so as to ensure that there was a fair trial. In this case, since it would not have been proper to discharge the individual juror, in my opinion the whole jury should have been discharged.

In Roberts,[154] the trial judge, on a trial of a charge of dangerous operation of a motor vehicle, discharged a single juror under s 56(1) of the Jury Act 1995 (Qld). The Queensland Court of Appeal found that justice had as a result miscarried. During deliberations, a single juror sent the judge a note in the following terms:

We have 11 agree and one won’t even discuss with us, he is aggressive and we are concerned with our safety. We are extremely distressed, anxious and very much in need of help from judge.

The trial judge, having canvassed the alternatives with counsel, had the author of the note brought into court. Upon questioning, the juror indicated that other jurors were ‘very distressed’, it was ‘quite uncomfortable’, and the juror whose conduct was impugned ‘disagrees’, and was ‘forceful’, ‘aggravated’ and ‘yelling’. Counsel for the accused asked for the jury to be discharged, but the trial judge separately brought two other jurors into court. When questioned, one of the further two jurors told the judge that the criticised juror had ‘formed a view of the evidence contrary to the remaining 11 who are agreed’. That juror would not discuss the evidence, and was ‘aggressive and overbearing and argumentative’. The third juror questioned did not disagree that the criticised juror ‘refuses to discuss the evidence or his views with the rest of the jury’, and has ‘become very aggressive’ such that it caused ‘distress’. In the result, the dissenting juror — rather than the whole jury — was discharged.

[154]R v Roberts [2005] 1 Qd R 408.

It needs be borne in mind that at the time Roberts was decided, majority verdicts were not permitted in Queensland, so that, as White J put it,[155] ‘To discharge only the dissentient, particularly when it was known that the other 11 held an opposing view about the verdict, would suggest a majority verdict was being permitted’. Cullinane J (with whom McPherson JA and White J agreed) provided a reason why discharging the dissenting juror was not appropriate:[156]

To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict, something which the law of this State does not permit.
The public perception includes as well as the general perception of the public that of the accused and the jurors concerned.

[155]Ibid 409 [6].

[156]Ibid 416–7 [46]–[47].

In my opinion, for the judge to have discharged the juror in this case who was refusing to discuss or deliberate, would have been to give the perception that an ‘obstacle to a verdict’ had been removed. I do not ignore the amplitude of s 43 of the Juries Act 2000, which permits discharge of a single juror if ‘(a) it appears to the judge that the juror is not impartial’; ‘(b) the juror becomes incapable of continuing to act as a juror’; ‘(c) the juror becomes ill’; or ‘(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror’. It would be a big step, however, to remove a dissenting juror on the basis that it appeared to the judge that the juror should not continue to act, since such adopting such a course would create the perception that an ‘obstacle’ to a verdict had been ‘removed’.

The Court need not be concerned in this case with the ‘general rule of the administration of criminal justice under the common law that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict’,[157] since the note with which this case is concerned was put before the trial judge prior to any verdict being returned, in circumstances where s 78(3) of the Juries Act 2000 specifically permitted a juror disclosing to a judge ‘information about the deliberations of a jury’.
[157]Smith v Western Australia (2014) 305 ALR 338; (2014) 88 ALJR 384; (ALR) 339 [1] (French CJ, Crennan, Keane, Gageler and Keane JJ). See also R v Mirza [2004] 1 AC 1118; R v Smith [2005] 1 WLR 704.

As I have said, one of the presuppositions of a criminal trial at common law is that all jurors will participate in deliberation. One juror in this case did not. There was thus a fundamental irregularity in the trial. Since the irregularity impinged upon the jury’s decision-making process, the irregularity went to the root of the trial. The judge had no power to accept a majority verdict at the time that she informed the jury that she would. It cannot be contended that, in these circumstances, there has not been a substantial miscarriage of justice.

Ground 13 must be upheld.

Conclusion

For the foregoing reasons the convictions cannot be permitted to stand.

I have given anxious consideration to the question whether a retrial should be ordered or acquittals entered.[158] Despite the unhappy history of this case, I am of the view that justice is best served be an order for a retrial. No doubt the Director of Public Prosecutions will consider the unfortunate history of this case in determining whether to act on the order for a retrial or discontinue the proceedings.
[158]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Dyers v The Queen (2002) 210 CLR 285; R v Anderson (1991) 53 A Crim R 421; R v Wilson [1995] 1 VR 163; R v Clune (No 2) [1996] 1 VR 1; R v Bartlett [1996] 2 VR 687; R v Thomas (No 3) (2006) 14 VR 512; R v Wei Tang [2007] VSCA 144; Rabey v The Queen [1980] WAR 84. See also Corns, The Discretion of the Court of Appeal to Order a New Trial or Verdict of Acquittal, (2006) 30 Crim LJ 343, where a useful summary of the guiding principles may be found.

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[2014] VSCA 194

2 September 2014