Peter Daniels (a pseudonym)[1] v The Queen
[2017] VSCA 159
•19 May 2017 (Orders); 23 June 2017 (Reasons)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0052
| PETER DANIELS (A PSEUDONYM)[1] | Appellant |
| V | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | REDLICH and PRIEST JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 May 2017 |
| DATE OF JUDGMENT: | 19 May 2017 (Orders); 23 June 2017 (Reasons) |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 159 |
| JUDGMENT APPEALED FROM: | DPP v [Daniels] (Unreported, County Court of Victoria, Judge Mullaly, 16 October 2015) |
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CRIMINAL LAW – Application for leave to appeal – Conviction – Incest – Whether verdict unsafe and unsatisfactory – Numerous infirmities in complainant’s evidence and that of key witness – Allegations of uncharged acts highly implausible – Complaint unreliable due to circumstances in which made – Appellant of good character and credible witness – Reasonable jury must have held a reasonable doubt – Whether admission of ‘context’ evidence was erroneous – Evidence Act 2008 s 137 – Probative value did not outweigh risk of unfair prejudice – Leave granted – Appeal allowed – Judgment of acquittal entered.
CRIIMINAL LAW – Appeal – Conviction – Jury empanelment – Juries Act 2000 s 39 – Whether fundamental irregularity to accused’s right of peremptory challenge – ‘Stand and face the dock’ procedure – Theodoropoulos v The Queen [2015] VSCA 364; Cook v The Queen [2016] VSCA 231; Beqiri v The Queen [2017] VSCA 112 considered – Solicitor’s evidence of insufficient time to confer with accused – No reasonable opportunity to view prospective jurors – Fundamental irregularity in jury selection.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M G O’Connell SC and Mr G Casement | Stary Norton Halphen |
| For the Crown | Mr J Gullaci | Mr John Cain, Solicitor for Public Prosecutions |
REDLICH JA
PRIEST JA:
Orders made
On 19 May 2017, the Court heard an application for leave to appeal against the appellant’s conviction on one charge of incest. At the conclusion of oral argument, the Court made orders granting the application for leave, allowing the appeal and entering a judgment of acquittal. These are our reasons for making those orders.
Overview
On 16 October 2015, a jury in the County Court found the appellant guilty of incest[2] (charge 1), but acquitted him of a second charge of incest (charge 2) and two charges of committing an indecent act with a child under 16[3] (charges 3 and 4).[4]
[2]Crimes Act 1958, s 44(2).
[3]Crimes Act 1958, s 47(1).
[4]On 5 April 2017 the judge sentenced the appellant to be imprisoned for four years and nine months, and fixed a non-parole period of three years.
Although we will later discuss the evidence in greater detail, in brief overview the charge of incest upon which the appellant was convicted arose out of events on 4 July 2014 involving ‘OBL’, the appellant’s granddaughter. The appellant went to visit his two grandchildren, and to give his grandson, ‘OBP’, an Xbox console as a birthday present. OBL, aged 9 years, and OBP, aged 11, lived with their mother, ‘MOB’, who was separated from the appellant’s son, ‘AOB’. It seems that the appellant provided significant support to his daughter-in-law and his two grandchildren, and saw them regularly at his home or theirs.
Shortly after the appellant arrived, on 4 July 2014, OBP took the Xbox game to his mother’s bedroom to set it up. OBL and the appellant also went to the bedroom. The appellant and OBL were on the bed together, and OBP was at the foot of the bed on the floor. It was alleged that the appellant put his hand inside OBL’s underwear and digitally penetrated her vagina. OBP claimed that he looked up and saw something of this behaviour. He left the room and told his mother what he had seen. His mother confronted the appellant, who denied any misconduct. OBL also denied that anything improper had happened. In circumstances we will later discuss, however, on 6 July 2014 OBP made an allegation to his father, AOB, following which OBL came to accuse her grandfather of interfering with her sexually.
Grounds of appeal
Three grounds of appeal were pressed:[5]
1. The verdict of the jury was unreasonable and cannot be supported by the evidence, pursuant to s 274(1)(a) of the Criminal Procedure Act 2009.
2. The Learned Trial Judge erred in failing to exclude from evidence the finding of a zip lock bag containing gel pursuant to s 137 of the Evidence Act 2008.
4. The procedure adopted for the empanelment of the jury deprived the Applicant of a reasonable opportunity to exercise his right to peremptory challenge and thereby resulted in a substantial miscarriage of justice.
[5]A fourth ground of appeal, ground 3 — to the effect that the trial judge had erred in admitting evidence that the complainant stated to [AOB] on 4 July 2014 had occurred — was abandoned.
In our opinion, each ground should succeed.
Ground 1 — The verdict is unsafe and unsatisfactory
Summary of conclusions
Having conducted our own review and analysis of the evidence, we have a reasonable doubt about the appellant’s guilt.[6] Making due allowance for the jury’s advantage in seeing and hearing the witnesses, it is a reasonable doubt that the jury should have held.[7] In our view it simply was not open to the jury to convict the appellant. A properly instructed reasonable jury must have had a reasonable doubt about the appellant’s guilt.[8] The jury’s verdict is unsafe and unsatisfactory. An entry of a judgment of acquittal is thus the inevitable result.[9]
[6]SKA v The Queen (2011) 243 CLR 400; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66]; GAX v The Queen [2017] HCA 25, [13]; R v Klamo (2008) 18 VR 644, 653-4 [38]–[40]; Greensill v R (2012) 37 VR 257, 276–7 [81]–[83].
[7]M v The Queen (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ); GAX v The Queen [2017] HCA 25, [25].
[8]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
[9]Criminal Procedure Act 2009, s 277(1)(b).
The appellant’s submissions
In the appellant’s written case, ten reasons were advanced in support of the contention that the verdict was unsafe and unsatisfactory:
· first, the observations of MOB are inconsistent with OBL’s evidence;
· secondly, OBL repeatedly asserted that the offending did not occur;
· thirdly, OBP recanted or apologised for making up the initial allegation;
· fourthly, OBP’s evidence is inconsistent with that of his sister;
· fifthly, given his dubious reliability and credibility, it would be unsafe to rely on OBP’s evidence;
· sixthly, there are significant problems with OBL’s credibility;
· seventhly, OBL’s complaint arose in circumstances which render it unreliable;
· eighthly, AOB bears hostility towards his father;
· ninthly, the appellant has consistently denied the allegations; and
· tenthly, the appellant is a man of good character.
Without derogating from those ten aspects, in oral argument senior counsel for the appellant submitted that much of what OBL had said was improbable, and, properly understood, her evidence was not supported by OBP’s evidence for three key reasons:
· first, there are significant differences between their accounts, in circumstances where there was ‘a very brief moment’ for OBP to make observations, and there was ‘a degree of interpretation and assumption about what he saw’;
· secondly, OBL’s version was provided in a highly ‘emotionally charged’ atmosphere, which was ‘highly conducive to the production of unreliable, if not false, allegations’, OBP being ‘subject to those same pressures and emotions’; and
· thirdly, given that the appellant and the children were in the bedroom for only a short period, punctuated by MOB walking past the room, looking in and talking to them, it is unlikely that the offending could have occurred.
Furthermore, senior counsel submitted that there were a number of matters that significantly detracted from OBL’s reliability and credibility:
· first, the evidence of alleged uncharged acts in the appellant’s motor vehicle was highly implausible;
· secondly, the allegation that the appellant would show OBL his genitals on ‘FaceTime’ was improbable;
· thirdly, OBL’s evidence that the appellant had given her his telephone five or six times to take a picture of her ‘fanny’ was unworthy of belief;
· fourthly, OBL’s account of the circumstances surrounding charge 3 was very unlikely;
· fifthly, OBL’s account of the circumstances surrounding charge 4 was also very unlikely;
· sixthly, OBL’s account of the appellant’s activities at the movies was improbable; and
· seventhly, the circumstances of charge 1 itself — in particular, the suggestion that the appellant had again placed his hand down OBL’s pants after OBP left the room — were implausible.
As will become clear, we accept the majority of the submissions made by the appellant’s counsel.
The respondent’s submissions
Although it was fairly conceded by counsel that the ground of appeal was ‘certainly arguable’, the respondent submitted that the evidence led before the jury did not ‘oblige’ the jury to acquit the appellant. It was submitted that the cumulative effect of the evidence, and the totality of the circumstances, allowed the jury to return a guilty verdict on charge 1. There was extensive cross-examination as to the prosecution witnesses’ credibility and reliability, and there ‘were a number of matters that would have lead the jury to have questions about the credibility and the reliability of the complainant and her brother generally’. This was a case where the advantage experienced by the jury, in seeing and hearing the evidence, was significant. Counsel submitted that the ‘fundamental position of the respondent though is that the jury were best placed to hear and observe what were fulsome [sic.] cross‑examinations … [and were] best able to make a decision as to when they grappled with the evidence of the complainant and grappled with the evidence of [OBP], whether they were prepared to accept certain parts of their evidence and reject other parts of their evidence’.
The evidence on charge 1
Returning to the circumstances of charge 1, the evidence was that on 4 July 2014 the appellant visited his grandchildren at premises they shared with their mother, MOB. The appellant took with him an ‘Xbox’ video game as a gift for OBP’s birthday. When the appellant arrived he spoke with MOB and the two children in the lounge room and gave OBP the game.
The appellant and the children then went to MOB’s bedroom, located at the front of the house, to set up the video game. (It seems that the Xbox console was there set up so that his mother could readily monitor OBP’s usage.) MOB stayed in the lounge room, ironing. OBP sat on the floor in front of the television, whilst the appellant and the complainant were on the bed behind him. OBL said that she fell onto the bed, and the appellant pretended to do the same, so he ended up lying beside her. The complainant said that it was in this position that the relevant touching occurred. OBL alleged that the appellant touched her by putting his hands down her pants. His hands were inside her underwear touching her ‘fanny’ on the ‘inside’.
OBL took part in a VARE[10] on 9 July 2014, and later on 25 November 2014. These VAREs were stood as her evidence in chief.
[10]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367.
According to her first VARE, OBL said she told the appellant a number of times to stop, in circumstances where her brother was in close proximity to her and the appellant. She said she told the appellant to ‘to get off [me] but he wouldn’t listen’, and she said, ‘Please stop’. OBL claimed that she repeatedly said, ‘Can you please get out’, and said that she told the appellant, ‘That’s inappropriate because you’re a 59 year apart age [sic]’. The complainant also claimed that she asked her brother a question about the video game, and that the appellant also asked OBP about the game, whilst the improper touching was said to be occurring.
The prosecution case was that OBP turned and saw what was occurring after his sister spoke to him. The complainant said that OBP ‘looked back and he saw my grandad have … his hand in my pants and then he obviously just took it out as he saw’. OBP left the bedroom and told his mother that the appellant had his hands down the complainant’s pants. Remarkably, OBL claimed that after OBP left the room the appellant again placed his hand in her pants (this evidence being left to the jury as ‘context’ evidence). He took it out when her mother walked past the room. We pause to observe that at trial, OBL said that there was no second touching, and what she had told the police was wrong.
The denials
Once OBP made his allegation to his mother, she immediately raised it with the appellant, who denied any wrongdoing in the clearest of terms. Significantly, MOB asked her daughter if anything had occurred, and she said that nothing had happened. The appellant left the house, and OBL made further denials. Also significantly, OBP later apologised to the appellant for making the allegation up (a matter to which we will return). Nothing of relevance then took place until OBP spoke with his father on 6 July 2016. Up to that point in time, both the appellant and the complainant had denied that anything improper had occurred, and OBP had recanted.
Indeed, the appellant has consistently denied any wrongdoing. First, on 4 July 2014 when told of the allegation by MOB he said in clear terms that it did not happen. Secondly, when his son AOB angrily confronted his father with the allegation, the appellant calmly denied it. Thirdly, the appellant made emphatic denials when interviewed by police on 10 July 2014.
It needs be acknowledged that the appellant’s repeated denials fall to be evaluated against the background that the appellant was a 65 year old man[11] of positive good character with no prior convictions. Several witnesses attested to the appellant’s unblemished character. Significantly, OBL’s mother said she had known the appellant for 20 years and she knew that he would never do the things he was accused of. The evidence was that the appellant had never been inappropriate with his grandchildren (or any other children).[12] Axiomatically, evidence of good character bears not only on the unlikelihood of guilt, but on the credibility of an accused person who denies guilt.[13] In this case, it was deserving of weight on both those matters.
[11]He was born in July 1948.
[12]Evidence Act 2008, s 110(3). And see Bishop v The Queen (2013) 39 VR 642, 651–2 [37]–[38].
[13]Attwood v The Queen (1960) 102 CLR 353, 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ); Eastman v The Queen (1997) 76 FCR 9, 53; R v Warasta (1991) 54 A Crim R 351, 354; Bishop v The Queen (2013) 39 VR 642, 651 [36].
MOB’s conflicting account
Apart from the appellant’s denials, however, there are other more formidable obstacles that stand in the way of ready acceptance of OBL’s account. The first of those is that MOB’s observations are inconsistent with the complainant’s version.
MOB said that she walked past the bedroom at least twice while the appellant was in there and spoke to the children. She said that she left the lounge only a very short time after her children and walked past her bedroom. MOB said the door was open and she could see into the room. She stopped for a moment — ‘to see how they [were] going’ — and spoke to the children about the computer game. Importantly, she saw the appellant and OBL sitting upright on the bed together, not lying down. She saw that the appellant had his right arm around OBL’s shoulder and his left arm was by his side. OBP was looking at the television screen. MOB then continued outside.
From the porch outside, there are windows that enable easy viewing into the bedroom. MOB said that she may have looked into the room as she sometimes did. On her way back from outside, she again looked into the bedroom and saw that ‘nothing had changed, [the appellant] and [OBL] were still on the bed and [OBP] was continuing playing his game’. It was only a couple of minutes later that OBP left the room. During the time that the appellant and the children were in the bedroom, MOB did not hear any strange sounds, or her daughter say anything like ‘get off’.
Despite MOB’s evidence, it is important to note that both children denied that their mother was in the passageway. And we note that the appellant in his interview with police said that MOB was walking backwards and forwards past the doorway, and had seen them three times in the room.
The complainant’s credibility
Not only does MOB’s account conflict with OBL’s account in important respects — in particular, the positions of the appellant and OBL on the bed, and the position of the appellant’s arms — but there are a number of other factors which impinge on OBL’s credibility. Principal among those is OBL’s repeated assertions that the offending did not occur.
As we have mentioned, when OBP spoke to his mother, OBL immediately asserted that the appellant had not done anything to her.
Next, after the appellant had left, OBL again told MOB that the appellant had not touched her. Her mother directly asked her about the subject in the absence of OBP. MOB’s evidence was that the complainant’s denial was clear, in circumstances where she and the complainant had a relationship of confidence.
Later the same day, according to OBL she and her mother went out for coffee. MOB agreed that when she spoke to OBL over coffee ‘or whatever it was’, OBL ‘never mentioned anything further about what might have occurred in that bedroom earlier that afternoon’.
Finally, OBL sent a text message to her father in the evening of 6 July 2014, denying that the appellant had done anything to her.
Moreover, it is tolerably clear that OBL told significant lies. Thus, she told the informant that the appellant had sent a text message to her telling her to ‘just lie’ to the police, and that this message caused her mother to believe the allegations. Such a text message did not, however, exist.
Further, AOB claimed that the complainant had told him that her grandmother had witnessed the appellant with his hands down her pants, and that she had told OBL to keep it a secret. OBL gave evidence, however, that her grandmother had seen no such thing; and she denied ever telling her father that her grandmother had seen the appellant with his hand in her pants.
Further, OBL said that she thought it appropriate to tell lies — even in serious circumstances — if she thought that it was a good idea.
And quite apart from her more obvious lies, OBL made a number of improbable allegations. Thus, as we will later discuss when dealing with ground 2, OBL told police in the VARE of 9 July 2014 that on five or six separate occasions whilst attending ‘kiddie movies’ (such as ‘Frozen’ and ‘How to Train Your Dragon’) the appellant rubbed a clear gel on her vagina whilst she was seated beside him in the theatre. The appellant allegedly put his hand inside her pants and underpants to do this, whilst she sat to the right of him and her brother to the left. Even acknowledging the experience of the courts that sexual offences are sometimes committed in highly risky circumstances, it beggars belief that an adult male could put his hand inside the pants of a female child and masturbate her in a public theatre without attracting the attention of other adults or children (including OBP, who sat adjacent to them). OBL’s claim that such incidents occurred is highly implausible.
Further, in the VARE of 9 July 2014, OBL also said that on several occasions when the appellant picked her up from school he would touch her ‘fanny’ for ‘five minutes in the car’. She said that the appellant was driving; OBP was in the front passenger seat; and she was in the back seat behind her brother. OBL alleged that the appellant ‘usually stretched his arm [back]’. Usually, she said, ‘he put his hand on the steering wheel and then he reached [one of his hands] back to me’, although she described an occasion when she was wearing her school uniform and ‘bike shorts’, and the appellant touched her ‘in’ her ‘fanny’ by reaching into her bike shorts ‘from the top’. She claimed that OBP ‘did nothing ‘cause he didn’t really see it much’. Again acknowledging that some sexual offending involves risky behaviour, simply from a mechanical standpoint OBL’s allegations relating to the appellant’s conduct in the car are improbable. It is also implausible that OBP could have failed to observe the behaviour alleged, or that, given his apparently outspoken and precocious nature, he would have failed to say anything about the conduct.
Besides the allegations relating to incidents at the movies and in the appellant’s car, there are other allegations that OBL made in the VARE that strain credulity. For example, the complainant claimed that the appellant showed her his ‘private part’ on FaceTime but she ‘looked away’. She also claimed that the appellant gave her his phone ‘five or six times’ and asked her to record ‘touching [her] fanny’. We think these allegations to be implausible. Given the other improbable allegations that we have referred to, however, we think it unnecessary to say any more of these last two claims.
OBP’s evidence provides scant support for the complainant’s evidence
The prosecution relied on OBP’s evidence as supporting his sister’s account. In our view, however, OBP’s evidence is somewhat inconsistent with OBL’s version, and, at best, provides scant support for the complainant’s version of the critical events.
Thus, as to the positions of his sister and grandfather, OBP gave evidence at trial that he saw that the appellant and the complainant were ‘sitting on the bed’, rather than lying down (this, of course, being consistent with MOB’s evidence).
With respect to what could be heard, OBP said that nobody was speaking in the room at all. This conflicts with OBL’s evidence, in which she claimed that she made several vocal protests to the appellant about his behaviour. OBP claimed to have heard other — it might be thought, more subdued or subtle — sounds, yet he heard no protests from his sister about his grandfather’s conduct, or any question about the game. Indeed, OBP claimed that his attention was drawn to his sister and grandfather because of a sound, rather than any remark or question.
Hence, in his VARE of 9 July 2014, and in other evidence at trial, OBP said — quite implausibly — that the sound was like somebody rubbing their private parts ‘really fast’. This was a sound OBP knew because it was the same sound that he himself made when he watched pornography alone and touched his private parts. As is obvious from the foregoing, however, OBL gave no evidence of any such sound being made, or, for that matter, of any vigorous rubbing of her genitals which might have emulated the kind of sound that OBP claimed to know.
Although, perhaps, not of great significance, we also note that at one point in his evidence OBP said that he did not see the appellant’s hand on the area of the complainant’s vagina, but in his quick look he saw the appellant’s hands in the area of the complainant’s ‘tummy’. (He also said — this being the high-water mark for the prosecution of his evidence — that he believed that the appellant’s hand came out of the complainant’s underwear). Additionally, OBP said— despite not having seen it — that the appellant placed his hand inside his sister’s pants a second time, a suggestion that OBL completely disavowed at trial.
OBP’s recantations
The reliability and credibility of OBP’s evidence also falls to be assessed against the background that on no less than four occasions he recanted and apologised for making up the initial allegation.
First, at around 5.39pm on 4 July 2014, OBP sent a text to the appellant stating that he was sorry for what he had said.
Secondly, on 6 July 2014, AOB said OBP telephoned him two or three times and told him that the events with the appellant did not happen.
Thirdly, OBP agreed that there were text messages that he sent in which he said that it was ‘very stupid’ of him to say those things about his grandfather and that they were not true.
Finally, at approximately 11.33pm on 6 July 2014, OBP again apologised to his grandfather by text message, stating that he was sorry. Indeed, on 7 July 2014, OBP greeted the appellant with a big hug when he met him at the movies.
OBP’s general reliability and credibility
Besides OBP’s recantations, there are other things that tend to adversely affect his reliability and credibility.
Taking a benign approach to his evidence, OBP’s sole observation was very brief, and achieved by a glance over his shoulder. He at no stage looked back again, even after once more hearing the same noise that had attracted his attention. OBP conceded it was easy to make mistakes, to get wrong impressions and to jump to conclusions.
We think the potential for OBP to have been mistaken, to have gained a wrong impression, to have jumped to a wrong conclusion and otherwise to have misinterpreted innocent interaction between his grandfather and sister, to be palpable in circumstances where the evidence suggests that, despite being only 11 years of age, OBP extensively viewed pornography.
OBP said that he obtained access to pornography at home, and rubbed his private parts whilst watching it. Furthermore, MOB caught OBP viewing pornography; and, on 7 July 2014, his stepmother, ‘BZ’, reported to the Department of Human Services (‘DHS’) that OBP was addicted to pornography — his favourite website was ‘humping.com’ — and had shown it to her children. BZ reported that OBP had explained sex in graphic detail to her son (and OBL to her daughter), and that the complainant had disclosed that OBP masturbated all the time. AOB told DHS that BZ did not want OBP in their house by reason of his sexualised behaviour.
Objectively, OBP’s sexualised and precocious nature is also emphasised by the extraordinary fact that he created an ‘Instagram’ profile that purported to make himself available for dating, containing an altered photograph of himself with a large cigarette accompanied by the words ‘puff puff pass’ (an apparent allusion to cannabis smoking).
And for a different — but related — reason, it is also extremely disturbing that OBL’s evidence was that she saw the pornographic movies that OBP watched, and saw him ‘rub his private parts very quickly’.
In our opinion, it is likely — taking a benevolent view of his evidence — that OBP’s extensive viewing of pornography influenced his perceptions to an extent that his evidence should be judged to be unreliable. Thus, for example, it is telling that OBP claimed that the sound that he heard in the bedroom was the same sound that he made when rubbing his own private parts ‘very fast’.
And there are other reasons for regarding OBP’s credibility as dubious. Thus, MOB agreed that he was a habitual liar. OBP himself agreed that he stole money from his mother’s purse and used her credit card without permission. He also agreed that he had been in trouble for improperly ‘demanding money from another student at school’ for a period of a year. AOB told police on 6 July 2014 that OBP had exhibited behavioural problems over the previous 12 months; and three days later, AOB told the DHS that OBP needed the assistance of a psychiatrist and medication. OBP’s difficult behaviour included locking his mother and sister outside their house and wiping his mother’s telephone and computer.
Circumstances making the initial complaint unreliable
Additionally, the complaint about the appellant’s alleged sexual offending arose in circumstances which affect its reliability.
The evidence revealed that OBP spoke to his father during the evening of 6 July 2014, and told his father that he had seen the appellant with his hand down the complainant’s pants. (The complainant agreed that she had heard her brother say this.) OBP gave evidence that he knew that his father did not like the appellant ‘at all’, and knew that his father would listen if he said ‘something that was bad’ about the appellant. OBP said that he had wanted to raise the subject of the events two days earlier with his father because he was ‘feeling uncomfortable’, but he ‘didn’t really get much of a chance to do that’, because AOB became angry. OBP said that he did not get a chance to explain what he had seen.
In his evidence, AOB conceded ‘absolutely’ that he became angry when he heard the allegation (even though, as he admitted to police, he did not believe it). His first reaction was to telephone MOB and tell her that ‘if she did not call the police [he] would take steps to have the children taken from her’. AOB’s evidence was that he knew his children were present at the time he said those things to their mother.
Both OBL and OBP heard the threat made by their father, saw their mother crying and observed her to be ‘panicking’. They both became upset. Neither child wanted to live with their father. Indeed, OBL stated that her brother said, ‘I’m just going to commit suicide ‘cause I would never want to live with him’.
It was in these circumstances that MOB, concerned for what would occur concerning custody of her children, telephoned the police. Her ex-husband then made another abusive telephone call to her as a result of which she became more concerned and upset. OBL witnessed her mother’s upset state. She also heard discussion about her father already having a lawyer and, so it seems, his attempts to enlist the involvement of children’s protection services. OBL also spoke to her father, who was ‘upset’ and ‘angry’. She said that she knew that he did not believe that nothing had occurred. It was only after this conversation, OBL agreed, that she told her mother that her grandfather had ‘done things’ to her. OBP heard this. At the time OBL told her mother these things, her mother was ‘panicking’. OBL gave evidence that she too ‘panicked’, and was upset by the thought that her father would get custody of her.
It may thus be observed that OBL’s complaint was made — after initial denials — in a highly charged atmosphere of anger on her father’s part and considerable upset and panic on her mother’s part. OBL herself was ‘panicked’, and both she and her brother feared that their mother would lose custody of them if a complaint was not made to police. These factors, in our view, considerably undermine the reliability and credibility of OBL’s and OBP’s complaints.
Conclusion
In light of the matters discussed above, in our opinion it simply was not open to a jury — properly applying themselves to their task — to convict the appellant. They must have had a reasonable doubt about his guilt.
Ground 2 — Evidence of the Ziploc bag as context evidence
In the course of the VARE conducted on 9 July 2014, OBL claimed that while she was seated in a movie theatre, the appellant rubbed a clear gel — she thought it may have been called ‘Spyrogel’ — on her ‘fanny’. She claimed that the appellant had the gel in a ‘Ziploc’ bag, ‘but he got it from a tube’. OBL was seated on the right side of the appellant and her brother was on the left. The appellant, she claimed, ‘went inside my pants and inside my undies and he started rubbing it on’. It ‘stang [scil, stung] a lot’. The appellant only ever used the gel on her ‘at the movies’. This happened, she thought, ‘about five or six times’.
In the record of interview conducted on 10 July 2014, the appellant vigorously denied taking a Ziploc bag with lubricant in it to the movies (or, for that matter, touching OBL’s vagina). He said his wife ‘has some lubrication for her issues’. Police showed the appellant a picture that they had taken of a tube of ‘Stomahesive’ whilst executing a search warrant at the appellant’s residence. As the appellant said, however, Stomahesive is not a lubricant, but an adhesive used to glue a colostomy bag over his wife’s stoma. He denied ever taking it to the cinema. Police also showed him a photograph of a Ziploc bag containing gel — later identified as ‘KY’ gel — that was not in a tube. The appellant said he had ‘no idea’ what it was, but said ‘that stuff is an adhesive … It glues things on’.
Over objection by the appellant’s counsel, the trial judge declined to exclude the evidence of the finding of the Ziploc bag containing gel. The essence of the judge’s ruling is captured in the following passage:[14]
The argument put forward by the defence in brief terms is that this piece of evidence will mean the risk that the jury would use the evidence for tendency purposes, notwithstanding the firm direction not to do so, is too great. Thus, by operation of s 137 [of the Evidence Act 2008], the risk of the evidence being misused or being seen to have greater weight than it should have means that the probative value of the evidence as part of the context evidence was not outweighed by the unfair prejudice.
My first decision as set out as to the evidence being tendency evidence reveals that there are risks. The evidence, and indeed all the impugned evidence, could be used for improper tendency purposes, that is the risk. But in my view, the directions forbidding tendency reasoning in this case tailored with counsel’s assistance relating to this clip-lock bag can overcome the risks of unfair prejudice, thus the evidence is admissible as part of the context evidence.
[14]Emphasis added.
In our opinion the evidence of the finding of the bag with gel in it should have been excluded. It had little or no probative value, but the risk of unfair prejudice was substantial.
The judge did not admit the evidence as tendency evidence, but as evidence of context. Context evidence of this kind is admitted under the banner of relationship evidence. It may be tendered to explain the circumstances of the offence charged, so that a complainant can give a full account and so that his or her description of the appellant’s conduct making up the relevant offence would not appear ‘out of the blue’ to the jury and inexplicable on that account.[15] Such evidence may also assist in explaining the complainant’s conduct; for example, why he or she did not complain in a timely manner about the offending.[16] Context evidence provides background information, which may assist the jury to assess and evaluate the other evidence in the case in a true and realistic context.[17]
[15]Roach v The Queen (2011) 242 CLR 610, 624 [42]. See also Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451, 472 [87] (Priest JA) (‘Murdoch’).
[16]Steadman v The Queen(No 1) [2013] NSWCCA 55, [9]; Qualtieri v The Queen (2006) 171 A Crim R 463, 487 [80]. See also Murdoch 472–3 [87].
[17]R v AH (1997) 42 NSWLR 702, 708–9; R v Sadler (2008) 20 VR 69, 87–8 [62].
It is difficult to see how the finding of the Ziploc bag containing gel put OBL’s evidence into its true and realistic context, explained why she had not earlier complained or helped to show that the charged conduct was not an unusual event. Putting to one side for present purposes the implausibility of her account about the appellant’s use of gel in a public theatre, it was not suggested that any of the charged conduct was accompanied by the use of gel. To that extent, the so-described context evidence of uncharged sexual acts was markedly different to the charged conduct.
Further, there was nothing, in our opinion, to connect the Ziploc bag with gel in it to OBL’s account. In the course of cross-examination, she was shown the photographs of the Ziploc bag containing gel and of the tube of Stomahesive, but identified neither.
The sting in the evidence, however, was its potential for misuse. As the judge recognised, there was a real risk that the evidence ‘could be used for improper tendency purposes’. In our view, the risk of that danger outweighed any probative value that the evidence possessed. Consistently with s 137 of the Evidence Act 2008, the judge should have concluded that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant and refused to admit it.
Ground 4 — An irregular empanelment
The trial judge empanelled the jury by requiring each prospective juror whose number was called to stand up when their number was called, turn and look toward the appellant in the dock and then proceed by the most direct route to the jury box (the ‘stand and face the dock’ procedure).[18] Under this ground the appellant contends that this constituted a material irregularity in the selection of the jury as the appellant was not provided with a reasonable opportunity to exercise his right to peremptory challenge of prospective jurors.
[18]When instructing the jury about the process the trial judge stated that if their name was called they were to stand up, turn around and look at the accused, and then walk to the dock in the manner most convenient to them: see Digital Recording at approximately [12:24]. As to the requirement to look at the appellant, the learned trial judge stated that it did not have to be an endless stare, but needed to allow the appellant to see them and make a challenge if he so wished: see approximately [12:25].
Section 39 of the Juries Act 2000 (‘the Act’) relevantly provides:
(1) Each person arraigned is allowed to challenge peremptorily—
...
(2) In a criminal trial, each peremptory challenge must be made as the potential juror comes to take his or her seat and before he or she takes it.
(3) On the application of a person arraigned, the court must permit a legal practitioner who represents the person, or the clerk of the legal practitioner, to assist the person in making a peremptory challenge.
The origins of the accused’s right of peremptory challenge, the differences in the empanelment process adopted in each of the Australian States and Territories, and the rationale for the continued existence of the right of peremptory challenge were comprehensively explored in Theodoropoulos v The Queen[19] and need not be repeated. While the procedure adopted in each State varies, the court noted in Theodoropolous that what was common across all jurisdictions was that a sufficient opportunity to view each prospective juror was an integral feature of the proper exercise of an accused’s right to peremptory challenge.
[19][2015] VSCA 364 (‘Theodoropoulos’).
The following settled propositions derived from Theodoropolous are relevant to the issues raised in the present appeal:
(i)an accused has, as a fundamental requirement of a trial according to law, not only the right to a jury but to one that was properly selected in accordance with the Act;
(ii)if the accused is unable to adequately exercise the right of peremptory challenge, the defect will go to the constitution of the tribunal of fact which is to pass between the accused and the Crown and is no mere or inconsequential irregularity;
(iii)whether the opportunity to exercise the right of peremptory challenge is adequate will depend upon the circumstances of each case;
(iv)there is no prescribed practice that trial judges in Victoria must follow, but whatever the procedure adopted, it must provide the accused with a reasonable opportunity to see the prospective juror’s face before they enter the jury box;
(v)a reasonable opportunity to challenge may be provided by employing the traditional practice of a ‘parade’ by the prospective jurors past the dock or by directing prospective jurors, whose name or number is called, to stand up and turn to face the accused in the dock before proceeding to enter the jury box, or by some other procedure which satisfies the objective of enabling a visual inspection of the potential jurors;[20]
(vi)in Victoria, where the right to challenge is lost upon the juror taking their seat in the jury box, the practice of challenging the juror before they enter the jury box rests upon the sound view that it is too late and risky to wait until they are in the jury box to challenge them; and
(vii)the failure of the accused to object to a process that constitutes a fundamental irregularity in the jury empanelment is not an irregularity capable of being waived.
[20]Ibid [77]-[93] (Redlich and McLeish JJA) (citations omitted).
In Theodoropoulos and the subsequent decision of this Court in Cook v The Queen[21] the convictions were quashed as there was a fundamental irregularity in the jury empanelment process. In both cases the trial judge required the juror, when their number was called, to stand and proceed directly to the jury box and take a seat therein. They were neither required to walk past the accused in the dock or turn and look at the accused in the dock before proceeding to the jury box. This process of empanelment failed to provide the accused with an adequate opportunity to observe any prospective juror’s face from the time that their number had been called until the time they entered the jury box.
[21][2016] VSCA 231 (‘Cook’).
In Theodoropoulos there was unchallenged evidence from the accused’s solicitor, who had assisted the accused in his challenges, that neither she nor the accused had had an adequate opportunity to view the faces of prospective jurors before they entered the jury box. The Court found that the absence of any challenge to the solicitor’s evidence foreclosed any conclusions on the issues beyond the matters that she asserted in her affidavit and what could be discerned from the video recording.
In Cook, although the Crown challenged the evidence of the solicitor who assisted the accused in his challenges, the court accepted her evidence that the opportunity to view the faces of potential jurors had been inadequate. The conclusion reached in Cook that the empanelment procedure was irregular gave express recognition to the propositions from Theodoropoulos which we have summarised above.
In the further case of V[22] these propositions were again applied to the same process of empanelment. The conviction was quashed, the Crown conceding in the face of the decisions in Theodoropoulos and Cook that there had been inadequate opportunity for the accused to view the faces of prospective jurors before they reached the jury box.
[22][2016] VSCA 268R. This reference has been anonymised because of an impending retrial.
This Court has very recently had to consider the regularity of a different variant to the traditional Victorian practice of parading prospective jurors past the dock. In Beqiri v The Queen[23] the trial judge required the prospective jurors whose number was called to walk towards the dock and stop at a stipulated point within the courtroom facing the dock before turning to walk to the jury box. The Court undertook an objective assessment of the question of whether there was a reasonable opportunity to view the prospective jurors. Based fundamentally upon the video recording of the procedure that was followed, the Court was not persuaded that the accused were denied a reasonable opportunity to view the prospective jurors face-on, and to challenge them. The Court observed:
Unlike the position in Theodoropoulos, Cook, and V’s case, neither of the solicitors who assisted the applicants in their challenges depose in their affidavits to having had any difficulty in viewing the faces of the prospective jurors. Nor do they depose to any perceived lack of time to make a judgment regarding whether to challenge during the empanelment process.[24]
[23][2017] VSCA 112 (‘Beqiri’).
[24]Ibid [37].
The ‘stand and face the dock’ procedure is materially different to the procedure followed by the judge in Theodoropoulos, Cook and V, or the different variant of the parade procedure followed in Beqiri.
Prior to the empanelment, the judge in the present case informed the parties of the ‘stand and face the dock’ procedure that he intended to adopt:
You remember that I empanel by number and empanel with a no parade, and you have had that information. Any difficulties? We are going to have the jurors that are say behind where you are where [the appellant’s] family is. If they move to that aisle, they just turn around and look at him and walk whichever way they like, there will be room between the back of you and the last chairs. If they’re over there just in that aisle they will just turn around and look at him, they will work it out. Any problem?
Then, following the empanelment, the judge said:
For the transcript because it might be necessary most of the potential jurors and jurors when they stood and looked at [the appellant] did so for a time that would be at least the equivalent to a walk past or even longer. That was my assessment of it. I don’t know whether anyone else needs to comment about it, but that’s as I saw it. It seemed to work smoothly.
Neither party raised any objection to the proposed procedure or made any response to his Honour’s assessment of the procedure following the empanelment.
The appellant submits that he was not afforded a reasonable or adequate opportunity to exercise his right to peremptory challenge. It was not in issue on the appeal that the empanelment lasted in total only seven minutes and 20 seconds. The appellant relies upon an affidavit of the solicitor who assisted him in his challenges and a table, which summarises the footage of the recording of the empanelment, the content of which is not challenged. These documents set out the basis for the appellant’s argument that the duration of time and the manner in which most jurors faced the appellant provided him with an insufficient opportunity to adequately view their faces and properly exercise his right to challenge. The jurors who were challenged, he submits, were challenged solely on the basis of their occupations.
The appellant acknowledges that no objection was taken to the procedure as the decision in Theodoropoulos had not been handed down but says, as Theodoropoulos and Cook make plain, that a failure to object cannot amount to a waiver of a fundamental irregularity in the jury empanelment.
These submissions were supplemented by the evidence of the solicitor who assisted the appellant in his jury selection. He gave viva voce evidence at the hearing of the appeal. He explained that immediately prior to the empanelment he became aware that the judge intended to employ the ‘stand and face the dock’ procedure. He deposed that the challenges made were based upon an ‘intuitive response’ to the prospective juror’s occupation.
The solicitor accepted the suggestion of counsel for the respondent that in the case of some prospective jurors, who were towards the rear of the court, the opportunity to assess each juror and consult with the appellant was no less than it would have been in a conventional parade past the dock scenario. He agreed with counsel that the period he and the appellant had to view the prospective jurors varied between 1 and 8 seconds and that, on two or three occasions, the opportunity was very brief, being no more than one or two seconds. On those occasions the solicitor said that there was little opportunity to have any dialogue with the appellant. The solicitor, who was an extremely experienced criminal lawyer, said that it was one of, if not the quickest, jury empanelments in which he had ever participated. He deposed that there was insufficient time to assess the appearance of each juror and consult the appellant.
The table annexed to his affidavit sets out the challenges made, each prospective juror’s occupation, their placement in the body of the Court and the time he had to view them:
Order No. Sex Occupation Position in body of court Time facing appellant (approx.)
Comment Result 1 78 M Electronics Engineer To the left of the appellant. Not on screen. Unknown, but must be less than 8 seconds. Walked to the jury box directly in front of appellant, much like a jury parade. He appears on screen approximately 8 seconds after name is called. Juror 1 2 363 M Intensive Care Specialist First row behind bar table. Left of appellant. 3 seconds. Stands, turns around, and pauses to face the appellant. Challenge 3 36 M Sales Assistant (General) Back row, directly in front of appellant. 2 seconds. Stands and faces appellant, pausing briefly. Juror 2 4 106 M Sales Representative (General) Front row centre, behind bar table (directly behind the lectern). 1 second. Stands and turns, pausing briefly before bending over to pick his bag up. Juror 3 5 76 M Labourer (General) Back row. 1 second. When the juror stands up his head is not caught in the camera. His shoulders do not appear to directly face the appellant. Juror 4 (and foreperson) 6 126 M Financial Analyst Front row, far right of the appellant 1 second. Stands and faces, but begins to walk almost immediately thereafter. Juror 5 7 88 M Medical. Practitioner (General) Unknown, but to the left of the appellant. Unknown, but not more than 4 seconds. Walks in front of the applicant like a parade. Challenge 8 203 F Retired Personal Care Assistant Front row, behind Bar table. 3 seconds. Slowly turns to face, pauses, then walks off slowly toward the dock. Juror 6 9 90 F Enrolled Nurse Back row, to the directly to the right of the appellant. 2 seconds. Steps out into aisle and pauses directly in front of the appellant. Challenge 10 11 F Financial Planner Back row, to the right of the appellant. 1 second. Stands and continuously turns to her left, in a circular manner, before bending to pick up her bag and walk to the jury box. Juror 7 11 238 F Registered nurse Front row, behind prosecution counsel. 2 seconds. Stands and faces the appellant, pausing whilst doing so. Challenge 12 91 F Integration Aid Front row, centre, behind defence counsel. 1 second. Stands and faces, but then immediately walks toward jury box. Juror 8 13 109 F Office Manager Front row, centre, behind defence counsel. 1 second. Stands and pauses briefly before walking to the jury box. Juror 9 14 17 F Unemployed student Second row. In front of the appellant. 3 seconds. Looks twice at appellant when asked question about previous employment by Associate. Juror 10 15 48 M Builders Labourer To the left of appellant. Not on camera. Unknown, but not more than 4 seconds. After 4 seconds the juror is seen in the footage walking in front of the front row toward the jury box. Juror 11 16 69 F Personal Care Assistant Middle row, to the right of appellant. 4 seconds. Stands turns and faces the
appellant, and pauses when doing so.
Juror 12
In his evidence the appellant’s solicitor explained that, because of the risk that a prospective juror might sit down anywhere in the jury box, his invariable practice was to challenge them before they entered the jury box. He pointed out that this very risk eventuated when the first juror who entered the jury box sat down in the nearest seat to the entry to the jury box rather than walk along the aisle to the seat at the furthest end of the jury box. He then amplified his reasons for disquiet at the process that was followed. He said that the process did not permit him to discuss the prospective juror’s appearance and demeanour with the appellant. In relation to the jurors who were seated in the body of the court closest to the jury box, there was virtually no opportunity to consult with the appellant before they entered the jury box.
The solicitor testified that he took no objection to the process whilst assisting the appellant with his challenges in the mistaken belief that a similar process had previously been followed by another judge in other cases. It was as a result of the observations made by the trial judge after the empanelment, with which he disagreed, that he was prompted to say to counsel that the process had not afforded them a sufficient opportunity to assess each prospective juror.
Following the solicitor’s evidence, counsel for the appellant referred to s 39(3) of the Act, which imposes an obligation on the court to permit the accused to have legal assistance in making his peremptory challenges. He submitted that the appellant’s solicitor was unable to give him the assistance with his challenges to which he was entitled. The time for which some jurors faced the dock was such that the appellant did not have a clear and adequate opportunity to view their faces and the time that then elapsed before those jurors entered the jury box was inadequate to enable the appellant to consult with his solicitor. Accordingly a fundamental requirement of the criminal process was not observed and the conviction cannot be permitted to stand.
He further submitted that the analysis of the footage did not bear out the trial judge’s assessment that the appellant had at least the same opportunity to view the juror’s face as he would have had if the juror had been required to walk past the dock.
The respondent submitted that the procedure adopted complied with the requirements as laid out in the decisions of Theodoropoulos and Cook. Counsel placed particular reliance upon the CCTV footage of the empanelment. He submitted that the affidavit evidence, and the recording of the empanelment, did not establish that the appellant did not have a reasonable opportunity to view the faces of potential jurors for the purpose of exercising peremptory challenges.
Counsel for the respondent challenged the evidence of the solicitor in cross-examination. He sought to demonstrate that, viewed objectively, the appellant was afforded a sufficient opportunity to physically view each juror’s face prior to them entering the jury box. He invited the court to infer that had the appellant’s solicitor or counsel regarded the empanelment procedure as inadequate they would have availed themselves of the ample opportunity to raise this with the trial judge.
Analysis
The ‘stand and face the dock ’ procedure followed in this case was adverted to in Theodoropoulos as one which may satisfy the objective of enabling a visual inspection of the potential jurors.[25] The Victorian Law Reform Commission report relating to jury empanelment noted that there was at least one Victorian judge who did not require prospective jurors to parade in front of the accused but simply to turn and face the accused if balloted.[26] In Theodoropoulos, Redlich and McLeish JJA said of the Commission report:[27]
The Commission concluded that while it is reasonably necessary for the accused to have the opportunity to see the prospective jurors, the parade was an unnecessary way to achieve that. The Commission referred to the alternative approach of having the balloted juror stand and face the accused before walking towards the jury box. The Commission concluded that prospective jurors should not be required to parade in front of the accused, but judges should ensure that the accused and their legal representatives ‘have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges.’
[25]See [72](v) above.
[26]Victorian Law Reform Commission, Jury Empanelment, Report No 27 (2014) 26 [3.43].
[27]Theodoropolous, [81] (citations omitted).
If the period of time is to be ‘reasonable’, the period of time that the juror faces the dock must be such as to provide the accused with an adequate opportunity to view the prospective juror. Further, the time which elapses from the time the juror faces the accused until the juror enters the jury box must also be sufficient to enable the accused to consult with the person assisting him or her so as to enable him or her to challenge the juror before they enter the jury box.
Having viewed the CCTV footage of the empanelment, the time for which some jurors faced the dock is as reflected in the Table tendered by the appellant. That time was inadequate. It did not allow the appellant a reasonable opportunity to view some of the prospective jurors. The CCTV footage is supportive of the solicitor’s evidence, which we accept, that he entertained a level of disquiet as a consequence of the empanelment procedure. That disquiet arose because the opportunity to view some jurors’ faces was fleeting. We are respectfully unable to agree with the observation of the trial judge that the time that jurors looked at the appellant ‘would be at least the equivalent to a walk past or even longer’.
We also accept the solicitor’s evidence that the time that elapsed between some jurors facing the dock and entering the jury box was insufficient to enable him to assist the appellant in making his peremptory challenges. In the case of jurors who were seated toward the front of the court and close to the jury box, the CCTV footage (as summarised in the Table) supports the solicitor’s evidence that the time was insufficient for him to consult the appellant before they entered the jury box.
For these reasons the process adopted by the judge for empanelling the jury constituted an impermissible impairment of the appellant’s right of challenge which would require the conviction to be set aside. Ground 4 is made out.
We should, before leaving this issue, reiterate the following observations made by the majority in Theodoropoulos as to the obligation that rests upon the legal representatives of an accused to raise their concerns with the trial judge where they perceive that some irregularity in the trial process may have occurred:[28]
If they perceived that the process denied the applicant an adequate opportunity to assess whether a potential juror should be challenged, and even if they were uncertain whether the process involved a serious irregularity that would constitute a fundamental defect in the trial process, they should have raised their concern with the trial judge. Any apprehension that they could not object to it was misplaced.
[28]Ibid [91].
CROUCHER AJA:
I joined in the orders of the Court made at the conclusion of the hearing on 19 May 2017. I did so for the reasons given by Redlich and Priest JJA in their joint judgment, which I have had the benefit of considering in draft, and to which I have nothing to add.
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