R J H v Tasmania

[2019] TASCCA 8

[2019] TASCCA 8

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              R J H v Tasmania [2019] TASCCA 8

PARTIES:  R J H
  v
  STATE OF TASMANIA

FILE NO:  CCA 3040/2018
DELIVERED ON:  21 June 2019
DELIVERED AT:  Hobart
HEARING DATE:  28 May 2019
JUDGMENT OF:  Blow CJ, Brett J and Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal dismissed – Aggravated sexual assaults and indecent assault – No direction as to restriction of evidence as to complainants' sexual reputations and sexual experience.

Evidence Act 2001 (Tas), s 194M.
Aust Dig Criminal Law [3491]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of prosecutor or prosecution – Cross-examination by prosecutor of accused's son as to phone call made at request of accused when in custody – Jury not aware accused then in custody – No impropriety or unfairness.

Aust Dig Criminal Law [3514]

REPRESENTATION:

Counsel:
           Appellant:  A Hensley
           Respondent:  J Shapiro
Solicitors:
           Appellant:  Legal Aid Commission
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 8
Number of paragraphs:  49

Serial No 8/2019

File No CCA 3040/2018

R J H v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
BRETT J
MARTIN AJ
21 June 2019

Order of the Court

Appeal dismissed.

Serial No 8/2019

File No CCA 3040/2018

R J H v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ

21 June 2019

1I agree that this appeal should be dismissed, for the reasons stated by Martin AJ.

File No CCA 3040/2018

R J H v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BRETT J
21 June 2019

2I agree with Martin AJ.

File No CCA 3040/2018

R J H v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARTIN AJ
21 June 2019

Introduction

3The appellant was convicted by a jury of two offences of aggravated sexual assault and one of indecent assault.  The offences involved two female complainants, both aged 15 years.

4The appellant appeals against his conviction on two grounds related to the absence of a direction concerning lack of evidence relating to the sexual reputation or sexual history of each complainant, and the conduct of the prosecutor during cross-examination of a defence witness.  For the reasons that follow, in my opinion, the appeal should be dismissed.

Background

5In essence, it was the prosecution case that the appellant, aged in his 50s, befriended both complainants and took advantage of their youth and immaturity.  The first complainant gave evidence that on the night of 6 February 2015 she slept at the home of the appellant.  During the night she was woken by the appellant's daughter, after which the appellant got into bed with her and she fell asleep.  According to the complainant, when she woke up the next morning one of the appellant's hands was under her t-shirt and on her breast.  The appellant's other hand was under her underwear and moved from the rear of her body to the front in the vicinity of her vagina.  She laid still for a "little while". When she attempted to move away, the appellant moved with her and his fingers entered her vagina and "went in and out".  The complainant said she spoke a very quiet "no", and the offending stopped when a female friend of the appellant came into the room.

6In evidence the appellant denied that he got into the bed with the complainant.  He said he slept in his own bed and did not get out of bed until after he was woken in the morning by his daughter.  According to the appellant, when he got up, the complainant was in the kitchen.

7The second complainant gave evidence of a an occasion which occurred between about 1 July and 22 December 2014.  She was introduced to the appellant by the first complainant.  Having moved out of home, the second complainant was living in a shelter.  After explaining to the appellant that some of the persons at the shelter made her feel a little bit uneasy, the appellant offered her "a safe place to go", and said she was "more than welcome to move in".  The second complainant said it was about half way through 2014 when she moved into the home of the appellant.

8According to the second complainant, while living in the house she was given full body massages by the appellant.  She was naked during these massages.  On the third occasion of a massage the appellant penetrated her vagina with his finger.

9The appellant denied massaging the second complainant and denied ever sexually touching her.

Ground 1

10Ground 1 of the amended notice of appeal is as follows:

"1 The learned trial judge erred in not directing the jury that s 194M of the Evidence Act 2001 restricted evidence about a complainant's sexual reputation or sexual history because such reputation or history is not relevant, and that no inference can be drawn about a complainant's sexual reputation or history due to that lack of evidence."

11Section 194M is as follows:

"194M   Evidence relating to sexual experience

(1)   In any proceedings before a magistrate or court relating to a crime charged under Chapter XIV or Chapter XX of the Criminal Code or any offence under section 35(3) of the Police Offences Act 1935, including proceedings for the sentencing of the defendant, any evidence that discloses or implies —

(a)   the sexual reputation of the person against whom the crime or offence is alleged to have been committed must not be adduced or elicited; and

(b)   the sexual experience of that person, other than sexual experience which forms part of the events or circumstances out of which the charge arises, must not be adduced or elicited unless leave of the magistrate or judge is first obtained on application made in the absence of any jury.

(2)   A magistrate or judge must not grant leave unless satisfied that —

(a)  the evidence sought to be adduced or elicited has direct and substantial relevance to a fact or matter in issue; and

(b)  the probative value of that evidence outweighs any distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of that evidence.

(3)   For the purpose of subsection (2)(a), evidence does not have direct and substantial relevance to a fact or matter in issue if it is relevant only to the credibility of the person against whom the crime or offence is alleged to have been committed.

(4)   For the purpose of subsection (2)(b), the magistrate or judge must take into account the following matters in assessing the amount of the distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of the evidence:

(a)  the age of that person;

(b)  the number and the nature of the questions likely to be put to that person.

(5)   If the magistrate or judge admits evidence of sexual experience, he or she must give reasons addressing each of the requirements for admissibility specified in that subsection.

(6)   In this section, a reference to sexual experience includes a reference to —

(a)  any sexual activity or sexual behaviour of that person; and

(b)  the disposition of that person in sexual matters; and

(c)  the lack of sexual experience of that person."

12At the outset of the trial, in the course of instructing the jury that they were not permitted to search the internet for any information about the matter, Estcourt J advised the jury that they could only act on the evidence given in the Court. The same direction was given in the summing-up at the conclusion of the evidence and addresses. No mention was made in the presence of the jury of s 194M or the sexual reputation or experience of either complainant, but evidence was given of sexually inappropriate behaviour by the second complainant toward, or in the presence of, the appellant and two other male persons.

13Speaking generally, it would be unusual for a trial judge to give a direction that the jury had not heard evidence about a particular topic because of a legislative prohibition.  Juries are commonly told to rely only on the evidence given in Court and not to speculate about other matters.  However, in written submissions, counsel for the appellant advanced the following propositions:

·    The credibility of each complainant was in dispute and the "primary contention" was that the complainants "lacked the necessary credibility to prove the charges beyond reasonable doubt".

·    "Because of the nature of the defence, any restriction upon cross-examining the complainants with respect to credibility necessarily hampers that defence."

·    The "unexplained absence of questions on sexual reputation or sexual experience, particularly with respect to a young person who makes a complaint of a sexual crime against an adult, may lead the jury to conclude that the complainant has increased credibility.  This is because jurors themselves may place undue weight upon this issue unless specifically directed not to."

· Section 194M is a statutory determination "that sexual reputation and experience is not, of itself, ordinarily relevant to the facts in issue on a trial and never relevant solely as to credibility." This is a "legal fiction" to which there are no exceptions.

·    "That ban on cross-examination with respect to credit to reference to sexual reputation or experience requires explanation by way of direction.  Directions exist in order to ensure a jury does not fall into error in their reasoning process.  A simple direction that the jury not draw any inferences from the lack of such questioning, accompanied by a short summary of why such questions are not present, would be sufficient."

·    "A failure to give such a direction risks encountering the operation of the same prejudices that saw the legislation enacted in the first instance – that is, that a person with a 'scandalous' sexual reputation or history is of lower credibility, and a person with a 'good' sexual reputation or history is of higher credibility."

14At trial, the appellant was represented by experienced counsel who did not request any direction concerning the issue now raised.  It is not surprising that no request was made.  Such a direction would have been inappropriate.

15The appellant denied that any sexual encounter occurred with either complainant. Both complainants were aged fifteen years. In these circumstances, regardless of s 194M, the sexual reputation or experience of the complainants was irrelevant. Their sexual reputation or experience could not bear upon their credibility.

16Further, I am unable to understand how an "unexplained absence of questions on sexual reputation or sexual experience" might lead a jury to conclude that a complainant had "increased credibility".  There is simply no basis for the view that a jury would expect questions on these topics or that, contrary to the explicit directions by the trial judge, the jury might have speculated about these matters.  Even if the jury engaged in impermissible speculation, there is no basis for a concern that the jury might have regarded the absence of such questions as enhancing the credit of either complainant.

17During oral submissions, counsel for the appellant was asked what inference the jury might draw by reason of the absence of questions concerning the sexual experience or reputation of the complainants.  Counsel responded that the jury might infer from the absence of such questioning that the evidence of each complainant was "more credible".  As to how the jury might reason to such an inference, acknowledging that it would be an "irrational" process, counsel suggested that the jury might reason that because of the age of the complainants, and their lack of sexual experience, their evidence was "more credible".

18The "irrationality" of which counsel spoke is self-evident and well demonstrates the fallacious nature of this submission.

19In the course of his oral submissions, counsel for the appellant also advanced a new basis upon which he submitted that a direction as to s 194M was required. Counsel submitted that, during cross-examination, by reason of s 194M, the appellant was unable to expand his evidence concerning the sexualised behaviour of the second complainant. This was unfair and required an explanatory direction.

20In addition, counsel contended the appellant was unable to advance a case for the defence that the complainant possessed a motive to lie.  Such a case was not put to the second complainant. Nor was it advanced at the trial.

21During cross-examination of the second complainant, it was put to her that on occasions she walked into the shower when the appellant was in the shower, and had done the same thing when the appellant's son was in the shower.  The second complainant denied behaving in this manner.  Similarly, she denied the suggestion that while in Ballarat, she went to sleep in a caravan without any clothing, and was yelled at by the appellant to put clothes on and get out of the caravan.  A suggestion by counsel that she removed her clothing while in a car with the appellant was denied, but when it was put to her that she had removed her top and bra and waved it at a passing truck driver, the complainant said "I don't recall".

22In evidence the appellant said there were "behavioural problems" from almost the day that the second complainant moved into his home.  He said she had no sense of modesty and would walk around the house in her bra and undies.  He gave evidence that the complainant attempted to get into the shower with his son, and that on an occasion in the car the complainant removed her shirt and flashed her breasts at a passing truck driver.  According to the appellant, when they stayed in Ballarat, the complainant walked around the house in her bra and undies, and he was told by his son that the complainant had tried to get into the shower with him.  The appellant also gave evidence of an occasion when the complainant was asleep in the caravan without clothing, and he said "get the fuck out of the caravan, put your clothes on, stop playing your stupid fucking games".

23As to the incidents in Ballarat, the occupier of the premises was a friend of the appellant.  He gave evidence that the behaviour of the second complainant was "unacceptable" by reason of her attitude and the way she dressed.  He said she got around in "skimpy stuff", meaning bra and undies.  He also gave evidence of hearing the appellant berating the complainant at the caravan and telling her to put clothes on.

24The appellant's son lived with the appellant during the relevant period.  He gave evidence that the second complainant constantly walked around in "next to nothing in terms of her dress", and on multiple occasions entered the bathroom while he was having a shower.  He said she would stand around telling him to hurry up, while "pretty much stark naked".  He said there were occasions when he heard his father yelling "Get the fuck out of the shower. I'm in here".

25As to events in Ballarat, the appellant's son said the second complainant walked around so scantily dressed that there was a complaint from the neighbour and, as had occurred at the appellant's home, the complainant tried to get into the shower while he was showering.

26It is against the background of this evidence that the appellant's complaint that he was unfairly hampered in his evidence by s 194M is to be assessed. The appellant was cross-examined about the evidence of the second complainant that she did not understand he was in a relationship with the female friend until she realised that occasionally they slept together. The following evidence was given:

"A[The complainant] knew because [her] behaviour – which I am not allowed to talk about – ceased everyday [the female friend] came home from work and then resumed the moment that she was out of the house.

Q[The complainant's] behaviour that you're not allowed to talk about.  What, you're suggesting that [the complainant] was behaving sexually towards you, are you?

A       [The complainant's] inappropriate behaviour.

Q       What, and that was sexually towards you?

A       It was towards myself, towards my son.

QWhat, so you're now claiming that [the complainant], a 15 year old girl, was also sexually attracted to you as well as the 22 year old [the appellant's son] in the house?

Objection

…

QSo is that what you're saying that [the complainant] was sexually attracted to you as well?

A       I don't know what she was, she seemed to have a fascination for all things male.

Q       Right. And that included you –

A       Included me, included my son.

Q       – the 58 year old man. Right. Included you as a 58 year old man?

A       Oh yeah and –"

27In oral submissions, counsel for the appellant submitted that the appellant has experienced a "sense of grievance" because, in evidence, he was unable to expand upon the behaviour of the second complainant because he had been told of the prohibition under s 194M. In these circumstances, urged counsel, a direction concerning the prohibition would "kill" that sense of grievance.

28Counsel also contended that if the appellant had been able to expand upon his evidence, he would have been in a position to advance a case that the second complainant had a motive to lie.  She had made sexual advances towards him and his son, but had been rebuffed.

29These submissions are without merit. First, it had been made clear during discussions with the trial judge that s 194M was not a blanket prohibition. Secondly, no application was made for counsel for the appellant at trial for leave to cross-examine or adduce evidence concerning the sexual experience or reputation of the second complainant (nor of the first complainant).

30Thirdly, evidence was given concerning the sexualised behaviour of the second complainant toward the appellant and his son, and more generally. No information was provided to the trial judge, or this Court, as to any other evidence the appellant would have given but for the fear of breaching s 194M. No submission was made as to how additional evidence would have advanced a case that the complainant had a motive to lie.

31Finally, in substance, the appellant and his son gave evidence of rejecting the second complainant's sexual behaviour in their presence.  However, counsel for the appellant at trial did not suggest to the jury that the second complainant had a motive to lie because her advances to the appellant and his son had been rebuffed.  Counsel suggested that the evidence of both complainants should be rejected for a number of reasons, but possession of a motive to lie because of rejection was not a case advanced to the jury.

32This alternative argument does not support the appellant's contention that the trial judge should have given a direction concerning the operation of s 194M. There was simply no occasion for such a direction. Evidence concerning the sexualised behaviour of the second complainant was before the jury, but counsel obviously made a forensic decision not to attack the credibility of the second complainant on the basis that she had a motive to falsely accuse the appellant of sexually assaulting her. Even if that case had been advanced before the jury, it would not have been appropriate for the trial judge to give a direction concerning s 194M.

Ground 2

33Ground 2 of the amended notice of appeal is as follows:

"2   The learned prosecutor unfairly challenged the credit of [the appellant's son] by asserting a factual basis the learned prosecutor ought to have known was false, and by having [the appellant's son] read a prior telephone call by him that was out of context and could only be properly contextualised with reference to highly prejudicial material, said challenges to the credit of [the appellant's son] leading to a miscarriage of justice."

34Counsel for the appellant provided the Court with a written outline of the appellant's submissions concerning ground 2, but explained that, for ethical reasons, he was unable to assist the Court with oral submissions. The appellant was given leave to make oral submissions concerning this ground and did so in a calm and logical manner.

35As mentioned, the appellant's son lived with the appellant. In addition to evidence concerning the behaviour of the second complainant, he gave evidence that he was at home during the evening described by the first complainant as the occasion of the offending.  He said that at about midnight he was alone in the lounge-room with the first complainant, and went to the appellant's room to say goodnight.  The appellant and his female friend were in bed, and he said goodnight to the appellant who was awake.

36The appellant's son gave evidence that he retired to bed and was awoken the next morning by his young sister.  He got up and went to the kitchen where he heard his father call from his room and ask for coffee.  At that time the first complainant was asleep in the spare room.  Later the complainant got up and starting making breakfast for herself.  It was a normal morning.

37During cross-examination of the appellant's son, on more than one occasion it was put to him that in March 2017 a police officer came to the house in Ballarat in which he was residing and asked if he would be willing to make a statement.  He responded that he was advised by the officer that although Tasmania Police had asked for a statement, police in Victoria were not permitted to take a statement from a person in his position.  It was put to the appellant's son that he refused to provide a statement, rather than being told that Victoria Police could not take a statement, but he maintained that the latter was the correct position.

38Ground 2 asserts that this challenge to the credit of the appellant's son was based on a factual basis that the prosecutor "ought to have known was false".  There is no substance in this submission.  The prosecutor had available a statement by an investigating officer which conveyed information from another police officer that on 18 March 2017 the police officer had been told by the appellant's son "that he was giving evidence for the defence and would not make a statement to the police".

39No evidence was called to contradict the evidence of the appellant's son.  These questions went purely to his credit and his answers stood uncontradicted.  The cross-examination was somewhat prolix, but it was not improper or unfair.

40The second part of ground 2 concerns cross-examination of the appellant's son about a 000 call he made to police.  Over objection, he agreed he rang 000 to give them a message about his father.  He agreed that during the 000 call he said to the operator:

"I've just been dumped into this and Ma'am with all due respect I don't know what's going on, I've got told to jump through a hoop, I've just got to jump through it."

41The appellant's son agreed it was his father who had told him to jump through the hoop.  The questioning continued:

"Q      That's the – that's the type of relationship you have with your father isn't it?

A      He asked me to do something –

Q      And you do it?

AWell he asked me to do something for him because he was unable to which was what it was when he was –

QI'll just stop you, that's not (indistinct words).  He asked you to do something and you did it for him didn't you?

A      Yes, as –."

42Counsel for the appellant did not attempt to re-examine the appellant about either of these aspects of his evidence.  Counsel would have been in a difficult position attempting to re-examine about the 000 call because it related to an outstanding warrant for the arrest of the appellant.  However, counsel could have elicited that the appellant was unable to make the call and had not asked his son to say or do anything dishonest.

43In written submissions, counsel for the appellant suggested that the cross-examination concerning the 000 call "was used to imply that the appellant's son could be led into dishonesty on behalf of the appellant".  Nothing in the cross-examination implied that the appellant's son had been asked by his father to behave in a dishonest way.  Nor did the cross-examination suggest that he had behaved dishonestly in the course of the 000 call.

44In the course of his address, counsel for the prosecution spoke of the appellant and his son being in a "very, very close relationship" to the point that the appellant was a "role model".  He suggested that their relationship was not a "normal father and son relationship".  Counsel put to the jury that the jury could almost look at the appellant's son as a "younger child" who would behave in a way that the jury would expect a younger child to behave and would "help out their Dad".  Counsel urged that, knowing the serious repercussions from the charges, the son was prepared to lie for his father, and had done so.

45In essence the appellant contended that these attacks on the credibility of the appellant's son were unfair and "served to fatally undermine his credit in an unfair manner".  In these circumstances it was submitted that the unfair attacks on the credibility of the appellant's son "had the potential to cause a miscarriage of justice".

46During the summing up the trial judge reminded the jury of the submissions by both counsel concerning the appellant's son.  Counsel for the appellant did not request any further direction.

47In my view, the cross-examination about the 000 call was of marginal relevance to the issue of the nature of the relationship between the appellant and his son.  However, although it placed counsel in a somewhat difficult position for the purposes of re-examination, it was not an improper or relevantly unfair line of cross-examination.  It did not disclose any material unfairly prejudicial to the appellant.

48In my opinion, nothing in the cross-examination gave rise to the possibility of a miscarriage of justice.  The appellant was well represented at trial by experienced counsel who chose not to re-examine and conducted the trial competently.

49For these reasons, in my opinion the appeal should be dismissed.