R v Buckley
[2004] VSCA 185
•14 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.141 of 2003
| THE QUEEN |
| v. |
| GREGORY WILLIAM BUCKLEY |
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JUDGES: | WINNEKE, P., CHARLES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 October 2004 | |
DATE OF JUDGMENT: | 14 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 185 | |
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Criminal law – Evidence – Cross-examination by prosecutor as to motives of other witnesses – lying – relevance of issues at trial – Propensity evidence – Whether rightly admitted – Sexual offences – Exercise of discretion under s.398A of the Crimes Act 1958 – Whether discretion miscarried – Confession – Failure to warn jury of need to be satisfied that confession was made and of its truth – Longman warning – Whether judge went too far in directing jury that in certain events they would be bound to convict – Similar fact evidence – Whether admissible to corroborate complainant’s testimony as to offences charged or as to uncharged acts going to relationship or context – Directions concerning such evidence – Failure to warn jury of the risks of collusion and innocent infection – Criminal procedure – Joinder of counts – Sexual offences – Several complainants – Separate trials - Discretion to order separate trials - Principles guiding exercise of discretion – Juries – Whether jury affected by contents of suppression order attached to the door of court - Crimes Act 1958, ss.372 (3AA) and (3AB) and 398A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs. C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. M.J. Croucher | Leanne Warren & Associates |
WINNEKE, P.:
For the reasons given by Nettle, J.A., I agree that the application for leave to appeal against conviction should be allowed; and that a new trial be had.
CHARLES, J.A.:
Having had the advantage of reading the reasons prepared by Nettle, J.A., I agree with his Honour that the appeal against conviction should be allowed, and that a new trial should be had.
NETTLE, J.A.:
On 28 April 2003 the applicant was arraigned before the County Court at Sale on Presentment P-01461581 on 23 counts of sexual penetration with a child under the age of 16 years and indecent act with a child under the age of 16 years. Counts 1 and 2 related to a complainant whom I shall call “JG” and the remaining 21 counts to another complainant whom I shall call “KD”. Thereafter, upon the application of counsel for the applicant the judge severed Counts 1 and 2 and ordered that the trial of Counts 3 to 23 proceed the next day. The Crown filed an amended presentment No P-01461581-2 in which were included only the counts relating to KD.
Prior to the empanelment of the jury the prosecutor announced that he proposed to call JG to give evidence that at or about the time of the alleged offences against KD, the accused had told JG that his relationship with his then wife, Michelle Buckley, was unhappy; that the applicant had also told JG of an extra-marital affair that he had had with an adult woman, “LZ”; that at or about the time of the alleged offences against KD, the applicant had asked JG to approach KD about the possibility of participating in a sexual threesome with the applicant and JG; that at or about the time of the alleged offences against KD, the applicant had shown JG his scrotum in order to demonstrate to her the effects of a vasectomy operation which he
had just undergone; and as to an incident alleged to have occurred when JG and KD had slept on a mattress on the applicant’s sitting room floor shortly before the time of the alleged offences against KD.
Over objection by counsel for the applicant, the judge ruled that he would allow the prosecutor to adduce evidence from JG as to the applicant’s statements to JG concerning his extra marital affair with LZ and as to the fact that he had shown JG his scrotum, but that the prosecutor was not to adduce evidence of what the applicant was alleged to have said to JG about the state of his marriage to Michelle Buckley. Counsel for the applicant withdrew his objection to JG giving evidence about the incident when she and KD had slept together on the floor.
On 29 April 2003 the applicant was arraigned before the jury panel on the amended presentment and a jury was then empanelled and sworn. On the following day it was discovered that something of the argument and ruling on the admissibility of evidence may have been communicated to a member of the jury, and the judge therefore discharged the jury. A second jury was empanelled on 1 May 2003, but it was then discovered that one of the members of that jury had been drawn from the panel for the following week’s sittings. The judge therefore discharged that jury.[1] A third jury was empanelled on 5 May 2003, and sworn, but one of its members was then discharged when he announced that he was concerned that he could not judge the matter impartially because of his religious beliefs. At that point a further member was drawn from the panel and sworn as a replacement juror and the prosecutor began to open the case for the Crown. The opening had not gone far, however, before the judge decided that it had not been permissible to appoint a replacement juror,[2] and so the judge therefore discharged the third jury. On 6 May 2003 a fourth jury was empanelled from a panel comprised to a large extent of the persons who had been members of the third jury, and in all the circumstances the judge took the view that it was unnecessary for the applicant to be arraigned again (with which both counsel agreed). Thus the trial finally began and it continued until 20 May 2003 when the jury returned a verdict of guilty on all counts. The plea in mitigation proceeded on 21 May 2003, and on the same day the judge sentenced the applicant to three months’ imprisonment on count 1, four months’ imprisonment on count 2, two years’ imprisonment on count 3, four months’ imprisonment on count 4, two years’ imprisonment on count 5, six months’ imprisonment on each of counts 6 to 8 and two years’ imprisonment on each of counts 9 to 21, with 18 months of the sentence imposed on count 14 to be served cumulatively upon the sentence imposed on count 15. That made for a total effective sentence of three years six months’ imprisonment and his Honour set a non-parole period of two years.
[1]cf R. v. Solomon [1958] 1 Q.B. 203 at 207.
[2]R. v. Panozzo [2003] VSCA 184 at [22] – [25], per Vincent, J.A.
The applicant seeks leave to appeal against conviction on ten grounds.[3] I shall deal with them in the order of priority given to them by counsel.
[3]Another two grounds of appeal were abandoned.
Ground 12: Cross examination as to lies
The principal ground of appeal is that the judge erred in allowing the prosecutor to cross-examine the applicant, despite objection, as to whether he considered that KD, JG and Michelle Buckley had lied or perjured themselves in their evidence. In my opinion that contention is well founded.
Whatever may have been the position in the past, the law in this State is now that any witness and particularly an accused who gives evidence ought not to be asked in cross examination whether another witness is telling lies or has invented something.[4] Cross examination of that kind is impermissible because it may deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the accused in accordance with the burden and standard of proof borne by the Crown. The problems which it creates are not easily overcome by the judge telling the jury that the accused is not required to provide an explanation for the propensity of other witnesses to lie. And the very fact of the cross-examination gives to the cross-examiner clear benefits which he or she is not entitled to have.[5] The problems become particularly acute in a case like this where the central issue involves oath against oath.[6]
[4]R. v. Baldwin (1925) 18 Cr.App.R. 175 at 178-9; R. v. Leak [1969] S.A.S.R. 172 at 173-4; Palmer v. The Queen (1998) 193 C.L.R. 1 at 7 and 25; Cross on Evidence, Australian Edition at [17-485]; cf R. v. Rodriguez [1998] 2 V.R. 167 at 177 –178, per Charles, J.A. and at 184-5 per Callaway, J.A.; R. v. Costin [1998] 3 V.R. 659 at 668-9 per Charles, J.A., and see Jeremy Ganns: Before the High Court, “Why would I be lying?” (1997) Syd L.R. 568 at 576 ff.
[5]R. v. Rich (1998) 102 A.Crim.R. 165 at 170.
[6]R. v. Praturlon N.S.W.C.C.A., 29/11/1985; BC 8500376 at 9, per Street, C.J.; R. v. Gilbert N.S.W.C.C.A., 10/12/1998; BC 9806789 at 10 –11.
In R. v. Costin[7], Charles, J.A. noted that Victorian courts were once more disposed to permit cross-examination of that kind than were courts in some other States. As his Honour observed, however, even as matters then stood the High Court had granted special leave to appeal against this court’s decision in R. v. Palmer. The High Court later upheld the appeal and in so doing made plain that, despite the practice of the past, the approach now to be followed in this State should be the same as that which is followed in other States.
[7][1998] 3 V.R. 659 at 668-9.
It is also well to remember that cross examination of a witness as to whether another witness is lying is improper. For as is explained in Harrison’s Law and Conduct of the Legal Profession in Queensland[8], that sort of cross-examination is calculated to embarrass the witness. While it is legitimate to suggest to the witness that he is in error and to invite him in view of someone else’s testimony to modify his story or admit the possibility of error, a question in the form or to the effect of: “If X says the contrary, he is lying is he?” aims only at forcing the witness to withdraw or qualify his evidence, not because of any uncertainty that may exist in his mind, but improperly, in order to avoid embarrassment to himself by expressing an opinion or conclusion which according to the rules relating to opinion evidence is a matter for the tribunal and not for the witness.
[8]2nd Ed., by Mr Justice G. N. Williams, at 83.
Thus as the Queensland Court of Appeal explained in R. v. Foley[9]:
“The resort by counsel to questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses is to be deprecated. On a level of professional practice, it is regarded as ‘not a proper question’. The error, however, goes beyond one of professional practice; such questions are actually inadmissible. The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course is not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the judge or jury. It is also unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another. It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence. Such questions are inadmissible and we agree with Professor Harrison's view that they are improper. Regrettably the practice of asking such questions is by no means uncommon. It should cease.”
[9][2000] 1 Qd.R. 290 at 297, citations omitted.
Since Palmer was decided, there has also been a good deal more authority on the point in New South Wales. In R. v. Dennis[10] Spigelman, C.J. said:
“45.…with respect to the cross-examination of an accused on the subject of putting to an accused that other witnesses have lied, there is now a significant body of authority on this subject. Justice McInerney has made reference to the judgment of Rich NSW CCA 17 June 1998. The matter is reinforced in the case of Gilbert NSW CCA 10 December 1998. Both Rich and Gilbert were strong Crown cases, in each of which the trial miscarried by reason of the conduct of the Crown Prosecutor in following such cross-examination. Such a line of cross-examination should now be understood by Crown Prosecutors to be extremely dangerous, as the Court has previously indicated. In my opinion it is also usually puerile. However, it is the danger which is of concern - the danger the accused did not get a fair trial by reason of such conduct.”
[10] [1999] N.S.W.C.C.A. 23 at [45].
The matter was also dealt with by the New South Wales Court of Criminal Appeal in R. v. Baker[11]. Adams, J., who delivered the judgment of the court, undertook a detailed consideration of the authorities to which I have referred, concluding with what Spigelman, C.J. had said in R. v. Dennis, and continued:
“With respect, I consider that these remarks were entirely correct. The accused's opinion about whether evidence he or she has explicitly or implicitly contradicted is a lie is quite irrelevant. It inappropriately focuses attention on an immaterial and manufactured conflict which, as Hidden J observed in Rich (supra), is calculated to deflect the jury from the true issues in the case. Its usually dramatic character is likely to introduce an adversarial element between the accused on the one hand, and the Crown witnesses on the other, which may be highly prejudicial and difficult for the jury to ignore. This is especially true where the witness said to be lying is the alleged victim and emphatically so where the allegation is sexual in nature.”
[11][1999] N.S.W.C.C.A. 277 at [21].
More recently still the matter was dealt with by the Western Australian Court of Appeal in Middleton v. R.[12]:
[12][2000] W.A.S.C.A. 200 at [9]–[11], (2000) 114 A.Crim.R. 141 at 144 [9]–[11].
“9… It must first be said that the cross-examination by the Crown prosecutor was inappropriate. In R v Leak [1969] SASR 172 the Full Court of the Supreme Court of South Australia said (at 173):
‘In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true ...’
10This passage was specifically approved by McHugh J in Palmer v The Queen (1998) 193 CLR 1 (at 25). Although McHugh J was in dissent, the majority (Brennan CJ, Gaudron and Gummow JJ) stated strongly that it is impermissible to seek to elicit from an accused person in cross-examination a motive for a complainant to lie. Their Honours put it (at 7) as follows:
‘It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it.
And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.’
11Although a slightly different point, it is apparent from the decision of the majority that cross-examination of an accused person to elicit either a motive on the part of the complainant to lie or a statement that the complainant is lying is impermissible. It may be that in some cases an accused person will readily volunteer in chief that a complainant has lied or concocted a story, but that is a different thing.”
This court has also dealt with the question on a couple of occasions in recent times and on each occasion has stated that it is not permissible to ask an accused in cross examination whether he or she maintains that the Crown witnesses are lying.[13]
[13]See, for example, R. v. Hewitt [1998] 4 V.R. 862 at 868-9; R. v. Brown [2000] VSCA 102 at [18]; R. v. Cupid [2004] VSCA 183 at [28].
When counsel for the applicant in this case took objection to the questions asked by the prosecutor of the applicant as to whether he said the Crown witness were lying, the judge dismissed the objection with an allusion to The Lord Chancellor’s Song[14] and an assertion that the jury knew what was going on:
“COUNSEL:…can I just make this submission: to suggest that she’s lying is asking this witness to express an opinion and witnesses generally---
HIS HONOUR: The jury are aware of all that. I mean, you gentlemen and cross-examination – professional licence if carried too far, your chance of promotion might certainly mar, and I fancy that rule might apply to the Bar. That’s been a well-known extract. No, the jury understand what’s going on here‑“
[14]Song No. 12, from Iolanthe, by Gilbert and Sullivan.
When counsel for the applicant then sought to approach the matter on the basis that the question was too wide – in as much as the applicant had not disputed and did not dispute parts of JG’s evidence - the judge said that the only way to resolve the matter was to go to the evidence if counsel persisted; meaning, as it appears, that the judge intended to read out JG’s evidence in the presence of the jury:
“HIS HONOUR: No, I’m going to go to the evidence to resolve it. The point’s been taken and I think if [the Prosecutor] wishes to persist with the questioning, I think we’d better get her evidence in proper perspective.
COUNSEL: No, your Honour, I’m just taking objection to this last question. That her evidence is false. I mean, which part of her evidence? She gave evidence that contradicts [KD].
HIS HONOUR: The evidence - - - -
COUNSEL: The question is just too broad, in my submission, your Honour…
HIS HONOUR: If that’s the position, I think the only way to otherwise resolve it – I’ve got the evidence now. Do you want to persist?”
When counsel for the applicant then objected again on the ground that the accused was being asked to express an opinion, the judge responded that it was cross-examination and that the prosecutor was entitled to press a witness with questions of that kind:
“COUNSEL:Your Honour, that’s clearly asking the witness to express a matter of opinion.
HIS HONOUR: I think it’s - just as I gave you latitude in cross-examination, it is cross-examination and I think counsel is entitled to press a witness on a point like that. That‘s all [the prosecutor] is doing. Just saying, ‘Well now, she’s lying about that,’ and the witness is perfectly entitled to say, ‘Well look, I don’t know what’s going on in her mind. It’s just not true’.”
The cross-examination thus continued, culminating with the prosecutor putting to the applicant that the effect of the Michelle Buckley’s evidence was that the applicant had admitted sexual impropriety “with your female students”
In my opinion the judge erred both by allowing cross-examination as to whether the Crown witnesses were lying and by conveying to the jury that counsel’s objections were unfounded. Although no doubt wholly unintended, his Honour’s facetious aside about the Lord Chancellor’s song, the talk of need to go to the evidence if counsel persisted, and the implication that what was being done was perfectly fair in cross examination, were all calculated to mislead the jury to the view that the applicant was scared of proper cross examination about the honesty of the Crown’s witnesses and thus that he had something to hide. In effect the judge lent the authority of his office in a visible fashion to a process of cross-examination that was impermissible and likely to lead the jury astray.
Grounds 3 & 6: Evidence of admissions and directions on admissions
It is next contended that the judge erred in admitting evidence of admissions alleged to have been made by the applicant to his former wife, Michelle Buckley, or alternatively in failing to direct the jury that they could not place any reliance upon that evidence unless satisfied beyond reasonable doubt that the conversation occurred and that it was intended to be a true confession to the particular count under the jury’s consideration.
The evidence in question was given by Michelle Buckley as follows:
“PROSECUTOR: In September 2000, did the accused attend your Taekwondo school to grade your students? ---Yes, he did.
Were you aware at that stage that he’d been charged with the present offences? --- Yes, I was.
Did you have a conversation with him on that occasion?--- Grading was in the afternoon and we had completed grading and we were ready to go and Greg asked if he could have a word with me. We went into the gymnasium section of the centre that I had and we sat down to talk and he became very emotional and he was crying and trying to cling on to me and his concerns were that he was going to gaol that he wasn’t going to get to see our children any more, and that - yes, he was just crying and very upset about it and he was asking me to help him and I said to him at that point ‘By help you, if you mean that I will stand by you if you go and get help and then admit that you did it, then I’ll help you, I’ll stand by you’, I said, but – because I believed that he did it, I said that to him, I said ‘You did this and I know you did it and if you admit that you did it and get some help then I’ll stand by you. But if by help you mean lie then I won’t do it’, and pretty much after that he wiped his eyes, got up and left.
Did he say anything to you in response to what you’d just said to him? --- Not that I can recall, just – I think it was just he got up, got ready to go and left, it was within minutes.
You’d said that if he got help and admitted that he’d done it, you’d stand by him, did he say anything to you in relation to that? –-- He - that’s when he got upset even more and he said that he couldn’t help it and that when they hit on him he couldn’t say no. But he was also hesitant to go forward with anything because he was afraid he’d go to gaol and lose his children.”
The evidence was objected to on the basis that the words “when they hit on me” would be taken by the jury as an admission that the applicant had had illicit sexual relations with more than one under-age student. The prosecutor repudiated that suggestion, arguing that any prejudice involved in the idea that there were other female students was outweighed by the importance of the evidence as an admission of sexual activities with KD. The prosecutor also assured the judge that he would confine the evidence to discussions involving KD. The judge, however, ruled the evidence to be admissible on the basis that he considered that the words “they hit on me” might well be a reference only to KD and that he would do his best to confine the evidence to relations with KD. As his Honour expressed his reasons they were that:
“I think it’s manageable. It is … very prejudicial evidence, but it’s also very relevant, and it would be quite wrong to interfere with it to, as [the prosecutor] puts it, sanitise it, to say ‘when a girl hits on me, I can’t say no’; that would distort it. I’m not of the mind that that will immediately attract the jury to say that ‘there are others when they hit on me’; that can be argued as just a word, the word ‘they‘ is quite often used incorrectly. I see the concern that you have [counsel for the applicant] but in the circumstances I think there’s something in what [the prosecutor] says, and I’ll be doing my best to confine this to the one complainant. It’s important evidence, and if the jury accept it, it’s a very relevant admission against interest. I’ve no doubt the evidence is controversial, I hear what you say, but I think it’s not something that I can sanitise and I’ll be minded to do my best to confine [it], [so as to] make sure that this jury are concerned with this one complainant and one complainant only.”
As events turned out, neither the judge nor the prosecutor was able to confine the evidence to the applicant’s relations with KD and, as has been seen, the prosecutor finished up putting squarely to the applicant in cross-examination that what the applicant had said to Michelle Buckley was “an admission of guilt in relation to sexual impropriety with your female students”, and then asking: “Is she lying about it?”. The point was further amplified when counsel for the applicant objected on the basis that the applicant was being asked to express an opinion on another witness’s evidence and the judge dismissed the objection in the manner to which I have referred.
The judge’s decision to admit the evidence called for an exercise in discretion under s.398A of the Crimes Act 1958 as to whether in all the circumstances it was just to admit the evidence despite any prejudicial effect it may have.[15] Accordingly, unless it is shown that the judge erred in principle by failing to have regard to relevant considerations or by taking into account irrelevant considerations or by reaching a decision that simply was not open in the circumstances, it is not for this court to say what it might have done in performing the role of the judge. The applicant, however, advances six submissions in support of its contention that the judge was in error in the way in which he approached the matter and that the decision was so unreasonable that it was wrong. A number of those appear to me to be well founded.
[15]R. v. Best [1998] 4 V.R. 603 at 612.
The first submission is that the judge erred in his conclusion that the jury would not necessarily construe the reference to “when they hit on me” as an admission that there had been more than one girl involved. I agree. In the context in which the words were alleged to have been spoken it can hardly be doubted that they conveyed the meaning that the applicant had succumbed to the temptation of engaging in sexual activities with more than one of his female students. At the least it is likely that the jury would so construe the words. It follows in my opinion that the judge approached the exercise of his discretion upon a mistaken view of the probable effect of the evidence on the minds of the jury, and in that sense his Honour took account of an impermissible consideration or alternatively failed to take account of a relevant consideration. That is not necessarily to say that the prejudice caused by the admission of the evidence outweighed its probative value, but it does mean that the matter needs to be reviewed in light of the prejudice that it was truly likely to cause. [16]
[16]Rocklea Spinning Mils v Consolidated Trading Corp. [1995] 2 V.R. 181 (VICAD) at 184, per Tadgell, J.
The second submission is that the judge erred in the application of s.398A by substituting for the test prescribed by the statute[17] one which his Honour described in terms of being unable to “see any basis on balance” for exclusion of the evidence. I do not think that submission to be persuasive. The judge is a very experienced criminal trial judge. The probability that he overlooked the provisions of s.398A is negligible. The fact that his Honour did not mention the section in terms is unsurprising. And the fact that he spoke of its requirements in terms of balance is really to be expected. I take his Honour’s words to be a compendious and apposite method of describing the statutory test.
[17]Section 398A provides as follows:
“398A. Admissibility of propensity evidence
(1)This section applies to proceedings for an indictable or summary offence.
(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).
(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.
(5) This section has effect despite any rule of law to the contrary.”
The third submission is that in as much as the alleged admission ex facie related to more than one female student and was said to have been uttered in response to an allegation concerning more than one female student and more than one occasion, one could not be confident that the alleged admission related to any and if so which of the offences with which the applicant stood charged.
The judge directed the jury as follows:
“In this case there is evidence which, of course, is controversial, that was given by the accused’s former wife, Michelle Buckley. On this question of corroboration she said that in September 2000 after a Taekwondo class the accused asked her if she could have a word with me.
At p.322 she said, ‘Greg asked me if he could have a word with me. We went into the gymnasium section of the centre and we sat down to talk and he became very emotional and he was crying and trying to cling on to me and his concerns were that he was going to gaol, that he wasn’t going to get to see our children any more and that yes, he was just crying and very upset about it, and he was asking me to help him, and I said to him at that point, ‘By help you, if you mean that I will stand by you if you go and get help and then admit that you did it, then I’ll help you. I’ll stand by you’. I said - but because I believed that he did it, I said that to him, I said, ‘you did this and I know you did it and if – and if you admit that you did it and get some help then I’ll stand by you, but. If by help you mean lie, then I won’t do it,’ and pretty much after that he wiped his eyes, got up and left, and that’s when he got upset even more and he said that he couldn’t help it, and when they hit on him he - he couldn’t say, no, but he was also hesitant to go forward with anything because he was afraid to go to gaol and lose his children.
The Crown contends that you should accept that this conversation took place and you should find that the conversation constitutes an admission of those allegations of [KD] that were put to him by the police a few weeks earlier. The Crown contends that this is independent evidence supporting the evidence of the complainant.
I direct you, as a matter of law, that that is evidence, if you accept it, which is capable of amounting to corroboration of the complainant’s evidence. It is for you, the jury, to say whether you accept it and whether you regard it as being corroborative in fact. So you can see in this area we have different roles. My task is to determine whether it is open for you to accept the evidence and find that it is corroborative. It is open to you to find it but it is your task to determine firstly whether you in fact accept Michelle Buckley’s evidence that the accused had this conversation with her and made these admissions and, secondly, whether you hold it corroborative of the complainant’s evidence. I repeat, you have heard the evidence and you have heard the criticism of it and I emphasise it is not for me to make any judgment about it.
“That is your task. That is one circumstance that you are bound to consider in evaluating the complainant’s evidence.”
As can be seen, the judge did not in those directions expressly caution the jury that they needed to be satisfied that the words which the applicant was alleged to have used were intended as an admission that he had committed the acts alleged against KD. Given that the alleged admission was a major plank in the Crown case and that there was room for different views about the exact effect of what the applicant was alleged to have said, I consider that it was necessary for the judge to give the jury a clear Burns direction.[18]
[18]R. v. Burns (1975) 132 C.L.R. 258 at 261.
The fourth submission is that such problems as may have been implicit in the reference to a plurality of female students were made explicit when the prosecutor put to the applicant that the effect of the alleged admission was “an admission of guilt in relation to sexual impropriety with your female students”. So much is obvious.
The fifth submission is that Michelle Buckley ought never to have been allowed to express the opinion that she believed that the applicant had done it. Plainly that is so, even if it is to be doubted that Michelle Buckley’s expression of opinion was any more prejudicial to the applicant than was her evidence, which was admissible, that she said to him that she believed that he did it. The expression of opinion as such ought to have been excluded and I add that a good deal more of what the witness was allowed to express as her account of the facts, particularly after she was cross-questioned by the prosecutor following her initial failure to say unprompted anything about the admission, was as much constituted of expressions of belief and opinion as by any recollection of events which may have occurred. In my view that too should not have been allowed to occur.
The sixth and final submission on the point is that, given the nature of the problems created by the admission of the evidence, it was most unlikely that any direction about propensity evidence and the limited use which may be made of it would sufficiently alleviate the difficulties. I am not convinced by that argument but the fact is that the judge did not give such a direction. Perhaps his Honour was hesitant to make such a remark lest it emphasise in the mind of the jury that the applicant had committed other offences similar to those which were charged. Presumably it is for that reason too that counsel for the applicant did not take any exception to that part of the judge’s charge. But whatever may have been the motivations of those involved, the result was that the point remained there for the jury to do with as they chose, without any guidance. Hence in my opinion the danger that they may have misused the alleged admission about the other girls is certainly significant.
Ground 7: Complainant’s evidence
The judge gave a considered Longman warning in which his Honour drew to the jury’s attention a number of factors including the age of the complainant at the time of the alleged offences, the delay in complaining, the potential for error and the problems which the delay created for the defence. His Honour then continued:
“The existence of those matters is such as to require the trial judge to do what I have just done, to give judicial authority to the circumstances that I related to that must be earnestly considered. These matters mean that to fulfil your duty of fact finding you must be fully aware that you should not proceed to a [conviction] on the evidence of the complainant alone – and I repeat there is the corroboration argument - [19] unless having scrutinised that evidence with great care, you are satisfied of its truth and accuracy. If you are, you are bound to convict, but, as I say, whilst fact finding is properly a jury function and you are entitled to act [on] or disregard any comments on the facts made by counsel or by me, it would be wrong for you, as jury in a case such as this, to ignore what I have just said by way of warning in this case, which is a trial where events are alleged to have occurred some time past. (Emphasis added).
However, having noted the comments and warnings, it is open to you as a jury to convict after careful scrutiny of all of the evidence bearing in mind the difficulties for the defence to which I have adverted, and bearing in mind the onus of proof that I have spoken about.”
[19]Which was a reference to the directions earlier given about the alleged admission to Michelle Buckley.
The applicant’s seventh ground of appeal is that the judge went too far in directing the jury that, if they were satisfied of the truth and accuracy of KD’s evidence, they were bound to convict. On balance I am inclined to disagree. No doubt it would have been preferable[20] to tell the jury that despite the danger of acting upon the uncorroborated evidence of KD, if after having examined it very closely they were satisfied beyond reasonable doubt that it was true and accurate, it would be open to them to convict on the basis of her evidence. But in substance, in the context in which the judge spoke the words he used, they were in my opinion little different to an observation such as that “your proper verdict would be to convict”, and in my view that is the way in which the jury are likely to have understood them. The matter in issue between the Crown and the applicant was whether the applicant did the acts alleged. All other possible defences were conceded not to apply. KD’s evidence was that the applicant did do each of the acts alleged. Consequently, if the jury were satisfied to the requisite standard of the truth and accuracy of KD’s evidence, it would follow as a matter of logic that they were satisfied to the requisite standard that the applicant had committed the acts alleged.
[20]cf. R. v. Camilleri (2001) 119 A.Crim.R. 106 at 140 [107], per Ormiston, J.A.
The applicant criticises this part of the judge’s charge as inviting the jury to make the very sort of mistake that Liberato[21] dictates that a judge should warn a jury against making. But I think that the answer to that contention is that the judge did give such a warning. And while it is said that his Honour later again spoke in terms which suggested that the case might be decided on the basis of which of the applicant and KD were to be believed, read in context and as a whole I do not think that that is the effect of what was said. Overall I consider that the judge made it plain that the jury had to be satisfied on the basis of all of the evidence beyond reasonable doubt before they could convict.
[21]Liberato v. The Queen (1985) 159 C.L.R. 507 at 515.
The applicant further submits that the judge was in error in instructing the jury that Michelle Buckley’s evidence of the admission said to have been made by the applicant was capable of corroborating KD’s testimony. Again I disagree. In a case involving illicit sexual intercourse or other sexual impropriety it is sufficient for evidence to constitute corroboration of a complainant’s testimony that the evidence should strengthen the complainant’s testimony as to a fact on which proof of guilt depends.[22] If properly instructed, I think that it was open to the jury to take the view that the alleged admission went to all of the offences with KD with which the applicant was charged. The difficulty that I perceive in the alleged confession is not so much that it left the jury to guess as to which of the alleged offences to which it related but that it appeared to relate to all of the offences alleged and more.
[22]BRS v. The Queen (1997) 191 C.L.R. 275 at 284-5.
The applicant’s final argument in support of Ground 7 is that the judge failed to give directions as to what was required before the jury could use that evidence. In substance that repeats the argument to which I have already referred in dealing with grounds 3 and 6 and I say no more about it.
Ground 1: Evidence of JG
The applicant’s ground 1 of appeal is that the judge erred in admitting the evidence of JG concerning what the applicant had said to her of his sexual activities with LZ and as to showing JG his scrotum. It was submitted that in as much as the judge had severed the presentment, it cannot be that the evidence was relevant to matters in issue, and hence it should not have been admitted. Alternatively, it was said that if the evidence had any relevance at all it went only to propensity and on that basis that it should have been excluded.
Those contentions find a degree of support in a passing observation made in R. v. TJB[23] that the question of severance under s.372 of the Crimes Act 1958 arises in practice only if evidence of the alleged offence against one victim is either not relied on by the Crown in relation to the alleged offence against the other victim or is ruled to be inadmissible. But as is shown by the subsequent decision of this court in R v KRA[24], the result of the enactment of ss.372(3AA) and (3AB) is that in some cases there may be good reason for a joint trial whether or not there is “cross-admissibility” of evidence of several complainants.[25] The amendments to s.372 effected by the enactment of ss.(3AA) and (3AB) were to ensure that trial judges carefully consider whether severance is necessary even where the evidence of complainants is not “cross-admissible”.[26] Furthermore, and even allowing that the cross-admissibility of evidence of complainants will in most cases remain a powerful (although not necessarily dominant) factor influencing the discretion under s.372, in my opinion JG’s evidence was admissible as proof of the matters in issue, and thus it appears to me that the presentment should not have been severed. Indeed, if I may say so, much of the complexity and most of the problems which surrounded the way in which JG’s evidence was dealt with at trial were the direct result of severing the presentment when it should not have been severed. For reasons which I shall endeavour now to express, I consider that JG’s evidence was admissible as similar fact evidence on the charges in respect of KD and that KD’s evidence was admissible as similar fact evidence on the charges in respect of JG and, further, that if the presentment had not been severed it would have been a relatively straight forward exercise for the judge to instruct the jury as to how they might properly use each woman’s evidence as going directly to proof of the offences alleged in respect of herself and also as similar fact evidence going to proof of the offences alleged in respect of the other woman.
[23][1998] 4 V.R. 621 at 631, per Callaway, J.A.
[24][1999] 2 V.R. 708.
[25][1999] 2 V.R. at 713 [16]-[21].
[26]R v Papamitrou (2004) 7 V.R. 375 at 377 [2]-[3] and 387 [26]-[27].
When objection was first taken to the admission of JG’s evidence the judge seems to have thought that it was admissible as similar fact evidence in proof of the offences in respect of KD. For in his ruling that the evidence might be given his Honour said that:
“[W]here the allegation is a 33 or 34 year old male is conducting a sexual relationship with a 15 year old girl, the evidence that he’d showed her his inflamed scrotum and a vasectomy nick is, I think, evidence which goes to the issue and, if you like, evidence of the balaclava goes to the issue. That being the case, is there other evidence which goes to this issue not simply to bolster the credit of the complainant, although in the process it would definitely bolster the credit? That’s what it’s there for, to make her evidence more acceptable to the jury, more probable of acceptance.
You have another witness who is prepared to say the scrotum incident occurred and I think [the prosecutor] is right, I can take judicial notice in the context of this case that it would be the one vasectomy and the one incident of the swollen testicles. So I think he has evidence independent of the complainant which goes to the issue and I repeat, my conclusion is based on the correctness of my view that that evidence goes to the issue. You’re stuck with that. I’m firmly convinced that it goes to the issue.”
That suggests to me that his Honour considered that JG’s evidence was admissible to establish a modus operandi of the applicant to induce his female students to engage in sexual relations or at least a particular kind of sexual activity that was the subject of the alleged offences. In other words his Honour conceived of the evidence as similar fact evidence going directly to proof of the alleged offences and thus corroborating KD’s evidence as to the alleged offences.
It is apparent, however, that the judge later changed his mind as to the way in which the evidence was to be used, for much later in the trial in the course of his charge to the jury, his Honour said:
“…There has also been evidence led, and this has been the subject of comment and I will refer to it again. I can refer to it as the herpes incident, the vasectomy incident, and the woman [LZ]…who was having an association with the accused man.
Now those three incidents have been the subject of evidence from certainly [KD], [JG] and Michelle Buckley. That evidence [scil. the evidence from KD] is led to show that - if you accept that it occurred - to show that there was some inappropriate sexual discussion between the accused and [KD]. The evidence from [JG] about that and the evidence from Buckley about that is led as a circumstance to bolster the credit of the complainant on these issues, and it is a matter for you whether you accept that evidence. That is your task. (My emphasis).
But the only use you can make of that evidence is to say, if you accept it, the Crown argument is that is an indication that there has been some inappropriate sexual discussion with the accused, but you must not jump from that conclusion and then say, oh, he has done it. It is only for that limited purpose. It is to bolster her credit, to say, well, now there has been inappropriate sexual discussion.” (My emphasis).
As there appears, his Honour considered that JG’s evidence about the applicant showing her his scrotum and bragging about his experiences with LZ was admissible to corroborate or confirm KD’s testimony about an “inappropriate sexual discussion”; and in the context in which those words were used I take his Honour to have meant that the evidence of JG was admissible to corroborate KD’s evidence as to uncharged acts going to relationship or context[27] as opposed to similar fact evidence going directly to proof of the alleged offences and thus corroborating KD’s evidence as to the alleged offences.
[27]R. v. Vonarx [1999] 3 V.R. 618 at 622 [13].
The judge’s apparent change of mind is consistent with the fact that the Crown at trial disavowed any suggestion that it relied upon JG’s evidence as similar fact evidence of modus operandi and put the evidence forward solely on the basis that it went to confirm or support the relationship or context evidence given by KD. But as at present advised it appears to me that the way in which the judge was first inclined to approach the matter was correct and that the way in which the Crown persuaded his Honour to treat it is questionable.
Under s.398A of the Crimes Act 1958 propensity evidence relevant to facts in issue is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the accused. As Callaway, J.A. explained in Best[28], the enactment of s.398A abolished the rule laid down in Pfennig[29] that propensity evidence is not admissible unless there is no rational view of the evidence consistent with the innocence of the accused in the context of the prosecution case[30]; and under the section, as the majority in Hoch[31] held the common law to be, the possibility that such evidence might be rejected as being of a quality reasonably explicable on the basis of concoction is a matter for the jury with the aid of appropriate directions.
[28]R. v. Best [1998] 4 V.R. 603 at 616, per Callaway, J.A.
[29]Pfennig v. The Queen (1995) 182 C.L.R. 461.
[30](1995) 182 C.L.R. at 482-3 cf. KRM v. The Queen (2001) 206 C.L.R. 221 at 228 [21] – [31], per McHugh, J. and at 264 [134], per Hayne, J.
[31]Hoch v. The Queen (1988) 165 C.L.R. 292 at 296-7; cf. BRS v. The Queen (1997) 191 C.L.R. 275 at 300, per Gaudron, J.
Clearly enough the evidence of JG as to the applicant showing her his scrotum and bragging about his sexual experiences with LZ did not go directly to a fact in issue. But it was evidence of the applicant’s propensity to show his scrotum in order to demonstrate that he had been sterilised and to brag of his sexual experiences with LZ; and propensity evidence like that, which establishes a remarkable modus operandi, is capable of corroborating or confirming other evidence about a matter in issue and it may be admitted on that basis. So it was in BRS[32], which also involved sexual offences against under-age adolescents in the care of an accused, where evidence of what the accused had said and done with one of the victims was said to be admissible to corroborate or confirm the evidence of another. As Brennan, C.J. put it:
“As this Court said in Doney v The Queen:
The essence of corroborative evidence is that it 'confirms', 'supports' or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probable': R v Kilbourne.
…where a sexual offence against a minor is charged, the minor's evidence is not corroborated by evidence that shows merely that, on one other occasion, an offence of the same kind was committed against another minor. But if the manner in which the offences were committed is strikingly similar, the evidence of the other offence may well be admissible as corroboration…
“Here, the similarity of the circumstances attendant on his encouragement of W to masturbate with the circumstances of his encouragement to H to do so is so striking that W's evidence was strongly corroborative of H's evidence in that particular.”
[32]BRS v. The Queen (1997) 191 C.L.R. 275 at 277.
The facts of this case are significantly different to those of BRS, for amongst other reasons this case involves heterosexual activity (whereas BRS was to do with homosexual offences) and with victims of a different age group. But at the level of principle they are comparable and there is in my view a striking similarity between the extraordinary behaviour of the applicant in showing his scrotum to JG and bragging about his sexual experiences with LZ in order to encourage JG to participate in sexual relations with him, and his alleged conduct in doing and saying virtually the same things with and to KD in order to encourage her to participate in sexual relations with him.
Of course in order that evidence be corroborative it must confirm the evidence to be corroborated in a particular material to the commission of the offence charged and, although JG's evidence was evidence of facts similar to some of the facts deposed by KD, it was not evidence of facts constituting an offence similar to the offences charged. But as I have already noticed, corroborative evidence for this purpose need not be direct proof of the actus reus[33]. It is sufficient that it confirm evidence that is material to the facts in issue. And in this case, the similarity of the circumstances attendant on the applicant’s alleged encouragement of JG to participate in sexual relations with the applicant and the alleged circumstances of his encouragement of KD to do the same is in my opinion so striking as to mean that JG's evidence was capable of being strongly corroborative of KD's evidence in that particular. [34]
[33]BRS v. The Queen (1997) 191 C.L.R. 275 at 283-4.
[34]R v. Chitson [1909] 2 K.B. 945 at 947; Burns v. The Queen (1975) 132 C.L.R. at 268; Cross on Evidence, at [21.055].
That does not necessarily exclude the possibility that JG’s evidence would also be admissible in the way in which the Crown contended at trial and the judge seemed to accept that it was admissible, as corroboration by striking similarity of KD’s testimony as to the applicant’s uncharged acts for the purpose of giving contextual meaning to the offences alleged in the presentment. But we have not heard full argument on that point and accordingly I express no concluded view about it. I do note, however, that in the circumstances of this case, if the evidence were admissible as similar fact evidence of guilt in the way in which I conceive that it was admissible, and thus as corroborative of KD’s testimony as to the alleged offences, it would add nothing to its admissibility or weight to conceive of it as also being admissible as corroborative of KD’s testimony as to uncharged acts going to relationship or context; and in the circumstances of this case, logically the evidence would not have the effect of confirming KD’s testimony about uncharged acts going to relationship or context unless it did establish by striking similarity a modus operandi that was directly indicative of guilt and thereby confirmed her testimony as to the offences alleged.
Finally, on this aspect of the matter, I add that in addition to the evidence given by JG about the applicant showing her his scrotum and bragging about his experiences with LZ, Michelle Buckley was also permitted to give evidence that the applicant had showed her his scrotum shortly after he was sterilised by vasectomy and that he had suffered from genital herpes from time to time. In my view that evidence was irrelevant and it should not have been admitted.
Ground 2: Directions as to the use of JG’s evidence
The applicant next complains that the judge erred in the directions given to the jury about the use which they might make of JG’s evidence. I have already set out the direction which the judge gave on that point. In my opinion it was inadequate.
In BRS McHugh, J. explained the sort of warning that was required in a case of this kind as follows:
“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.”[35]
[35]BRS v. The Queen (1997) 191 C.L.R. 275 at 305; see also Gipp v. The Queen (1998) 194 C.L.R. 105 at 132 [77], per McHugh and Hayne, JJ.
Consistently with that imperative, the judge told the jury that they could only use the evidence as something which was capable of bolstering the evidence given by KD as to what the applicant had said and done with KD, and his Honour told the jury in express terms that they were not to reason from that evidence to a conclusion of guilt. That much was unexceptionable. But the judge did not explain to the jury the need for them to be satisfied that the evidence was not the result of collaboration, between KD and JG, or unconscious influence or innocent infection;[36] and his Honour did not explain to the jury that if they were satisfied of the truth of the evidence that the way in which they were to use it was by asking themselves whether the similarities[37] between what the applicant was alleged to have said and done to and with JG and KD were so much more than one might expect to occur by mere coincidence as to permit the drawing of the inference that the accused engaged in a repeated course of conduct and so did do with KD what she deposed to.
[36]R v Glennon [2001] VSCA 17 at [151]-[158], per Callaway, J.A.
[37]cf. the formulation: “cause common to both parties” in R. v. Glennon, ibid at [153].
Nor did the judge give to the jury the standard directions or indeed any directions about the process of drawing inferences, and while it has been laid down authoritatively that it is not always necessary for a trial judge to give directions of that kind[38], it appears to me that this was a case which certainly warranted such a direction not only in respect of the reliance which was placed upon similar fact evidence but also more generally in respect of the large amount of circumstantial evidence upon which the Crown case was based.[39]
[38]McGreevy v. Director of Public Prosecutions [1973] 1 W.L.R. 276 at 285.D; Grant v. The Queen (1975) 11 A.L.R. 503 at 504, per Barwick, C.J.
[39]cf. Shepherd v. The Queen (1990) 170 C.L.R. 574 at 578.
Ground 8: Applicant’s evidence
In referring to the fact that the applicant had chosen to give evidence, the judge told the jury that:
“In this case the accused has given evidence on oath, and you have [been] properly told that the accused does not have to give evidence on oath; [and] that the dock can be a pretty safe place. You have been told that if an accused person chooses not to give evidence, no-one can make a comment about it. I cannot make a comment about it. Now, he rejected that choice and chose to go into the witness-box, give evidence, and subject himself to cross-examination, and [counsel for the applicant] anticipated the comments that judges invariably make. What more can an innocent man do than get into the witness-box and pledge his oath to his account? On the other hand, there is an argument [to the effect that], well, you might as well get in there and brazen it out; you would be expected to give evidence and give an account about it. Those things sort of balance themselves out.
Now you have got to understand that he had no obligation to do it. He submitted himself to cross-examination, and as the accused he is obviously a witness who is under more strain that anybody else, and you have got to take that into account when you assess his evidence and the way he gave it. But at the end of the day, that evidence takes its place amongst the evidence in the trial; evidence that you have got to use for the purposes of assessing whether on the particular count that you are considering, the Crown have satisfied you beyond reasonable doubt.”
The applicant’s eighth ground of appeal concerns the words:
“On the other hand, there is an argument [to the effect that], well, you might as well get in there and brazen it out; you would be expected to give evidence and give an account of it. Those things sort of balance themselves out.”
It is said that they are unfairly disparaging of the applicant and calculated to result in the jury giving less weight to his testimony than properly they should have.
I do not think that there is anything in that complaint. Read in context, the words used are just another and in my view just as acceptable way of expressing the standard direction: that while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross examination than by dodging it.
It was also submitted on behalf of the applicant that the judge erred in failing to direct the jury as to the use which they were to make of evidence of the good character of the applicant. I regard that complaint as equally unfounded. The judge told the jury that:
“…He has put his character into evidence and the law says that he is entitled to a presumption, that a person of good character is presumed in law incapable of committing an offence that has been alleged against him but that presumption lasts only so long if the evidence establishes his guilt. It is a presumption, it is a rebuttable presumption, but he is entitled to have you take that into consideration when assessing his evidence. But a presumption cannot, as it were, take the place of evidence which you find acceptable, but he is entitled to that presumption of evidence.”
Admittedly the direction as transcribed appears a little truncated and to conflate into one the relevance of good character to the probability that the offence was committed and the relevance of good character as to the credibility of the accused as a witness. But I doubt the accuracy of the transcript, because it is of poor quality at a number of points, and in any event I consider that taken as a whole in the context of what the judge had already said to the jury about the assessment of the applicant’s evidence, the jury would not have been left in any doubt as to the utility of the good character evidence. Although one might have expected to see something a little more explicit on the effect of good character on credibility, particularly in a case where the accused gave evidence and the credibility of his denials was very much in issue, it is not a universal rule that a judge must direct a jury as to how they might use evidence of good character. Left without guidance they would ordinarily be inclined to use good character evidence both as to credibility and as to guilt.[40]
[40]See Cross, Australian Ed. at [19-135] which refers to R. v. Schmahl [1965] V.R. 745 at 750; Simic v. The Queen (1980) 144 C.L.R. 319 at 333; Melbourne v. The Queen (1999) 198 C.L.R. 1 at 14 [30], 29 [78] and [79], 57 [157], 68 [197] cf. at 44 [112],per Kirby, J.
Grounds 10 & 13: Notice of suppression order and separation of jury
The tenth ground of appeal is that jurors were exposed to a suppression order posted outside the door of the court which in terms prohibited publication of details of the trial “until the verdict in proceedings in Presentment Number P 01461581.1 & P 01461581.2; CR-02-00855”. The fear expressed is that some of the jurors may have gleaned from the notice that the applicant was later to face a separate trial or trials in relation to another presentment and thus that their view of him may have been prejudiced. I consider that the prospects of that having occurred are so slight that they may be disregarded. Even assuming that one or more of the jurors saw the notice and would reason from its contents that the applicant was later to stand trial in another proceeding, which of itself I regard as unlikely, there is nothing to indicate the nature of those other proceedings or even necessarily that they involved anything discreditable concerning the applicant. Furthermore, his Honour told the jury in unexceptionable terms that the case was to be decided by them upon their appraisal of the evidence and the witnesses.
The thirteenth ground of appeal is related to the tenth. The jury retired to consider their verdict on Friday 16 May 2003 at 9.51 a.m. At that stage they had not been sworn pursuant to s.50(1)(a) of the Juries Act 2000 and they were not so sworn until shortly before they were allowed to leave for the weekend at 12.12 p.m. It is said however that during deliberations three people witnessed small groups of jurors separate from other jurors and, although it is not clear whether that occurred before or after they were sworn at 12.12 p.m., it ought be concluded that it happened before that time and thus that the jury separated contrary to s.50 of the Juries Act. The short answer to that contention in my opinion is it may be presumed that what was done was done in accordance with law[41] and in the absence of any evidence to the contrary I see no reason to depart from that presumption.
[41]Omnia praesumuntur rite esse acta: Dawson v Westpac Banking Corporation (1991) 104 A.L.R. 295 at 304-5; (1991) 66 ALJR 94; Cross, Australian Edition at [1175].
Ground 11: Aggregate of errors
The applicant’s final contention was that if none of the grounds already mentioned is sufficient in itself to amount to a miscarriage of justice, taken in combination they do. For the reasons already expressed, I consider that the problems discussed under each of the headings of Grounds 2, 3, 6 and 12 are sufficient in themselves to have constituted a miscarriage of justice. But I agree that if that were not so they would lead in aggregate to the conclusion that the applicant did not have a fair and proper trial.[42]
[42]R. v. Kotzmann [1999] 2 V.R. 123 at 157 [114] and [115] , per Batt, J.A.
Conclusion
For the reasons given I would allow the application for leave to appeal and the appeal and I would quash the conviction and order a new trial to be had.
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