R v Davis
[2007] VSCA 276
•27 November 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 320 of 2006 |
| v | |
| EDWARD DAVIS | |
| THE QUEEN | No. 32 of 2006 |
| v | |
| EDWARD DAVIS |
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JUDGES: | BUCHANAN JA and COLDREY and CURTAIN AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 November 2007 | |
DATE OF JUDGMENT: | 27 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 276 | |
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Criminal law – Sexual offences – Complaint – Directions to jury sufficient – Cross-examination of accused as to whether Crown witnesses lied impermissible. Appeal allowed.
Criminal law – Attempt to pervert the course of justice – Evidence led by playing video tapes – Evidence Act 1958 (No 6246), s 37B. Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr T Kassimatis | Victoria Legal Aid |
BUCHANAN JA:
The applicant was tried in the County Court and found guilty on 20 counts of committing an indecent act with or in the presence of a child under the age of 16 years and two counts of taking part in an act of sexual penetration with a child under the age of 16 years. The applicant was acquitted on five counts of committing an indecent act with or in the presence of a child under the age of 16 years. After a plea, a total effective sentence of seven years' imprisonment, with a minimum term of four years and six months' imprisonment, was imposed upon the applicant.
The applicant seeks leave to appeal against the convictions and the sentence.
The offences were alleged to have occurred between 2002 and 2004, when the applicant was between the ages of 30 and 32 years and the complainants, four boys, were aged between nine and fourteen years.
The complainants were the principal Crown witnesses. DP, who was then aged eleven years, said that he met the applicant in about June 2002 at McDonald's restaurant in Flemington. The applicant and DP struck up an acquaintance and would talk together and smoke cigarettes. On one occasion the applicant took DP to the applicant's residence situated above a shop a short distance from McDonald's. The applicant asked DP if he wanted to earn money by giving the applicant a full body massage for between $20 and $50. DP agreed, and went upstairs with the applicant to a bedroom, where they both took off their clothes and got on to the bed. DP massaged the upper shoulders, back and legs of the applicant for some 20 minutes. The applicant offered DP $50 to masturbate him. DP did not reply. The applicant asked DP if he could massage him. DP refused. The applicant paid DP $30. DP said that he went to the applicant's residence about ten times after that, and on each occasion the applicant gave him a full body massage and paid him. On the last occasion, as DP massaged the applicant, the applicant offered him $200 to masturbate the applicant. DP agreed. He saw the applicant put $200 in an envelope. DP masturbated the applicant for about half an hour. The applicant then gave him the envelope. DP left and later opened the envelope and found it contained only torn-up newspaper. He did not see the applicant again.
The second complainant, TB, said that he met the applicant in an amusement parlour in the city. TB was then 14 years old. He told the applicant that he had run away from a residential unit where he had been placed by the Department of Human Services, and said he was going to sleep in a squat. The applicant took TB to McDonald's in Footscray and bought him a meal. At that time, the applicant was camping in the Footscray wetlands. TB accompanied the applicant to his camping place and was given a blanket. The next night, the applicant played a game of cards with TB. The loser of each hand was required to take off a piece of clothing. By the end of the game, both the applicant and TB were naked and the applicant asked TB to massage him, saying that he would pay him according to how long and how good the massage was. TB massaged the applicant on his back, legs and stomach and masturbated him. TB said that he went to the camping site with the applicant on more than a dozen occasions, where the same acts of massage and masturbation took place. TB said that after the first occasion the applicant gave him $700.
TB said in evidence that, about three-and-a-half months after first meeting the applicant, he met him at a Footscray railway station. The applicant took him to premises in West Footscray which the applicant was renting with others. The applicant introduced TB to his housemates and then took TB to his bedroom, where he barricaded the door with bricks. The applicant and TB played strip poker and, once they were naked, TB massaged and masturbated the applicant. TB said that he visited the applicant at the premises about twice a week for the following one-and-a-half months, and on six of those occasions sexual activity of the kind I have described took place. The applicant paid TB money on each occasion.
On the third occasion on which he visited the applicant at the premises in West Footscray, TB took with him the third complainant, AS, a boy aged 13 years. The applicant produced marijuana, which both TB and AS smoked. The trio then played a game which led to them disrobing. TB massaged the applicant, and AS massaged and masturbated him.
After the applicant left the shared premises, he moved to rented premises in Milton Street, Footscray, where he lived alone. TB and AS visited the applicant at Milton Street, and gave evidence that masturbation and massage took place there. On one occasion, AS said that he met the applicant at a Footscray railway station. The applicant offered him $50 to come back to his house for a massage. AS agreed, and participated in a game of dice, where the loser of each round was required to take off a piece of clothing. After the game, when the applicant and AS were naked, he massaged the applicant for half an hour, and then the applicant massaged him. The applicant told AS that he would pay him extra if he sucked his penis and made him ejaculate. AS said that the applicant placed a condom over his penis and AS proceeded to suck it and made the applicant ejaculate.
The fourth complainant, NC, then aged nine years, accompanied AS to Milton Street. AS and the applicant played a strip game with dice. The applicant was reduced to a T-shirt and singlet. AS massaged him, and the applicant massaged AS. AS then masturbated the applicant. The applicant told AS to fetch a disposable rubber glove, place it over his penis and then suck the applicant's penis. AS did so. These acts took place in the presence of NC.
The applicant gave evidence at his trial. He denied any sexual misconduct with any complainant. He denied knowing AS or NC and said that he did not remember DP. He admitted that he knew TB, but said he was a street kid whom the applicant tried to help.
The principal grounds of the application for leave to appeal against conviction concern the circumstances in which the complainants complained of the applicant's conduct and cross-examination of the applicant by the prosecutor as to whether he alleged the complainants had lied.
The first ground of the application for leave to appeal against conviction is as follows:
The trial miscarried by reason of the learned trial judge's having not, at all or properly, directed the jury on complaint evidence and delay. In particular the learned judge failed, inter alia, to direct that:
(a)leaving aside the issues relating to any underlying unity, evidence of complaint is admitted only for their consideration to throw light on the credibility of each complainant.
(b)it does not provide evidence of the facts stated in the complaint or to the truth thereof;
(c)the jury must consider whether and, if so how, the complaint and any delay in its having been made might go to show how the complainant acted in the manner which might be expected of him if he had been subjected to the acts of the nature alleged;
(d)any delay, if accepted by the jury, could be taken into account in assessing the credibility of the complainants and to cast doubt upon the reliability of the evidence given by them; and
(e)the denials made to police by complainants DP, TB and AS during their respective periods of delay could likewise be taken into account when assessing their credibility.
At trial, defence counsel placed considerable emphasis in cross-examination and in his address to the jury on aspects of complaint. It was said that the complainants' credit was affected by reason of the delay between the incidents alleged by each of the complainants and the dates upon which each of them finally made their complaints; the reluctance of each complainant during the period of investigation to complain; the pressure that had been brought to bear on them by the informant, Detective Sergeant Norris, to complain; and the repeated denials by DP, TB and AS that anything untoward had occurred between them and the applicant.
Counsel for the applicant requested the trial judge to give a Longman warning. In R v Longman[1], Brennan, Dawson and Toohey JJ said:
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.
[1](1989) 168 CLR 79.
The trial judge refused to give a Longman warning. In the course of discussions between counsel for the applicant and the trial judge, it became apparent that counsel was not concerned with delay simpliciter, but rather with delay in the context of the reluctance of the complainants to make any complaint, their initial denials to the police of any wrongdoing by the applicant, and the pressure to complain placed upon them by the informant. Counsel for the applicant in this Court similarly submitted that it was incumbent upon the trial judge to warn the jury that, by reason of the delay, the repeated denials by the complainants of any sexual impropriety between them and the applicant, and the manner in which the informant conducted the investigation, the jury were bound to scrutinise with care the complaints made by each complainant and their denials under oath that they had colluded or indirectly been the subject of contamination.
In my opinion the trial judge was not required to give a Longman warning. It was not suggested that the relatively short delay, of no more than between one year and two years, in finally making complaint caused any forensic disadvantage to the applicant. Nor was it said that the delay could have had any effect on the complainants' memory. The evidence of complaint, in my view, did not warrant any direction that the jury should subject the complainants' evidence to any special scrutiny. The issue was not delay so much as whether the events that took place before complaint was made, that is, the initial denials of any wrongdoing and the pressure applied by the informant, affected the credit of the complainants.
The trial judge did draw the jury's attention to the reluctance of each complainant to make statements to police, the pressure brought to bear upon each of them by the informant, and the repeated denials by the complainants DP, TB and AS that anything untoward had occurred between them and the applicant. That was done in the course of canvassing the question whether the complaints exhibited a consistency which bolstered the credit of the complainants or were the product of collusion between the complainants. In my view, the trial judge dealt appropriately with the circumstances attending the complaints. Her Honour's directions met the case advanced by the defence. The directions were appropriately tailored to the needs of this case. The Court in R v Miletic said:
Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required.[2]
The present case was not exceptional, in my view.
[2][1997] 1 VR 593 at 606.
The next ground of the application was that the trial miscarried by reason of the prosecutor suggesting to the applicant in cross-examination that he was saying that the complainants were lying, and by the failure of the trial judge to properly direct the jury that the cross-examination was impermissible.
The following exchanges took place in the course of the applicant's cross-examination by the prosecutor:
So when [TB] in reference to Alma Street ... you say he's lying about that, do you?---I'm saying he's mistaken.
...
None of these sexual allegations by these four boys are the truth?---No.
They're all lying about it?---And are mistaken about me being the person involved.
So it was somebody else, was it?---I don't know the answer to that. I can't answer that one.
So you say "Well either they're lying about it or they are mistaken about who it was they had sex with?---All I know is, it wasn't me that was involved.
... You say [AS] never went to Alma Street?---I never saw [AS] at Alma Street.
So he's lying about that?---Well he was never there when I was there.
You never saw [TB] at 303 Racecourse Road?---I don't - I never spoke to him and/or invited him.
So he's lying about being there and having sex with you there?---No, it wasn't me that anything happened with.
It is now well established that any witness, and particularly an accused, who gives evidence ought not to be asked in cross-examination whether another witness has lied.[3]
[3]Palmer v R (1998) 193 CLR 1 at 7 and 25; R v Rodriguez [1998] 2 VR 167 at 177-9 (Charles JA) and at 184-5 (Callaway JA); R v Costin [1998] 3 VR 659 at 668-9 (Charles JA); R v Leak [1969] SASR 172 at 173-4; R v Foley [2000] 1 Qd R 290 at 297; R v Dennis [1999] NSWCCA 23, [45] (Spigelman CJ); R v Baker [1999] NSWCCA 277, [21] (Adams J); R v Middleton (2000) 114 A Crim R 141 at 144; R v Buckley (2004) 10 VR 214; R v Babic (2005) 12 VR 155.
The respondent sought to meet the ground by contending that the fact that the defence had raised the question whether the complainants were lying justified the prosecutor's cross-examination of the applicant. It was pointed out that in opening the defence case, counsel submitted that, at the conclusion of the case, the jury might decide that each of the complainants knew or knew of each other, that there was a direct or indirect line of communication between them and that the witnesses were not honest or reliable, defence counsel cross-examined each of the complainants regarding the truthfulness of their accounts, which were alleged to have been fabricated for various reasons, and in closing address argued that each of the complainants made false allegations against the accused and had a reason for doing so. Counsel for the respondent submitted that an exception to the rule that an accused is not to be asked whether another witness has lied exists where an accused gives evidence alleging that a witness has lied. In R v SWC[4] the Court referred to an exception 'where the accused in his or her evidence-in-chief has specifically alleged that a Crown witness has been lying'.
[4][2007] VSCA 201. See also R v Middleton, above.
In my opinion it is one thing for the accused in his evidence to make an allegation that Crown witnesses are lying; it is another for counsel to suggest to the jury that the Crown case has been fabricated. If the accused himself opens the question, he can be cross-examined on the topic, as he can on any other matter as to which he gives evidence. On the other hand, if the accused does not allege the Crown witnesses are lying, the impugned cross-examination may well deflect the jury from an appropriate assessment of his credibility and that of the Crown witnesses. The question whether the Crown witnesses are lying is to be determined by the jury. The opinion of the accused is irrelevant. The cross-examination is apt to create an immaterial conflict between an accused on the one hand and the Crown witnesses on the other, which has the danger of side-tracking the jury from their task of assessing the evidence. Further, the cross-examination is tantamount to bullying. The accused is challenged to brand witnesses as liars. The cross-examiner seeks to trade upon a natural reluctance to defame others in the absence of certain knowledge.
The foregoing objections to an accused being asked whether the witnesses have lied do not apply to counsel for the applicant arguing before the jury that the Crown case rests upon lying testimony. Such an argument does not draw the accused into the question whether or not the witnesses are honest or lying, but directly addresses the question which the jury must consider. In my view, mounting the argument in this case did not justify the prosecutor's cross-examination of the applicant.
For the foregoing reasons I am of the opinion that the trial miscarried by reason of the prosecutor's cross-examination of the applicant. It is unfortunate that it did so as a consequence of a mistake by the prosecutor to which defence counsel did not object.
I would grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter, allow the appeal, set aside the convictions and order that the applicant be re-tried.
On 17 January 2006 the applicant was arraigned on a presentment containing 30 counts: 27 counts of an indecent act with a child under the age of 16 years, two counts of sexual penetration with a child under the age of 16 years, and one count of attempting to pervert the course of justice. The last count concerned an allegation that the applicant had approached AS in an attempt to obtain false evidence from him in relation to charges related to child prostitution, in which AS was not a complainant. Upon application by counsel for the applicant, the trial judge severed the last count from the presentment. The counts alleging sexual offences were tried in February 2006. The count of attempting to pervert the course of justice was tried some ten months later.
The nub of the Crown case was that the applicant requested AS to telephone the applicant's solicitor and offer to give false evidence on behalf of the applicant. AS spoke to the solicitor, who requested that AS put his version in a letter and send it to the solicitor. The applicant drafted the contents of the letter and told AS to write it in his own handwriting. The letter suggested that the applicant was the victim of false allegations. It was placed in an envelope supplied by the applicant, who stamped and mailed it. The applicant promised AS $50 for writing the letter. Later, the applicant offered AS another $100 to give false evidence.
The principal Crown witness was AS, and his evidence was supported by the evidence of NC. Each witness gave his evidence-in-chief by means of a pre-recorded VATE tape being played to the jury.
The jury returned a verdict of guilty. After a plea, the applicant was sentenced to be imprisoned for a term of 18 months. It was ordered that six months of the sentence were to be served cumulatively on the minimum term imposed in respect of the sentence imposed after the first trial.
The applicant seeks leave to appeal against his conviction and sentence. The sole ground of the application is that the trial miscarried as a consequence of the evidence of the witnesses AS and NC being adduced in the form of a video recording.
Section 37B of the Evidence Act 1958 provides:
(1)This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for -
(a) a sexual offence; or
(ab)an offence under Subdivision (8EAA) of Division 1 of Part 1 of the Crimes Act 1958; or
(b)an indictable offence which involves an assault on, or injury or a threat of injury to, a person.
(2)The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with a cognitive impairment or is under the age of 18.
The offence of attempting to pervert the course of justice does not fall within any of the paragraphs of sub-s (1). This point was overlooked at the trial. Counsel for the applicant submitted that the VATE tape should not be used as the evidence of NC had been edited and was disjointed and difficult to understand and AS was to give evidence in addition to that on the VATE tape. It was not suggested that s 37B did not apply. The trial judge appears to have thought that the tapes should be used because, as she said, 'the giving of evidence for children can be particularly difficult'.
As Winneke P said in R v BAH[5], 'The procedure provided by s 37B represents a significant departure from criminal procedure as recognised by the common law.'
Instead of being elicited in open court, critical Crown evidence takes the form of a recorded conversation between the witness and a police officer, which takes place before the trial. In my opinion a departure from normal criminal procedure is only permitted in the cases identified by s 37B.
[5](2002) 5 VR 517, [3].
Counsel for the respondent submitted that had the trial judge not severed the presentment, the evidence-in-chief in respect of the count of attempting to pervert the course of justice could have been led by playing the VATE tape and said that it was an extraordinary result that the tape could be relied upon prior to but not after severance.
The severance was not an incidental event that did not bear upon the operation of the section. If the count of attempting to pervert the course of justice had not been severed, the proceeding would have been one relating partly to a
charge of a sexual offence within s 37B(1)(a).[6] The sexual offences charged against the applicant fell within Clause 1 of Schedule 1. The trial with and without that count bore a different character. In my view the severance of the count removed the case from the purview of the section, and that result was neither extraordinary nor anomalous.
[6]The term 'sexual offence' was defined in s 32B(1) as an offence to which Clause 1 of Schedule 1 of the Sentencing Act 1991 applied.
Accordingly, I would grant the application for leave to appeal against conviction, hear the appeal instanter and allow it, quash the conviction and order that the applicant be re-tried.
COLDREY AJA:
I agree with the learned presiding judge, for the reasons advanced by him, that in each of these cases the convictions must be quashed and re-trials ordered.
In relation to the first case, which involved allegations of sexual impropriety, the line of questioning of the applicant as to whether the complainants were lying was, on the authorities, impermissible. Indeed, the prohibition of this form of questioning has been enunciated in cases spanning many years. It is, therefore, regrettable that the prosecutor (for whatever reason) failed to comply with the stated principles. In such circumstances it is not for this Court to seek to find a method of ameliorating the effects of this fundamental breach in order to save a conviction. I am also bold enough to express doubt as to the correctness of the proposition set out in R v Leak[7], namely, that a prosecutor is entitled to ask an accused in cross-examination whether a prosecution witness has told the truth, as distinct from whether that witness was lying. Although apparently noted with approval in R v SWC[8], it seems to me to be a distinction without a difference. As a trial judge, I would regard the purported distinction as too subtle, if not meaningless, for a jury. If the prosecutor cannot do one, he or she should not be permitted to do the other. CURTAIN AJA:
[7][1969] SASR 172.
[8][2007] VSCA 201 at [30].
I substantially agree with the learned presiding judge and in the orders he proposes.
However, with regard to the appeal relating to the first trial, with respect, I beg to differ with his Honour's reasons on the ground relating to delay. In the circumstances where there had been a delay of between two years and one year between the offences and the complaints to the police, where the issue was raised squarely in counsel for the appellant's opening address, on the evidence and in the final addresses, the learned trial judge was, in accordance with the terms of s 61 of the Crimes Act, mandated to direct the jury in respect of delay. Such direction of itself would not have favoured the accused. However, counsel for the appellant sought a direction not only in light of the delay in complaining but the fact that in that period of delay three complainants had denied misconduct between the complainants and the accused, at least to three different people, including the informant, on a number of occasions, and the informant had persevered and pressured the complainants to make statements, he professing to at least one of them that he did not believe his denials. In my view, such direction should have been given in the interests of justice, whether that be a Longman warning or not. It was central to the defence case, not the delay itself, but rather the delay in combination with the repeated denials of misconduct in the circumstances where the issues were, as her Honour commented, ‘stark’, and where the case was essentially oath against oath. In my view, in light of the repeated denials of at least three of the complainants on previous occasions that these offences had occurred, it was in the interests of justice that such a direction, tailored to the needs of the case, should have been given, and that the jury should have been told that they should carefully scrutinise the evidence of each of the complainants and be satisfied as to their reliability, truthfulness and accuracy before they could go on to convict.
BUCHANAN JA:
In respect of the appeal in proceeding No 320 of 2006, the order of the Court is:
The application for leave to appeal against conviction is granted.
The appeal is treated as instituted instanter and is allowed.
The convictions are set aside and it is ordered that the applicant be re-tried.
In the appeal in proceeding No 32 of 2006, it is ordered that:
The application for leave to appeal against conviction is granted.
The appeal is treated as instituted instanter and is allowed.
The conviction is quashed and it is ordered that the applicant be re-tried.
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