R v Fournair
[2005] VSCA 104
•4 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 109 of 2004
| THE QUEEN |
| v. |
| JOSEPH FOURNAIR |
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JUDGES: | CHARLES and VINCENT, JJ.A. and OSBORN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 April 2005 | |
DATE OF JUDGMENT: | 4 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 104 | |
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CRIMINAL LAW – Conviction – Intentionally causing serious injury – Risk that verdict was based on evidence that did not allow for a finding beyond reasonable doubt – Open to jury to reach verdict on evidence before it – Uncharged acts – Evidence of prior acts required to establish the context of fear of violence – Cross-examination of co-offender as to conduct of plea – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R.E. Carlin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr D.A. Dann | Robert Stary & Associates |
CHARLES, J.A.:
Having read the reasons for judgment prepared by Osborn, A.J.A., I agree with his Honour that this application for leave to appeal against conviction should be dismissed, for the reasons he gives.
VINCENT, J.A.:
I agree that, for the reasons advanced by Osborn, A.J.A., the application for leave to appeal against conviction should be dismissed.
OSBORN, A.J.A.:
On 20 December 2003 following a 12 day trial, the applicant Joseph Fournair was convicted of one count of intentionally causing serious injury to Jessica Iljazov. He was sentenced to be imprisoned for 8 years with a non-parole period of 6 years. He now seeks leave to appeal against conviction and sentence.
At the time of the incident in issue the applicant was 32 years old and living with a woman named Staples. The household included three children from a former relationship of the applicant, namely Brendan aged 13, Jamie aged 12 and Bianca aged 9. It also included Jessica Iljazov a daughter of Staples who was then aged 3. Jessica had come to live with her mother in early 2002.
On 12 April 2002 Jessica was struck to the head with a hairbrush by her mother. She then collapsed and an ambulance was called. She was taken first to the Northern Hospital and then after initial investigations she was transferred to the Royal Children’s Hospital. Photographs taken at the time demonstrate that she was suffering from extensive bruising and lacerations to her face, head, torso, buttocks and limbs. Medical imaging undertaken at the time also revealed that she had suffered brain injury by way of subdural haematoma. Her injuries were not explicable by reference only to the assault with the hairbrush on 12 April 2002.
At the trial evidence was given by the applicant’s son Brendan that approximately one and a half weeks before the incident on 12 April 2002 the applicant had required Jessica to kneel in front of a curved wall adjacent to the main bedroom in the house. The applicant had then thrust Jessica’s head into the wall with sufficient force to damage the plaster. The applicant also struck Jessica in the face injuring her in the area of the mouth and nose. The applicant’s daughter Bianca also described the applicant together with Staples hitting Jessica’s head against the wall. Both Brendan and Bianca further described Jessica as suffering from consequential injuries to the face and developing a marked swelling of the forehead with a jelly-like appearance. The medical evidence at the trial further established that it was likely that the brain injury identified by medical imaging was caused by sudden and forceful acceleration and deceleration of the head, sufficient to cause shearing forces within the brain.
At the trial the applicant contended that he did not cause head injury to Jessica in the manner described by his children, nor was he in any way violent to her. The applicant contended that the injuries were caused by Staples alone and that he had no involvement in the “wall incident”. Both he and Staples gave evidence in support of his defence.
The grounds of appeal against conviction
The application for leave to appeal was pursued on the basis of seven grounds.
“3.That the verdict of the jury should be set aside as there is a significant risk that the verdict was based on a finding that the applicant had caused the ‘brain injury’ – in circumstances where the evidence did not allow for such a finding to be made beyond reasonable doubt.
4.The learned trial judge erred in admitting the evidence of uncharged acts of violence upon Brendan Fournair, Bianca Fournair and Jamie Fournair.
5.The learned trial judge erred in his direction to the jury about the use that could be made of uncharged acts.
6.The learned trial judge erred in permitting cross-examination of Megan Staples as to the conduct of her plea hearing.
7.The learned trial judge erred in failing to direct the jury as to the use that could be made of the evidence that related to the conduct of Megan Staples’ plea hearing.
8.The learned trial judge erred in permitting the applicant to be cross-examined as to whether Brendan Fournair and Bianca Fournair had lied in their evidence.
9.The learned trial judge erred in failing to leave for the jury’s consideration the count of recklessly causing serious injury.”
Because these grounds were in very large part directed to propositions which were not advanced during the course of the trial it is pertinent to recall the observations of Gleeson, C.J. in Doggett v. The Queen[1]:
“1.In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.
2.The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.
3.When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted."
[1](2001) 208 C.L.R. 343 at 346
It is convenient to deal in turn with each of the grounds pursued in argument upon the application.
The evidence as to brain injury
The first ground pursued turns on the submission that whereas two of the treating doctors who saw CT scan images at the Northern Hospital gave evidence of observations indicating both recent and less recent subdural haematoma, two further treating doctors who evaluated further CT scans at the Royal Children’s Hospital gave evidence of observations of recent injury only. It was submitted that in these circumstances the jury could not be satisfied the applicant caused brain injury to Jessica and that this rendered the jury's verdict unsafe. As counsel for the respondent submitted however there are two reasons why this alleged inconsistency cannot be regarded as precluding a conclusion beyond reasonable doubt that the applicant caused serious injury to Jessica. First, the Crown case was clearly put to the jury on alternative bases. It was put that the jury could be satisfied that the applicant caused Jessica serious injury to the head comprising both external injuries and injury to the brain or in the alternative comprising external injuries alone. The jury were directed in clear and full terms as to these alternative views of the evidence and there is no reason to suppose that they did other than evaluate them properly.
The second reason is that it was in any event clearly open to conclude that the wall incident did result in “brain injury”. The medical evidence was not to be evaluated in isolation but had to be assessed together with the evidence as to the manner and degree of the application of force to Jessica’s head, together with the evidence of consequential external injury observed by Brendan and Bianca. This evidence strongly supported the view that the wall incident comprised a cause consistent with the brain injury subsequently observed. Conversely there was no other incident described in evidence which fitted the probable cause of the brain injury as explained by expert medical opinion. Further and in any event both doctors Velovski and Kovacs who saw Jessica at the Northern Hospital gave evidence that they observed medical imaging which showed both recent (up to three days old) and less recent subdural bleeding. The fact of these observations was not challenged in cross-examination. The defence was conducted on the basis that it was not necessary for the jury to evaluate the medical evidence because whatever the nature of the injuries the applicant did not cause them. As a result, the jury had before it unchallenged evidence strongly supportive of the view that Jessica suffered brain injury prior to the incident which led to her collapse on 12 April 2002. This evidence was not directly contradicted by the evidence of the two doctors who treated Jessica at the Royal Children’s Hospital. Dr Maixner gave evidence of her “recollection” of the CT scan images seen by her at the time and stated that they demonstrated recent bleeding and more than one site of bleeding. Dr Marks said he could not rule out that there was bleeding on more than one occasion. It thus cannot be said that the evidence of doctors Marks and Maixner provided any satisfactory basis for rejecting the evidence of observations made by doctors Velovski and Kovacs.
It follows from the above considerations that on the whole of the evidence it was clearly open to the jury to conclude that the wall incident caused brain injury. It further follows that this ground must fail.
The evidence of uncharged acts
Evidence was given at the trial by Brendan and Bianca of a series of acts of violence towards themselves and their siblings including allegations that the applicant threw power tools at Brendan, kicked Jamie in the back of the head, kicked Brendan, hit Jamie and Bianca with a stick, threw chairs at Bianca, hit the children whenever he could not find something, hit Brendan with a piece of steel, hit Bianca over the head with a chopping board, threw a coffee table at Brendan, hit Brendan with a piece of wood from the broken coffee table and with a cricket bat, and hit Brendan and Jamie when they were in the shed.
The admissibility of evidence of uncharged acts other than uncharged acts with respect to Jessica formed the subject of a pre-trial challenge.
Counsel for the applicant initially sought separate trials of a series of counts relating respectively to assaults upon Brendan, Jamie and Jessica. Argument on this application raised the question of cross admissibility of uncharged acts against each of the children with respect to each of the charges.
In the event, the learned trial judge granted separate trials essentially because the evidence of the injuries to Jessica might unfairly prejudice the accused's trial on the other counts. Nevertheless he further ruled that evidence of uncharged acts against each of the children was generally admissible in the trial relating to Jessica, but that such evidence should be restricted to evidence concerning events prior to 12 April 2002. In so ruling, the learned trial judge found that evidence of uncharged acts from Brendan and Jamie was admissible “in order to provide a properly complete context for their allegations of assault on Jessica Iljazov” . He further stated:
“Their evidence if accepted describes extreme almost extravagantly violent mistreatment of a three year old. For example the striking of the head against a wall; she was placed in a cupboard or wardrobe. It is a violence usually in response to perceived misbehaviour. It is irrational and uncontrolled.
Their evidence also describes the accused’s violent and fearful treatment of the children in the household generally. It was an environment of fear. Both boys, if accepted, were often assaulted, irrationally and in anger. They speak in the VATE interviews of their fear. That context for example is capable of legitimately explaining why both boys at 12 and 13 would witness such extreme mistreatment of a 3 year old without any attempt at intervention, without even verbal complaint or without telling others.”
Ultimately, his Honour concluded that the Crown was entitled to lead “a properly complete context” including the alleged mistreatment of the older boys at relevant times so that the jury might properly assess the reliability and credibility of their evidence of the offending against Jessica. His Honour formed the view that it was just to admit such evidence despite the prejudicial effect it would carry.
Counsel for the applicant submits that although evidence of uncharged acts comprising violence by the applicant towards Jessica was admissible, evidence of the uncharged acts with respect to Brendan, Jamie and Bianca should not have been admitted. I do not accept this submission. In my view the evidence was admissible, as his Honour said in order to provide a realistic context in which to assess the Crown case. As Barwick, C.J. explained in Wilson v. R.[2]:
“It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible.”
[2](1970) 123 C.L.R. 334 at 339
In the present case the evidence could be regarded firstly as explaining why the applicant would undertake horrifically brutal punishment of Jessica in the presence of his own children. As Southwell, A.J.A. (with whom Phillips, C.J. agreed) observed in R. v. Josifoski[3] with respect to the relationship evidence there in issue:
“In my opinion it serves also to explain why he would be confident that he could with impunity again assault her. … Without the evidence of the prior acts … the jury might think that it was highly unlikely that the applicant would take the risk of assaulting his daughter in the presence of others. It might then have appeared to be 'an unreal and not very intelligible event', to quote again the words of Dixon J. in O’Leary v R. (1946) 73 C.L.R. 566.”
[3](1997) 2 V.R. 68 at 77
Secondly, the evidence could be regarded as explaining why the older children did not intervene on Jessica’s behalf at the time of or immediately after the wall incident.
Thirdly, the evidence was critical to a realistic understanding of the applicant’s post-offence conduct upon which the Crown relied. Brendan gave evidence that the applicant instructed him to say that Jessica had ridden her bike into his truck and injured herself. Having given this instruction he placed some of Jessica’s blood from the cut on her face onto the rear of the truck. It is apparent that this evidence was capable of being regarded as persuasively demonstrating consciousness of guilt of the crime charged. The context of the instructions was that of the fear instilled by the previous uncharged acts of violence inflicted upon the children jointly and individually.
Fourthly, it was in my view an inevitable component of the defence case that the allegations made by the children that the applicant was involved in the wall incident, would be met by the proposition that such allegations were recent inventions. The defence case was that such allegations were made only after Brendan moved out of the home and were made in consequence of his dissatisfaction with his treatment by the applicant and/or at the instigation of his mother’s family. The children’s asserted reason for lack of prior complaint was their fear of their father. Such fear could only be realistically substantiated by a description of what he had done to them. As Southwell, A.J.A. further stated in Josifoski[4]:
“... it must also be recognised that the Crown is generally permitted to lead evidence to rebut possible defences, and in the present case that would obviously have included a reliance upon the absence of complaint by the complainant, and the claim that it was improbable that the applicant would assault the complainant in the presence of other members of the family.”[5]
[4]At 75
[5]In this case it was the failure of the witnesses to complain which was in issue. See also R. v. RH McL (1999) 1 V.R. 746 per Batt, J.A. at 769 [71] where his Honour observed the failure to complain was in the words of counsel “odds on” to arise.
Counsel for the applicant took particular objection to evidence of uncharged acts against Jamie. Subsequent to the pre-trial ruling concerning uncharged acts, the Crown prosecutor indicated that she did not propose to call Jamie as she had formed the view he was not a reliable witness.[6]
[6]Some corroboration for this view can be gathered from the subsequent failure of the defence to call him as a witness to the relevant events.
It is now said that in these circumstances it was unjust to admit evidence concerning acts of violence to Jamie. It is to be noted however that despite the clear indication given by the Crown prosecutor that Jamie would not be called, no objection was made to the inclusion in the VATE tape evidence of either Brendan or Bianca of material concerning uncharged acts against Jamie.
Further, it is clear that the evidence relating to Jamie related in significant part to incidents involving violence towards both Brendan and Jamie.
More fundamentally however, once it is accepted that evidence is admissible to establish the context of fear of violence which embraced all the children at the date of the wall incident, there is no reason to exclude evidence of violence observed by one child but inflicted by the accused upon another. Indeed, it might be thought that it was only a realistic appraisal of the cumulative level of violence experienced and observed by each of the witnesses which might be thought to establish the relevant context.
It was next submitted that evidence of uncharged acts towards Bianca was not specifically adverted to in the learned trial judge’s preliminary ruling. This is strictly correct, but the basis and tenor of his initial ruling was abundantly clear. Once again the evidence complained of was included by agreement in Bianca’s VATE tape evidence. There is no substance in this complaint.
Specific argument was also addressed to the admission of evidence of uncharged acts of violence occurring after 12 April 2004. Although such evidence was excluded by the learned trial judge’s initial ruling it was subsequently permitted in re-examination of Brendan after extensive cross-examination directed to the question of the circumstances in which Brendan left the home. It was put in cross-examination that Brendan had misbehaved in a number of ways and in effect that his father was a caring parent and fair disciplinarian. Further, it was suggested that Brendan left home with a grudge against his father resulting from such discipline and that this grudge had infected his attitude towards his father.
In my view, this cross-examination opened up the question of the applicant’s violence towards Brendan and his siblings after 12 April 2002. The cross-examination had proceeded without reference to a most significant aspect of the relationship between Brendan and his father during the period which it sought to explore. It would have been quite unfair to the witness if the context in which he acted had not been fully explained to the jury.
The judge’s direction as to uncharged acts
The learned trial judge was careful to give both a preliminary direction concerning uncharged acts and a further fuller direction in his charge. The preliminary direction was given immediately after Brendan gave evidence and immediately before Bianca gave evidence. The jury was directed to apply the principles stated to their consideration of the evidence of both Brendan and Bianca. They were specifically directed that they could not use the evidence of uncharged acts as similar fact evidence. They were so directed in clear and unambiguous terms. Likewise, the charge dealt with the evidence in issue in clear and unambiguous terms. In particular, a comprehensive direction was given that the evidence was not to be used as similar fact evidence.
Counsel for the applicant now submits that an express direction should have been given that the jury could not use the evidence of uncharged acts unless they were satisfied beyond reasonable doubt that such evidence was not the result of collusion between Brendan, Bianca and their mother’s family. There was no admissible evidence of such collusion at the trial but the applicant deposed to his belief in this respect and during the course of the case it was put to both Brendan and Bianca that they had been put up by their mother’s family to complain to the police concerning the applicant. The same suggestion was put in turn to their maternal grandmother and two aunts who were called as witnesses.
There are two answers to this submission. Firstly, the authorities upon which counsel relies are cases specifically concerned with similar fact evidence and its particular dangers.[7] In the present case it was made abundantly clear to the jury that they must not treat the evidence of uncharged acts in this case as evidence of similar facts. A particular sensitivity which is absent in this case necessarily arises with respect to questions of collusion affecting similar fact evidence. This is because of its character. In Hoch v. The Queen[8] Mason, C.J., Wilson and Gaudron, JJ. stated that:
“Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.”
[7]R. v. Best (1998) 4 V.R. 603; The Queen v. Buckley [2004] VSCA 185 at [52]
[8](1988) 165 C.L.R. 292 at 294-295
Secondly, the jury must have assessed the credibility of Brendan and Bianca in the light of the matters put to them in cross-examination including the allegations of collusion and their responses. This assessment was at the heart of the evidentiary conflict between the account given by the two children as against the account given by the applicant and Staples. It is entirely artificial to suggest that in the circumstances of this case the jury could have reached its verdict without considering the possibility of collusion. This is most simply illustrated by the fact that in summarising the final address of defence counsel at the trial, and at the conclusion of his charge the learned trial judge expressly reminded the jury of the defence submissions that “the Brewer women in particular were intent upon getting the children back over time”, Brendan’s evidence was a “fabrication of quite the worst kind”, and that it was plain that Bianca “was coached and her denials of that are lies”.
Cross-examination of Staples
Staples was called by the defence to give evidence that the applicant had never injured Jessica but that she Staples had and that she was responsible for the wall incident (although she denied that she had deliberately thrust Jessica’s head into the wall). Staples was cross-examined by reference to a variety of matters concerning the basis on which she had pleaded guilty to a continuing course of conduct resulting in serious injury to Jessica in April 2002. This cross-examination was directed in the main to establishing that she was an unreliable witness. Ultimately, although she denied that she had ever given instructions for her plea to proceed on the basis that she had acted jointly with Fournair, she conceded that she had lied to police about the events in issue, and that she had lied to a psychologist and psychiatrist who had prepared reports for the purposes of the plea hearing.
In my view the cross-examination of Staples was legitimate. Moreover, the transcript shows that it was conducted very fairly in that the Crown Prosecutor endeavoured to put matters in a balanced way, including matters which might be said to favour the witness. The cross-examination was directed to prior statements made by and on behalf of Staples, which were, on their face, inconsistent with her evidence in chief.[9]
[9]Petty v. Maiden (1991) 73 C.L.R. 95 at 101-102; R. v. Sadaraka (1981) 4 A.Crim.R. 221 at 226-227
The judge’s directions concerning the evidence of Staples
Once again there was no exception taken by the applicant’s counsel at trial to his Honour’s charge on the basis now advanced. Conventional directions were given both as to the rule that it is the answers to questions put in cross-examination which constitute the evidence, and as to the use which the jury could make of prior inconsistent statements. These directions squarely addressed the relevant principles which the jury were required to apply in properly assessing the evidence of Staples. Moreover, it must be observed that if they did so it is clear that there was a very substantial basis for regarding her evidence in the current trial as unreliable.
Cross-examination as to lies
The cross-examination of the applicant in issue arose as follows:
“Q. I suggest you yelled and hit her on numerous occasions
A. No you’ve got it wrong.
Q. Just as Brendan said that you did.
A. Brendan makes good stories doesn’t he?
Q. Both Brendan and Bianca are lying you would say.
A. Well with the influence of the family I think so – yes.”
It can be seen that the single question concerning lying which forms the basis of this submission was not objected to. Further, it arose squarely out of the preceding answer volunteered by the witness. In addition the applicant's evidence had been preceded by the express and repeated suggestions to both Brendan and Bianca in cross-examination that they had lied in their evidence to the Court. There is no substance in this ground. It is fanciful to suggest that the question in issue gave rise to a risk that the jury would be deflected from the true issues in the trial or might be tempted to reverse the onus of proof.[10]
[10]Cf R. v. Buckley [2004] VSCA 185 at [9]
Recklessly causing serious injury
The learned trial judge left to the jury the alternative charge of intentionally causing injury. He did not however leave the further alternative of recklessly causing serious injury as it is now contended he should have. Once again the point now taken was not taken at trial. Indeed it is clear that the question of alternative charges was discussed by the learned trial judge with counsel and a deliberate forensic decision was made by defence counsel to agree to the alternative left to the jury. This case is thus in direct contrast to R v Kane[11] upon which counsel for the applicant relied.
[11] (2001) 3 V.R. 542. In that case Callaway, J.A. observed at 585 [105]: “Importantly this was not a case where forensic judgment could account for the omission to ask for a direction and Ms Sexton did not so contend.”
In the circumstances of this case the applicant cannot be said to have been prejudiced by the alternative to which counsel agreed. Firstly to have left a cascade of alternatives would have carried with it the risk that the jury might be improperly attracted to the middle ground by way of compromise. Conversely, the alternative which was left guarded against the two dangers recognised in English authority and articulated by Callaway, J.A. in Kane[12]:
“ … but it was recognised that there were cases other than cases of homicide where a judge would be obliged to leave a lesser alternative to the jury in order to guard against two dangers, one being that, faced with a false choice between conviction or acquittal of the main offence and nothing else they would acquit the accused altogether when he should have been convicted of the alternative offence and the other being that, faced with the same false choice, they would convict the accused of the more serious offence rather than let him get off scot-free for what was, on any view, serious misconduct.”
[12]At 585 [107]
Equally fundamentally in the present case only two real factual issues arose at the trial. Firstly, did the applicant cause head injuries to Jessica and secondly, were those injuries serious injuries. The evidence against the applicant was that he deliberately inflicted injury upon Jessica. If the evidence were accepted it demonstrated deliberate and brutal punishment of her leading to serious injury. If it were not accepted then the applicant was entitled to a full acquittal. This was not a case where any view of the facts proved might reasonably have reduced the offence to one of recklessly causing serious injury. Ultimately it is plain the jury were satisfied beyond reasonable doubt that the applicant deliberately inflicted serious injury upon Jessica, contrary to the defence contention that it was Staples alone who was responsible for such injury.
For the above reasons leave to appeal against conviction must be refused.
The appeal against sentence
The appeal against sentence was adjourned to enable it to be dealt with together with that of Staples.
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