R v Giles
[2000] VSCA 121
•7 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 266 of 1999
| THE QUEEN |
| v. |
| MICHAEL PETER GILES |
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JUDGES: | WINNEKE, P., BROOKING and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 June 2000 | |
DATE OF JUDGMENT: | 7 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 121 | |
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Criminal law – Applicant charged with two counts of indecent assault and six counts of common assault on young woman – Jury acquitting on the two counts of indecent assault and on three of the counts of common assault – Convictions not unsafe and unsatisfactory – Judge not erring in giving the jury a Browne v. Dunn direction.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. N. Crafti | Robertson Ramsay & Waites |
WINNEKE, P.:
I will invite Chernov, J.A. to give the first judgment in this application.
CHERNOV, J.A.:
On 26 August 1999 the applicant pleaded not guilty to a presentment filed in the County Court at Melbourne which alleged that he had committed the following offences in relation to a young woman ("the complainant").
(a) Two counts of indecent assault (counts 1 and 3).
(b) Six counts of common assault (counts 2,4-8).
Following a trial lasting some nine days, the jury returned verdicts of not guilty in respect of counts 1, 2, 3 and 5 and guilty on counts 4 and 6, 7 and 8. After hearing a plea in mitigation of sentence, the judge sentenced the applicant to six months' imprisonment on each of the relevant counts and suspended the effective sentence of six months for a period of 18 months.
Having regard to the grounds of appeal to which I will refer later, it is necessary to summarise the relevant circumstances in which the alleged offences took place. At all relevant times the applicant was a practising psychiatrist. The complainant had been referred to him for treatment for anorexia nervosa in April 1985 when she was 20 years of age and the applicant was aged 44. Almost from the outset, their relationship involved some physical and intimate contact between them, which was usually instigated by the applicant. This included the following acts by him: rubbing the complainant's legs and arms while she sat on his knee during therapy sessions; telling the complainant that she made him feel "randy"; kissing the complainant on the lips; undressing the complainant to her underpants and t-shirt at his home and removing the complainant's top and pulling her close to him. With time, this relationship developed to a point where consensual sexual intercourse took place between them. It is common ground that, thereafter, they were in a consensual, albeit intermittent, sexual relationship for the remainder of their association. The disagreement between them, however, was as to when sexual intercourse first occurred. The complainant asserted that it was shortly after she turned 21, which was in March 1986, whereas the applicant maintained that it did not start until after he ceased treating her, which was about August 1987. But it seems that whenever the sexual relationship may have started, the applicant and the complainant had, as I have mentioned, a developing social and physical relationship which commenced shortly after they met and which was, at least at the outset, instigated by the applicant.
I now turn to the events which were said to form the basis of the charges.
The complainant gave evidence that on an occasion shortly after she commenced attending the applicant (usually for 50-minute sessions on a Wednesday and Friday) he told her that he wanted to weigh her. He asked her to take off her skirt and to step on the scales but initially, she refused to undress. He offered to have his nurse weigh her instead, but in the end, the complainant took off her skirt. The applicant then told the complainant that he needed to feel around her groin area to make sure that she was putting on weight in the right places and proceeded to touch her at the top of each thigh just below her vagina. This alleged conduct formed the basis of count 1.
Count 2 was based on the following evidence of the complainant. She said that at a time before she turned 21, while she was a passenger in his car which was approaching a roundabout near his home, the applicant suddenly reached in front of the complainant who was not wearing a seat belt, opened the passenger door and pushed her onto the roadway as the vehicle was moving. The complainant said that the applicant stopped the car and allowed her back into it. When she asked him why he did that, he replied that he had had enough of her. This incident was the basis of count 2.
The complainant also gave evidence that at or about the time she turned 21 in March 1986 she met the applicant at a hotel in Carlton. She said that they were seated at the bar having a drink when the applicant put his hand on her shirt which covered her breast and kept it there for a while. When she asked him what he was doing he said that his hand had slipped. Apparently the complainant accepted that explanation. This event formed the basis of count 3.
The complainant said in her evidence that although she remained the applicant's patient until August 1987 notwithstanding their sexual relationship, she felt confused about her situation and that she told the applicant of her concern. She told him that she was very confused and said that when she was in his waiting room, she did not know whether she was waiting as his patient or as his lover. She claimed that she asked the applicant to refer her to another psychiatrist but he told her that he could not find anyone else who would take care of her as well as he could.
According to the complainant, the applicant eventually told her that she had to make a choice between being his patient or his lover. As a result, she said that she became frightened and, for a short time, stopped seeing him outside of therapy. Further, she also stopped attending therapy sessions for a few weeks. When she resumed the applicant told her that he had commenced living with another woman named Kate who had fallen pregnant to him.
The complainant continued to meet with the applicant socially for a drink and it seems clear enough that by the time she resumed therapy she was infatuated with him and that their relationship was emotionally charged and turbulent. On an occasion in 1987 she confronted the applicant near his home and asked what he was going to do about Kate. The applicant thereupon asked the complainant to come around the corner with him and when they did that, he hit her in the face with a closed hand causing her to fall to the ground. He then went into the house. The complainant said that she eventually got up from the ground and went home, having sustained bruising to her eye and her elbows and legs, but in relation to which she did not seek medical attention. At the next therapy session she asked the applicant why he had hit her and he replied that she had forced him to do it because she had pursued him. This incident was the subject of count 4.
On another occasion, when the complainant and the applicant had been out for a drink and were driving back to where she had left her car, she again confronted him about Kate. According to the complainant, the applicant then stopped the car, leaned over and tried to strangle her with both hands around her throat. This evidence formed the basis of count 5.
Count 6 was based on the following evidence of the complainant. She said that she had gone to the applicant's house on one occasion and the front door was opened to her by Kate who told her that the applicant was not home. She proceeded to wait for him in her car and when the applicant arrived, she asked him what was "going on". He told her to go home and started to walk towards his front door with her following him. The applicant again told the complainant to go home but she continued to follow him whereupon he took hold of her, dragged her out onto the roadway and hit her in the face with his fist and when she fell to the ground, he kicked her in the rib areas on each side of the body. As the applicant went towards his front door Kate came out and yelled at the complainant that she would call the police if she did not leave the applicant alone.
Notwithstanding these events and after the complainant ceased being treated by the applicant and commenced attending another psychiatrist, she continued to have a sexual relationship with him but avoided raising with him the subject of Kate. Usually the applicant visited the complainant's home. In March 1989, the applicant attended her 25th birthday celebration at a restaurant. The photographs taken at the party which were tendered in evidence show the applicant and the complainant as a happy and intimate couple enjoying the presence of each other and that of their friends. When the applicant went overseas in that year, he sent the complainant a postcard which was also tendered in evidence.
One evening in June 1990, the complainant drove the applicant home. Upon reaching his place, she got out of the car with the applicant and confronted him about their relationship. She said that the next thing that she recalled was lying on the ground with the applicant leaning over her and saying he was sorry. He had some blood on his hands and there was blood on her skirt. She told him that she would tell the police but the applicant asked her not to do that. A few days later, the complainant saw her general practitioner, Dr Ruth Fuller, who gave evidence to the effect that she saw the complainant at about that time and that she had bruising on the outer angle of her right eye and an abrasion above her left eye. These events formed the basis of count 7.
Dr Fuller also said that in 1989, the complainant had told her that she was having a relationship with her former treating psychiatrist and that she had expressed a concern about this and advised the complainant to speak with the Medical Practitioners Board ("the Medical Board") if she was aggrieved by anything. The complainant said that she raised with the applicant the question of going to the Medical Board and that he told her that if she dropped the idea, he would leave Kate and father her a child.
It seems that the relationship between the applicant and the complainant ceased for a while some time in 1992 when she went to Queensland. Although she made contact with him upon her return to Melbourne in February 1993, they did not then resume their relationship; that did not occur until the occasion of the applicant's birthday on 10 December 1993, when he came to her home and told her of his plan to leave Kate and the children. Although they resumed their relationship, the applicant did not carry out his promise to leave Kate. The complainant said that she fell pregnant to him but the pregnancy ended in a miscarriage in July 1994.
The gist of the complainant's evidence in relation to count 8 was as follows. In early August 1994 she went to the applicant's home. The front door was answered by Kate, who told her that the applicant would be home in about an hour. The complainant then waited for him outside. When he arrived home, she went inside with him. She said that she told Kate, in the presence of the applicant, that she and the applicant had been having a relationship, that he had told her that he was going to leave Kate and that she, the complainant, was considering taking the matter "further". The applicant denied what the complainant said to Kate. After Kate had left the room, the complainant declined the applicant's invitation to go out for a drink and went home. Later that evening, the applicant came to the complainant's home with a bottle of wine. She told him if he did not leave Kate she would go to the Medical Board. She said that the applicant stayed at her place until approximately 5 a.m. the next day but no sexual intercourse took place between them and he ultimately told her that he would not leave Kate. The complainant said that later that day she wrote a letter addressed to the Medical Board which was never sent. She went to the applicant's home that evening with a copy of the letter and handed it to him. She then drove home. The applicant rang her and asked her not to go to the Medical Board. It seems that she did not agree to that and, later that evening, the applicant came to her home and in the course of discussions about, inter alia, the letter that she had written, the applicant put his hands around her throat and tried to strangle her. She struggled, broke away from him and ran upstairs into her bedroom, shutting the door behind her. The applicant forced himself into the bedroom and put his hands around her throat again and tried to strangle her, telling her that he would have to kill her because she could write another letter to the Medical Board. He then left.
The applicant's case was that the allegations made by the complainant were a figment of her imagination. It was claimed that she developed an emotional attachment to him, concluded that she could not live without him and desired a sexual relationship with him and for him to leave his wife. In relation to counts 4 and 6 to 8, the applicant agreed that some of the circumstances outlined by the complainant did occur, but he denied that he had physically assaulted her. For example, in respect of count 4, he said that he recalled an occasion when the complainant was waiting for him when he got home and wanted to confront him. He stated that he pulled away from her or that she pulled away from him and as a result, she fell over. He claimed that she was not injured and eventually went away. In respect of count 6, the applicant said that he could recall an incident when the complainant came to his house while Kate was there and he recalled Kate's coming out and telling the complainant to go away or she would call the police and to leave the applicant alone. As to count 7, the applicant said that he could recall the complainant coming to his home in June 1990. He said that they had a violent verbal confrontation in the street. He claimed that she was standing in his way, hanging onto him and trying to prevent him getting away. He thought that she was drunk. He said that when he pulled away from her she fell over. He said that he remembered that he was concerned that she might have hurt herself and asked her whether she was all right. But he said he did not see any blood either on her or on himself. He stated that he thought that the complainant might have fallen over onto her face on a rockery on the corner. As to count 8, the applicant said that the complainant came to his place one night in August 1994 with a letter for the Medical Board and demanded to see Kate. She said that she did not believe that they were married and demanded to see their marriage certificate. Kate had become angry and told the complainant to leave the applicant alone. He said that Kate left the room and he walked out of the house and that the complainant went home in a very agitated state. He said that about an hour or so later, the complainant telephoned him and he went to her home because he was concerned about her mental state. On arrival, he observed that she was drunk; she was abusive and taunted him about the Medical Board. He stated that he asked her not to write to the Medical Board but denied grabbing her by the throat or otherwise physically assaulting her.
The applicant agreed in cross-examination that there was a Medical Board hearing in respect of allegations made against him by the complainant and two other female complainants. He further agreed that, in or about early August 1988, he received a summary of the proposed evidence of the three complainants from the Medical Board. In response, he wrote a letter dated 6 August 1988 in which he said that, although he disputed many of the details of the allegations, he accepted that the Medical Board would be entitled to find that he had engaged in unprofessional conduct of a serious nature and, if so minded, to cancel his registration. He wrote:
"I recognise that my conduct with the three complainants was inappropriate and contrary to my responsibilities to them as patients. I regret the harm I have caused [them] ..."
In his evidence at the trial, he denied having sexual intercourse with the complainant while she was still his patient and said that, in his letter, he was referring to the entire episode with the complainant and not just to the time when she was his patient. He claimed that although he believed at the time he was behaving properly, he had since changed his mind about that. It was part of the applicant's case before the jury that when he told the complainant that he refused to leave his wife, she reported him to the Medical Board and then commenced civil proceedings for damages and made a claim for criminal injuries compensation. It was not until November 1997 that she made a complaint to the police. The defence case was that the complainant's infatuation with the applicant resulted in her stalking him. When she could not get her way with him, she made the belated allegations first to the Medical Board and then to the police.
The applicant seeks leave to appeal against conviction on the following 11 grounds:
"1. The conviction is in all the circumstances of the case, unsafe and unsatisfactory.
2. The convictions were in the circumstances, manifestly a compromise of the jury's functions.
3.That the learned trial judge should, in the circumstances [have] stayed the prosecution as an abuse of process.
4.That the learned trial judge was in error in permitting the applicant to be cross-examined as to the contents of a letter which he had written to the Medical Practitioners Board.
5.That the learned trial judge was in error in permitting the prosecutor to refer to the proceedings of the Medical Practitioners Board.
6.That the learned trial judge was in error in instructing the jury that counsel for the applicant had failed to put various propositions to the [complainant] when he had either done so or there was, in the circumstances, no need to do so.
7.The learned trial judge failed to give the jury an adequate warning as to the dangers of convicting upon the uncorroborated evidence of the [complainant].
8.The learned trial judge was in error in precluding counsel for the applicant from cross-examining the [complainant] upon matters which he had already ruled could be asked.
9.The learned trial judge misdirected the jury as to the use they could make of the complaints to Dr Fuller and the Medical Board.
10.The learned trial judge failed to accord counsel for the applicant any or any reasonable opportunity of arguing against an intended comment of the kind known as a "Browne v. Dunn (1893) 6 R.67 (H.L.)" direction.
11.That the "Browne v. Dunn" direction was wrong in law."
The last four grounds were added pursuant to leave granted by the Registrar on 2 June 2000. I now turn to consider the applicant's submission in support of the grounds of appeal (other than ground 7 which was abandoned) in the order in which they were argued.
Grounds 1 and 2
Mr Crafti, who appeared for the applicant at the trial and on the appeal, submitted that the four convictions and the four acquittals were illogical and strongly suggested a compromise in the performance of the jury's duty. He argued that their verdicts of guilty on counts 4 and 6 to 8 ("the later counts") were, in effect, inconsistent with their verdicts of acquittal on counts 1 to 3 and 5 ("the earlier counts"), and he claimed that there is no logical or reasonable basis upon which the jury could have come to such a conclusion. In my view, there is no relevant inconsistency between the verdicts and there is no basis for claiming that the jury reached compromise verdicts in breach of their duty.
In MacKenzie v. R.[1] Gaudron, Gummow and Kirby, JJ. (with whom Dawson and Toohey, JJ. agreed on this issue) said[2] that the courts have repeatedly expressed -
"reluctance to accept a submission that verdicts are inconsistent in the relevant sense. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, the jury."
[1](1996) 190 C.L.R. 348.
[2]at 367.
A little later, their Honours quoted with approval what was said by King, C.J. in R. v. Kirkman[3], namely, that appellate courts should not be "too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty".
[3](1987) 44 S.A.S.R. 591 at 593.
In my view, there are a number of reasons for rejecting the claim of inconsistency in the verdicts in the present case. First, the acquittals do not translate into the conclusion that the jury have rejected the veracity of the complainant's evidence. As Brooking, J. observed in R. v. J.[4]:
"Regard must always be had [when considering the questions of consistency of verdicts] to the possibility that the jury, which has convicted on a number of counts and acquitted on others, has accepted the complainant as truthful, but has admitted the possibility of faulty recollection in some cases."
[4](1994) 75 A.Crim.R. 522 at 539-401.
The acquittal may only mean that the jury were not satisfied beyond reasonable doubt that all the elements of the offence had been made out. In the present case, it is unlikely in the extreme that the jury rejected the complainant as a reliable witness in relation to all counts. The jury convicted the applicant on four counts notwithstanding that his evidence on the critical issues was diametrically opposed to that of the complainant, so that it is likely that they accepted her evidence. It is perhaps worth noting that his Honour expressed, in respect of a number of issues, preference for the evidence of the complainant over that of the applicant in his sentencing remarks.
Further, the peculiar circumstances that relate to each of the early counts may well explain the acquittals. For example, in respect of count 1, the fact that the complainant seems to have considered the applicant's conduct as "part of the treatment" may have caused the jury to have a reasonable doubt whether the essential elements of the offence had been made out. As to count 3, the complainant accepted at first the applicant's explanation that his hand slipped when he touched her breast. Furthermore, the incident occurred in a public area when they were both drinking. Given those matters and the fact that the complaint was made many years after the event, the jury may have thought that the complainant's recollection of the event might have been tainted by her experience with him over the years. In relation to counts 2 and 5, the jury might have considered, given the intrinsic improbability of the alleged events occurring, that it was not sufficiently satisfied of the elements of the offences so as to convict the applicant on those counts. As to the later counts, however, it seems clear that it was open to the jury to be satisfied that they were made out. The alleged offences occurred much later than those which are relevant to the earlier counts and, in respect of all of them, the applicant admitted a number of surrounding circumstances alleged by the complainant. Moreover, count 7 was corroborated by Dr Fuller and the jury may well have formed the view that the applicant's version of events in relation to counts 7 and 8 was implausible.
In considering this issue it should also be borne in mind that the jury received a strong separate consideration direction from his Honour, who also emphasised on a number of occasions the need for the jury to consider and determine each count separately and only on the relevant evidence.
Thus, in my view, there is no inconsistency between the jury verdicts and no warrant for the conclusion that they failed to perform their duty in determining each count on the evidence before them and by the application of the law as explained to them by his Honour.
Mr Crafti then argued that the jury's verdicts were unsafe and unsatisfactory, contending, in essence, that an assessment by the Court of the evidence should lead it to conclude that its nature and quality were such that the jury, even if properly instructed, were bound to entertain a reasonable doubt as to the guilt of the applicant[5]. As to the claimed insufficient quality of the evidence, Mr Crafti relied essentially on:
[5]R. v. NRC [1994] VSCA 184 at [38] per Winneke, P. See also M. v. R. (1994) 181 C.L.R. 487 at 493 and Gipp v. R. (1998) 194 C.L.R. 106 at 123 per McHugh and Hayne, JJ.
(a) The length of time that had elapsed between the offences and the trial, thus putting at risk the reliability of the Crown evidence.
(b) The complainant being motivated by ulterior purposes and, therefore, likely to have been an unreliable witness.
(c) The evidence of the complainant was, save for count 7, totally uncorroborated.
His Honour, however, gave a helpful and full charge to the jury in the course of which he gave appropriate warnings to them in order to balance the potential prejudice to the applicant that may have arisen from the length of the time that had elapsed since the dates of the alleged offences and from the fact that the complainant's evidence was uncorroborated. That the complainant had a motive to see the applicant prosecuted was no doubt obvious to the jury in any event and they would have taken it into account in arriving at their verdicts. In my view, the quality and the nature of the evidence were not such that a properly instructed jury were bound to entertain a reasonable doubt as to the guilt of the applicant in respect of the later counts.
For completeness, I mention that it was also contended by Mr Crafti that much of the evidence of the sexual relationship was only led because of the existence of counts 1 and 3 on which the applicant was acquitted. But for those counts, Mr Crafti argued, much of the evidence would not have been admitted and, therefore, the applicant's cross-examination would not have been restricted by reason of the charges of sexual offences. This complaint is not covered by any of the grounds of appeal. In my view, it is, in any event, without merit. Even if one assumes that counts 1 and 3 were not on the presentment, it would nevertheless have been necessary for the Crown to lead evidence of the relationship between the applicant and the complainant in order that the jury might consider the other counts in the proper context rather than in a vacuum.[6] Furthermore, the applicant was not subjected to any relevant restriction in cross-examination in relation to counts that were unrelated to counts 1 and 3. In respect of those counts, of course, s.37A of the Evidence Act 1958 applied and the applicant was correspondingly restricted in his cross-examination on the subjects referred to in that provision.
[6]See Wilson v. R. (1970) 123 C.L.R. 334 at 344 per Menzies, J.
Thus, in my view, grounds 1 and 2 fail.
Ground 3
The applicant argued that, because the complainant had an ulterior motive in complaining to the Medical Board and to the police, the prosecution should have been stayed by his Honour as an abuse of process. It was said that she was motivated in her complaints by revenge and greed and that it is irrelevant that the Director of Public Prosecutions ("the Director"), who brought the proceeding, was not so motivated. As I understand Mr Crafti's argument, a relevant factor which supported the imposition of such a stay was that the complainant's evidence was uncorroborated; had it been corroborated, there may not have been a strong case for such a stay. Mr Crafti argued that the courts should exercise their supervisory role and stop such proceedings where they spring from complaints which are made for ulterior motives.
But it is clear that, other than where its own process is abused, the courts do not generally oversee the launching of prosecutions; that is left to the discretion of the Director under ss.22 and 24 of the Public Prosecutions Act 1994 for which the Executive and not the Judiciary is primarily liable[7].
[7]R. v. Jago (1989) 168 C.L.R. 23 at 61 and 77 per Deane and Gaudron, JJ. respectively and R. v. Ridgeway (1995) 184 C.L.R. 19 at 32 per Mason, C.J., Deane and Dawson, JJ.
The circumstances in which a relevant abuse of process might occur have been explained by Brennan, J. in Jago[8] where his Honour said:
"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."
It is clear from this passage that, in determining whether the proceeding is an abuse of process because it has been brought for an ulterior purpose, it is the motive of the prosecuting authority (here, the Director) that is relevant and not the motive of the prosecutrix in making the complaint. Mr Crafti specifically eschewed any suggestion that the Director brought this proceeding for an improper or ulterior purpose. Hence, there is no basis for arguing that, in this case, the proceeding is an abuse of process.
[8]at 47-48.
In any event, Mr Crafti's submission disregards the public interest in seeing that serious offences such as those in the present case are prosecuted and that those found to have committed them are brought to justice.
It follows that, in my view, no error has been established in his Honour's exercise of discretion not to stay the proceeding. The complainant's motive in making the complaint and the fact that her evidence was essentially uncorroborated are irrelevant to the issue of whether the process of the court has been abused.
Thus, this ground also fails.
Grounds 6, 10 and 11
The applicant next argued, in essence, that his Honour erred in giving the jury a Browne v. Dunn direction, although no complaint is made as to its terms.
His Honour began this part of his charge by telling the jury that he proposed to give them directions concerning some of the evidence given by the applicant and some of the submissions made by his counsel in his final address. He then referred briefly to the applicant's evidence in relation to Dr Prager and the incidents which were the subject of counts 7 and 8 and said that "those are the passages of evidence about which I shall give you some directions in a moment". His Honour then turned to three matters in respect of which Mr Crafti had made submissions in his closing address, namely, first, that the complainant lied about her evidence relating to her consultation with Dr Prager; secondly, given her quest for revenge and pecuniary gain, she had a motive to lie when giving evidence at the trial; and, thirdly, it was possible that she had an anti-male bias. His Honour then explained to the jury the gist of the rule in Browne v. Dunn, seemingly in respect of both the evidence of the applicant and the three submissions of Mr Crafti to which I have referred.
There is no complaint made by the applicant about his Honour's direction in so far as it related to the applicant's evidence which the judge had identified, so that nothing more needs to be said about it. The complaint is that his Honour should not have given the direction in relation to Mr Crafti's submissions because, it was contended, the rule in Browne v. Dunn had no application to the relevant cross-examination which was the subject of those submissions. The direction, it was said, effectively nullified counsel's proper attack on the complainant's credit and thus deprived the applicant of a fair chance of acquittal, particularly given the jury's verdict of not guilty in relation to the earlier counts.
In considering whether his Honour erred in giving the Browne v. Dunn direction, it is convenient to do so in the context of each of the three submissions that counsel made to the jury in his final address as they were identified by his Honour. The first arose out of the issue of whether the applicant had referred the complainant to another psychiatrist for consultation in accordance with her request. In anticipation that the applicant would give evidence (which he did) to the effect that he had referred the complainant to Dr Prager in the latter part of 1987, Mr Crafti cross-examined the complainant about her consultation with Dr Prager, having on the previous day obtained from her an admission that she knew little about medical propriety because, inter alia, she had never consulted a psychiatrist until she went to the applicant. More specifically, he suggested to her in cross-examination that the applicant had referred her to Dr Prager. This was denied by the complainant. She said that she believed that she only saw Dr Prager once and that that had occurred before she first consulted the applicant. She said that although she had sought such a referral prior to August 1987, he had declined to provide it, saying that no one could look after her as well as he could. She said that it was only well after her professional relationship with the applicant had terminated that she spoke with others about consulting another psychiatrist and eventually did so. The question of whether the complainant had been referred to Dr Prager before August 1987 was a strongly contested issue in the trial.
In his address to the jury, counsel for the applicant read the transcript of his cross-examination of the complainant. He reminded them that, on the day prior to the cross-examination in question, she said that she had never been to a psychiatrist before she consulted the applicant. He then said this to the jury:
"Either she had been to a psychiatrist before and seen Dr Prager, or she hadn't been to a psychiatrist before as she had explained ... Now that in turn leads to another lie all on its own, because she was then, after having said 'I had never been to a psychiatrist before', she was asked this question: 'No, but what you say happened to you was such, wasn't it, to lead you to think that it was wrong and improper?' Answer: 'I felt frightened by it. I didn't know at the time that it was wrong or improper'."
Counsel used the inconsistent answers as a springboard for his submission to the jury that the complainant in effect lied as to whether she had been referred by the applicant to Dr Prager before August 1987. But the allegation that she had given the inconsistent answers was not directly put to her; nor that she had been referred to Dr. Prager by the applicant before August 1987. Similarly, it was not put to her that it was her quest for revenge and monetary compensation that motivated her to make her complaint to the police and that, given such a course of action by her, she had a motive to fabricate her evidence at the trial. The same applies to counsel's suggestion to the jury that she may have an anti-male bias. Moreover, in relation to that issue, it seems that counsel accepted the complainant's answer that she was only afraid of men and moved to another topic without dealing directly with her alleged anti-male bias. It is not surprising, therefore, that Mr McArdle submitted with some justification that, in his cross-examination, the applicant's counsel was "willing to wound but too frightened to strike"[9] and that it was unfair to the witness that these matters were not squarely put to her.
[9]Reid v. Kerr (1974) 9 S.A.S.R. 367 at 374 per Wells, J.
On the other hand, it is at least strongly arguable that it was obvious to the Crown that the complainant had given the inconsistent answers. She was re-examined on the question of when she had consulted Dr Prager, but no re-examination was directed to her evidence that she had never consulted a psychiatrist before attending the applicant.
Similarly, it must have been obvious that the applicant's case contradicted that of the complainant on the issue relating to Dr Prager. It must also have been apparent that the applicant's case was that, because of the complainant's pursuit of monetary compensation and her complaint to the police, she had a motive to fabricate her evidence. In the circumstances, to have put those matters to her in cross-examination may have been a waste of time. A similar observation may be made in respect of the issue of whether the complainant had an anti-male bias. Given those circumstances, my initial view was that his Honour erred in giving the Browne v. Dunn direction. But as Gleeson, C.J. pointed out in R. v. Birks[10] the practical content of the rule needs to be related to the circumstances of the particular case "and one important circumstance may be that what is involved is a criminal trial. The precise significance of that may vary from case to case". Previously[11] his Honour noted that although their Lordships in Browne v. Dunn affirmed a rule of practice in the terms in which they expressed themselves, they also "recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The essential purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created." [Emphasis added.]
[10](1990) 19 N.S.W.L.R. 677 at 689.
[11]at 688
Thus, given that the application of the rule depends on the circumstances of the case and has as its principal purpose securing fairness in the conduct of the criminal trial, it seems to me that his Honour was in a better position than this Court to judge those matters having regard to the context, including the atmosphere, of the trial and to determine whether such a direction was required. In the circumstances, therefore, I was not persuaded that his Honour erred in that regard.
But, even if a Browne v. Dunn direction was not called for in this case, given its particular circumstances, such a misdirection did not result in a substantial miscarriage of justice for the purposes of the proviso to s.568 of the Crimes Act 1958. In my opinion, the direction could not have had much impact on the jury's consideration of the relevant issues. They must have appreciated in any event that the alleged offences arose out of a tumultuous sexual relationship between an intellectually superior male and a woman who was physically and emotionally dependent on him and with whom she was obviously infatuated. It must also have been obvious to them that, after some time, the applicant decided to end the relationship and effectively left the complainant for another woman and that the complainant sought to stop this occurring by keeping in contact with him and even threatening him with exposure to the Medical Board. Moreover, it must have been clear to the jury that, after the applicant had left the complainant, she sought her revenge and claimed from him pecuniary damages as well as other compensation. All this must have made it obvious that the complainant had a motive for fabricating her evidence. Similarly, given her past sexual abuse, it no doubt did not escape the jury's notice that she may have had an understandable anti-male bias which may well have been manifested during the very early relationship with the applicant and thereafter.
In the circumstances, therefore, I do not consider that the judge’s Browne v. Dunn direction or counsel's submissions to the jury in respect of which the direction was given would have had any material effect on the outcome of the trial. It is true that the misdirection related to a credit issue and that in the normal course it will not be save by the proviso[12], each case obviously depends on its own circumstances[13]. The critical question in the present case is whether the misdirection, if it was that, resulted in a substantial miscarriage of justice. For reasons given by me, in my opinion, no such result occurred here by reason of the Browne v. Dunn direction.
[12]See, for example, R. v. Stoupas [1998] 3 V.R. 645 per Winneke, P. at 655; and see R. v. Bartlett [1996] 2 V.R. 687 per Winneke, P. at 697-8, a case in which the trial judge had wrongly excluded evidence “which went directly to the issue of the complainant’s reliability in the recounting of events”
[13]Wilde v. R. (1988) 164 C.L.R. 365.
It follows, therefore, that in my view these grounds must also fail.
Grounds 4, 5 and 9
Under cover of these grounds the applicant's principal argument was that his Honour erred in permitting the prosecution to cross-examine the applicant on his letter of 6 August 1996 to the Medical Board. It will be recalled that an issue in the case was when the applicant formed a sexual relationship with the complainant. The prosecution contended, inter alia, that the applicant's letter amounted to a prior inconsistent statement on this issue. Mr Crafti objected to this cross-examination but his Honour ruled against him. Mr Crafti attacked this ruling in the following ways:
(a) The applicant's letter was not a prior inconsistent statement. It was contended that the prosecutor should have accepted the applicant's denial that he had commenced a sexual relationship with the complainant before she ceased to be his patient because the point went only to credit and the cross-examiner was bound by the answer.
(b) The cross-examination on the applicant's letter transgressed s.399(5) of the Crimes Act 1958 because it related to the character of the applicant.
In my view, Mr Crafti's first complaint is without foundation. The applicant's letter amounts to a prior inconsistent statement on the question of when he commenced a sexual relationship with the complainant. In the letter he admits, in effect, that his behaviour towards the complainant was inappropriate and contrary to his responsibility to her as a patient and that he regrets the harm that he had caused her. That statement is clearly capable of being viewed, to say the least, as being inconsistent with his evidence that he did not have a sexual relationship with the complainant until after she ceased being his patient.
As to the second complaint, the applicant's letter and the cross-examination were relevant to the issues in the case and, therefore, the cross-examination did not fall foul of s.399(5).
The oral argument of counsel made it clear that, notwithstanding the terms of ground 9, no point is taken with regard to the directions given by the judge concerning complaints. Further, no exception was taken in this regard at the trial.
Thus, in my view, grounds 4, 5 and 9 also fail.
Ground 8
At the outset of the hearing, his Honour entertained an application from the applicant under s.37A of the Evidence Act 1958 for leave to ask certain questions of the complainant principally concerning the sexual abuse she suffered as a young girl. So far as is relevant, his Honour permitted the applicant to ask, inter alia, questions 5 and 8 which are in the following form:
"5. If yes to any of questions 1, 2 or 4 [sic] with respect to each such incident of abuse, state as accurately as you are able what occurred, and what effect you believe such abuse had on you.
8.Do you believe that any of the incidents referred to in question 5
(a) caused or contributed to your becoming anorexic?
(b) caused or contributed to your finding it difficult to form sexual relationships?
(c) caused you to have any anger towards men generally?"
Mr Crafti complains that his Honour later wrongly changed his mind and ruled that he could not ask those questions.
When the applicant's counsel first posed question 5 to the complainant during cross-examination, an objection was taken by the prosecutor on the basis that the complainant's belief was irrelevant. His Honour reminded Mr Crafti that, when this issue was discussed in the context of the s.37A application, he had misgivings about that part of question 5 (to which objection was being taken). His Honour told Mr Crafti that he would allow him to ask about the factual elements arising out of question 5, but not about the complainant's belief. Counsel accepted his Honour's informal ruling and proceeded to ask questions in accordance with it.
Later, a like issue arose in relation to question 8 and his Honour made a ruling in relation to it, similar to his ruling in relation to the cross-examination on question 5.
In my view, his Honour's informal rulings were correct, they involved no procedural or other relevant unfairness to the applicant, and consequently this ground must fail.
Conclusion
It follows that, in my view, this application should be dismissed.
WINNEKE, P.:
Whilst I was initially attracted to the contention that the Browne v. Dunn direction which the judge gave to the jury was "over-technical" and may have, in a case where credibility was clearly a central issue, affected the balance of fairness adversely to the applicant, I am not persuaded, upon reflection, that such was the case. Whilst it is true that caution must be exercised in criminal cases by the trial judge before giving such a direction, it is equally true that the trial judge is in a far better position than the Court of Appeal to sense the atmosphere of the trial and to determine whether the excesses of counsel's final comments to the jury beyond what he had been prepared to put to the witness in cross-examination have resulted in unfairness which needs to be balanced.
In this trial the difference between the cases being made by the Crown on the one hand and the accused on the other was clear, but narrow. The accused was contending that, in pursuit of revenge as a "woman scorned", the complainant had deliberately embarked upon a course of fabricating allegations against him because she wanted to hurt him, to provide a basis for achieving compensation from him and because she had developed, through a fragile personality born of childhood events, a bias against all men. On the other hand the Crown contended, through the complainant, that the accused had taken advantage of the complainant's vulnerable position as his patient and had exploited it to the point where she had become thoroughly confused as to his intentions and did not know whether she was his patient or his lover. In seeking to clarify where she stood, she had pestered him to the point where he had become angry and had unlawfully assaulted her.
There seems to have been little doubt that, contrary to his assertions, it was open to the jury to find that the applicant had commenced an inappropriate sexual relationship with the complainant whilst he was treating her, because he conceded that in August 1996 he had written a letter to the Medical Board admitting to "conduct of a sexual nature" with three female patients, one of whom was the complainant, and had further acknowledged that his conduct with those three patients was "inappropriate and contrary to my responsibilities to each of them as a patient".
Having regard to the nature of the competing versions being put by the complainant and the accused, it seems to me that this was a case where the judge was in the prime position to conclude whether counsel was fairly putting the accused's case to the complainant in cross-examination or was merely "dancing around the outskirts" and leaving it to his final address to make his final "strike". The judge took the view that the accused, in the evidence given by him in respect of counts 7 and 8, had spoken of certain telling matters which had not been put to the complainant in cross-examination and that this warranted a Browne v. Dunn direction. In so concluding I think he was correct - and I do not understand that to have been challenged on this appeal. What is challenged is the correctness of the direction in respect of counsel's comments in his final address to the effect that the complainant had lied about the provenance of her contact with a Dr Prager (another treating psychiatrist), that her desire for compensation from the accused was her major motivation for falsely implicating him in the assaults which she alleged and that a further motivation was anti-male bias which derived from the sexual and physical assaults committed upon her as a young child.
Whether an unfairness has arisen in the trial from a failure to put these matters directly to the complainant, as distinct from cross-examining on the factual sub-stratum upon which they were based, seems to me to be something in respect of which the trial judge was in a peculiar position of advantage to gauge in the atmosphere of the trial, particularly having regard to the distinctions being drawn by the complainant and the accused as to the nature and progression of their relationship. For my own part, I am not persuaded that the judge was in error in determining that the directions which he gave were warranted.
Accordingly, in the light of the fact that no complaint is made about the terms of those directions, I would reject this ground of appeal. In any event, notwithstanding that I am conscious of the fact that the credibility of the complainant and the accused was clearly an issue in the trial, I agree with Chernov, J.A. that no substantial miscarriage of justice has accrued to the applicant as a consequence of that direction.
I agree with Chernov, J.A. that none of the other grounds of appeal argued by the applicant in this Court has been made out, and accordingly the application for leave to appeal against conviction must be dismissed.
BROOKING, J.A.:
I agree with what Chernov, J.A. has said and with the additional observations of the President.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against conviction is dismissed.