R v Huynh
[2006] VSCA 213
•13 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 35 of 2006
| THE QUEEN |
| v. |
| LINH QUOC HUYNH |
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JUDGES: | CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 August 2006 | |
DATE OF JUDGMENT: | 13 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 213 | |
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Criminal law – Appeal against conviction – False imprisonment – Whether verdict unreasonable or could not be supported having regard to the evidence – Evidence of proximate complaint wrongly admitted on false imprisonment count – Whether “wrong decision of any question of law” or “miscarriage of justice” – Whether Palmer direction required – Adequacy of directions regarding elements of false imprisonment – Crimes Act 1958, s.568(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms A. Cannon Solicitor for Public Prosecutions |
| For the Respondent | Mr S. Gillespie-Jones with Mr D.J. McSteen | Paul Vale Criminal Law |
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by Coldrey, A.J.A. I agree with his Honour, substantially for the reasons he gives, that grounds 1, 3 and 4 fail. The standard direction on the elements of false imprisonment may not be adequate in every case, but it was sufficient in this case[1].
[1]See [88] below.
That leaves ground 2. The impugned portion of the charge and the introductory passage are set out at [62] below. Mr Gyorffy conceded that the evidence of complaint was not admissible in relation to the count of false imprisonment. The Court intimated that it was readily prepared to accept that concession, at least for the purposes of this case. It is therefore unnecessary to consider whether a wider view was taken in some of the cases that were cited and whether that view is sustainable.
There is little doubt that the jury would have understood her Honour’s direction as meaning that that evidence could, in principle, be used to test the complainant’s consistency in relation to both the counts that they were considering. The question is whether, that being so, the misdirection involved a “wrong decision of a question of law” or a “miscarriage of justice” within the meaning of the opening words of s.568(1) of the Crimes Act 1958. If that question is answered in the affirmative, I would not apply the proviso.
A clear example of a wrong decision of a question of law is a wrong decision on the admissibility of evidence following an objection by counsel. A clear example of a miscarriage of justice is a defective Edwards direction omitting guidance that it was important for the jury to have. The misdirection with which we are concerned seems to fall half-way between those examples. As a matter of law, the evidence was not admissible. On the other hand, there was no “decision” of a “question” except in the sense of a decision, that was not challenged, to charge the jury in those terms.
Not without hesitation, I have concluded that there was neither a wrong
decision of a question of law nor a miscarriage of justice. The essential vice in the charge was a mistake about the admissibility of the complaint evidence. The best analogy is with inadmissible evidence to which no objection is taken.[2] That rarely, if ever, gives rise to a wrong decision of a question of law. Whether it amounts to a miscarriage of justice is a question of degree. The error here was not so material as to satisfy that description.
[2]Sometimes that is by inadvertence, but very often it is deliberate. A great deal of hearsay, for example, is, quite sensibly, received without objection.
For these reasons I, too, would refuse the application for leave to appeal against conviction. It is unnecessary to say anything about the other presentment, or the summary charges, on which the applicant was sentenced at the same time.
REDLICH, J.A.:
The learned trial judge gave the jury directions as to the elements of false imprisonment which closely followed the model direction from the 1995 Criminal Charge Manual. That direction is set out at paragraph [82] of the reasons for judgment of Coldrey, A.J.A. which I have had the advantage of reading. The direction uses the word “compel” in dealing with both the external element of the offence of false imprisonment and the element of the necessary mens rea.
The elements of the offence of false imprisonment were considered at length in the leading Victorian case of R. v. Vollmer.[3] As the authorities therein discussed reveal, the essence of the crime is the intentional deprivation of the victim’s liberty. It is sometimes expressed as restraint of the liberty of another person against their will.[4] Arguably, to “compel” someone to remain in a particular place or to go to a particular place does not necessarily involve restraint of the person’s freedom of movement or that it be against their will. A person may, by persuasion, be compelled to remain in or go to a particular place though it could not be said that
they had been subjected to restraint or deprived of their liberty to go where they wished.
[3][1996] 1 V.R. 95 at [175]-[188] per Ormiston, J. with whom Southwell and McDonald, JJ. agreed.
[4]R. v. Garrett (1988) 50 S.A.S.R. 392; R. v. Rahman (1985) 81 Crim.App.R. 349 at 353.
In the present case the trial judge’s direction made plain that the compulsion must be such as to deprive the victim of her freedom to go where she wanted and no complaint was made as to the adequacy of the direction. In my view it would be preferable if the term “compel” were not employed in the direction even when it is made clear that the offender must by his or her conduct deprive the victim of their freedom to go where they want.
For the reasons given by Coldrey, A.J.A., I, too, would refuse the application for leave to appeal against conviction.
COLDREY, A.J.A.:
On 24 January 2006 Linh Quoc Huynh (the applicant) was found not guilty by a jury of one count of indecent assault. He had previously been found not guilty, by direction of the trial judge, of one count of abduction to take part in an act of sexual penetration, one count of abduction of a child under the age of 16 years with intent to take part in an act of sexual penetration, one count of taking part in an act of sexual penetration with a child under the age of 16 years and one count of indecent assault. All the offences were alleged to have been committed on 30 December 2004 upon the complainant (who I will also refer to as "C") who was, at the time, aged 10 years. The applicant was, however, convicted of one count of false imprisonment. It is against that conviction that he now seeks leave to appeal.
In an amended notice of application filed by leave of the Court the following grounds were set out:
"1. The conviction is unsafe and unsatisfactory.
2. A miscarriage of justice was occasioned:
(a)by the admission of complaint evidence on count 3 [false imprisonment];
(b)by the direction of the learned trial judge as to the complaint.
3. A miscarriage of justice was occasioned by:
(a)the learned trial judge failing to direct as to the consequences of a rejection of the motive to lie put forward by the accused;
(b)failing to give a Palmer direction.
4. The learned trial judge erred in failing to direct as to:
(a) consent;
(b) withdrawal of consent in relation to false imprisonment."
In order to give these grounds a context it is necessary to summarise the facts surrounding the commission of this offence.
The evidence in chief of C was given by way of VATE tape. In it she described the applicant, whom she had never seen before, talking on a public phone while she walked up and down outside it. It is clear from the police evidence, to which I will refer in some detail later, that the public telephone box where the complainant encountered the applicant was on the eastern side of McIntyre Road, North Sunshine just south of the intersection with Warwick Road. Subsequently, the applicant ask her if she would like a lift home. C's account on the tape was that she declined the offer but was forced across the road, tripping on the gutter before being pushed into the applicant's Mitsubishi station wagon. She described the applicant putting a seat belt on her and activating a child lock. The latter activity prevented her getting out of the car which she had wanted to do. C described the applicant driving off with her and, at some stage, stopping the vehicle. She asked to get out of the car but the applicant had said: "No, just wait five minutes." She said that the car had stopped near a Sunsmart sign.
The effect of C's account was that, at this time, the applicant touched her "rude spot" (vagina) on both the outside and inside as well as feeling her right breast. On her version of events this activity was accompanied by conversation of a sexual nature. Ultimately, the applicant drove off and let her out of the car near some shops. Thereafter she walked home. She thought that she had been driving around for about half an hour.
In a description of how she left the applicant's vehicle, C claimed to have grabbed the car keys when the applicant was not looking, unlocked the child lock and, after exiting the vehicle, thrown the keys into the car through the front passenger window.
On the way to her home, C encountered her 9 year old friend Chantel Brown, with her sister Jessica and brother Nathan. They asked her what was wrong. She replied: "I'm scared. I've been in this person's car. … He pushed me in there. He touched my rude spot." Chantel had responded: "You're a liar" but Jessica and Nathan had believed her. They told her to come home and tell her mother. The police had then come to her house and her mum had come out "crying and scared."
In cross-examination the complainant agreed that she had her mother's permission to go only as far as the house of her friend Adilia, some three doors away in Compton Parade. When Adilia was not home she had, despite her mother's prohibition, crossed McIntyre Road to use the public telephone to ring another friend Melissa. Being told by Melissa's father that she could not come over and play, C was returning home when she met another friend who lived in Bradman Avenue (which intersects with Compton Parade). After playing with her for about half an hour, she returned home.
On the first occasion she was at the telephone box C said that she had seen the applicant but had not spoken to him. The witness said she had asked her mother‘s permission to go and phone her friend Chelsea and, with her consent, she had returned to the telephone box about 11.30 a.m. The applicant was again using the telephone and she stood waiting until he left the booth before ringing Chelsea. She spoke to Chelsea but did not ask her to come over.
C said that Chelsea lived near Melissa. The latter resided in Perth Street and it appears that Chelsea lived in a street which intersected with it. On the basis of a Melways map of the area this location was a distance of approximately one and a half kilometres south west of the phone booth in McIntyre Road.
C reiterated that after she finished the phone call the applicant had asked her [sic] for a lift home and she had said: "No." She reaffirmed her evidence of having been pushed across the road and falling over. She stated that the applicant had then grabbed her hand and pushed her into the car. C conceded that she had never previously mentioned the second journey to the public phone to ring Chelsea, but said this was because she was too scared to tell the lady conducting the VATE interview. C went into further detail about her encounter with the applicant. He had asked her: "Hey would you like a lift home?" She had replied: "No." She described being grabbed by her shoulders from behind and the applicant pushing her lightly across the road. She was half running. The witness conceded that she had given evidence [at the committal proceedings] that she was pushed hard by the applicant but said that she had been confused at the time. C said that she didn't scream and that the applicant had not had his hand over her mouth. She did not scream because there were too many people around.
Despite her attention being directed to the evidence of a police observer that she was not pushed, she maintained that this had occurred although she agreed that she had not been pushed into the car but had got into it herself. C said that the applicant closed the car door, she put on the seat belt and he went around the back of the car and got in his side. She reiterated that she could not get out of the car because he had put the child lock on. She said he could put the child lock on from outside the car.
C also said there was no sticky tape on the seat belt. She had previously said that the applicant taped the seat belt before he closed the door and she was screaming a little bit and struggling. She did not see him tape up the seat belt as she was looking out the window but she heard him do it. There was not a lot of sticky tape but there was enough that she couldn't get the seat belt off. It was a clear colour and was situated down by the belt buckle.
C said that what she had said about the sticky tape being on the seat belt [at the committal proceedings] was true but she had forgotten about it in giving her evidence on this occasion. C also said that she didn't tell the police about the sticky tape because she was scared.
The witness agreed that she thought she would get into trouble with her mother for getting into the man's car. Her mother had told her not to do that using the words "stranger danger" to her.
C stated that the applicant did not tell her where he was going. She maintained that she had told him that she wanted to go home. She denied telling him that she wanted to go to her friend's house and she also denied pointing down the road to where her friend lived; telling her that some police had seen her point would not change her evidence.
The witness conceded that some of the things she said in court were wrong. It was possible that the man did not push her across the road. It was also possible that she did point outside the telephone box and that she had forgotten. However, it was not possible that the man did not touch her in the car.
C agreed that the applicant made a number of left and right turns in the vehicle but denied the proposition that this was because she was trying to direct him to where her friend lived. The following allegation was put to her[5]:
"Q.The man was confused about where you wanted to go. So he stopped the car and he said, 'Look, either you know where you're going or you don't,' or words to this effect, 'or I'm going to drive you straight back to where we started from.' Does that ring any bells? Do you remember that?
A. No."
[5]T.126
I interpolate that in this cross-examination the name of any specific friend was not advanced. Further, the path taken by the applicant's vehicle, as described by the Surveillance Unit police, was, on the basis of the complainant's evidence, in the opposite direction from where her friends Melissa and Chelsea resided.
C confirmed her evidence of being touched by the applicant when the vehicle had stopped near the Sunsmart sign. He had touched her around the vagina. Earlier in cross-examination the witness had retracted her allegation that the applicant had put his finger insider her vagina. When she had said this on the VATE tape she was confused and scared. She maintained, however, that the applicant put his hand under her dress when touching her vagina. This was inconsistent with her evidence at the committal proceedings where she had stated that this touching had involved the applicant putting his hand between her legs on top of her dress. In explanation the witness said that she had been scared and confused when giving evidence on the previous occasion.
C also retracted her allegation that the applicant had touched her "on the boobs."
The witness was again questioned about the sticky tape and she deposed to the applicant having removed it while the car was being driven. At the committal proceedings C had claimed she removed the tape but she asserted the correctness of her current version of events.
In re-examination C said she could not remember where the car went, but she was told the man's age as being 24. He had asked her what her name was, how old she was and whether she had a boyfriend or not. At one stage the witness said she could not remember the car being stopped when she was in it, but when further questioned, she said that the man had touched her when the car was stopped at the fence where it said Sunsmart. When the man had dropped her off he had said: "Take care."
Chantel Brown, who was 9 years old, and described the complainant as one of her friends, also gave evidence by VATE tape. In essence, she spoke of observing C get out of the applicant's car and run up to her crying. C told her:
"… That he came up to her and grabbed her, and pulled her into the car, and she tried to scream, but he covered her mouth with his hands. And that he touched her fanny and boobs."[6]
[6]Q.19 & 20
The complainant's mother, GW, deposed to her daughter telling her she was going to Adilia's house which was about 200 metres away from her home at 22 Compton Parade. Her daughter left about 11.05 a.m. and she actually observed her enter Adilia's house. Her daughter returned about 11.20 a.m. but left on a second occasion, about 12.00 midday, to return to her friend's house. Ms W said she next saw her daughter at 12.45 p.m. when she returned home in the presence of Chantel and a police officer. The witness said she went straight up to her daughter and asked her what was wrong. C stated that a man had taken her and touched her in places pointing to her breasts and lower parts. Ms W was asked:
"Q. How would you describe her emotional state at this time?
A. I've never seen her that distraught in my life.
Q. What was it about her that causes you to say that?
A.She was in tears, she was shaking like a leaf and she … couldn't get out words properly.
Q.… after she told you what happened did she say anything to you about being in trouble?
A. Yes …
Q. What did she say?
A. She kept asking me, 'Mum, am I in trouble …?'
Q. Can I ask you this: does she have some intellectual incapacity?
A. Yes, she does.
Q. How far behind is she at school?
A. Two years behind."[7]
[7]T.138-139
In cross-examination Ms W agreed that she had made it clear to her daughter that she should go no further than Adilia's house. She was not permitted to go up to McIntyre Road, far less to cross it. The witness said that she had always warned her daughter about "stranger danger" and also, "don't get into a man's car, don't get in someone's car."[8]
[8]T.147
In re-examination the witness stated that she had asked C if what she was telling her was the truth. C had basically yelled at her: "No mum, I'm not making it up, it's the truth."[9]
[9]T.147
The jury had before it independent evidence from a number of police witnesses who were members of a Surveillance Unit. The major aspects of that evidence (which was not always easy to follow) may be summarised as follows.
Sergeant James Barry observed the applicant in the McIntyre Road telephone box when the complainant approached. She entered the booth after the applicant had left it. Three minutes after exiting the phone box at 12.36 p.m. she and the applicant crossed McIntyre Road from west to east. Prior to this he had observed the complainant point in a southerly direction. His first impression was that she was giving directions. (The evidence is silent, however, as to whether this was in the general direction of her house, or that of her friend's.)
The witness observed no touching, holding hands, pushing or dragging. From his vantage point some 80 metres south (and where the shops were situated) he was not able to see the couple enter the applicant's vehicle.
Evidence of both persons walking east across McIntyre Road independently was also given by Senior Constable Ian Watson. A bush prevented his observation of the complainant entering the applicant's station wagon. It seems, on his evidence, that the vehicle was parked in Warwick Road near the McIntyre Road intersection.
The course of the vehicle thereafter is taken up by various police officers. Their observations are contained in a surveillance log which was tendered as an exhibit.
In summary form the vehicle was described as travelling east in Warwick Road before turning right into McLeod Street and south to Rufford Street. It next travelled west in Rufford Street to Holehouse Street, then south to Suffolk Road. The vehicle travelled east in Suffolk Road to Cumberland Road before turning left and continuing in a northerly direction, and returning to Warwick Road. In Warwick Road the vehicle turned left and travelled west to Northumberland Road, south to Suffolk Road once again, before turning left and travelling east to enter Cumberland Road yet again. From this point the vehicle travelled north up to Bedser Street, entering it via a left hand turn and travelling west into Ferndale Road at its intersection with Northumberland Road. At Harley Street the vehicle turned left and continued south to Warwick Road. After travelling west in Warwick Road for a short distance, the vehicle turned south in Fawcett Street. At the southern end of this street the vehicle turned left into Downing Street then continued for a short distance in an easterly direction. It stopped on the northern side of Downing Street between Fawcett and Braim Streets.
On the northern side of the street, the vehicle was adjacent to high side fences, whilst the south side of the carriageway was bounded by the empty playground area of the Sunshine North primary school. (It was school holidays.)
According to the surveillance log, the applicant's vehicle was stationary at this location for about four minutes. The photographs of the scene, tendered in the trial, indicate a Sunsmart sign displayed prominently on the high cyclone wire fence surrounding the playground area.[10]
[10]Exhibit C2 photo 19
At 12.55 p.m. the applicant's vehicle drove off turning left in Braim Street and left into Warwick Road before stopping again between Compton Parade and McIntyre Road. The complainant was seen to alight quickly from the vehicle . She was described as appearing disorientated and confused. She had been in the applicant's car for about 15 minutes.
Subsequently, the complainant was intercepted by Detectives Lawrence, Sorell and Glenister from Altona North CIU. She initially stated that she had not been with anyone. Later, according to the police evidence, when she was in the presence of her friends, including Chantel Brown, the complainant, at Chantel's urging, stated: "He took me in his car and touched my rude bits. …" She indicated her breast and vagina area. At this point the complainant became distressed, commencing to cry.
For completeness I should add that the evidence of Dr Edwina Montgomery, a consultant paediatrician who examined the complainant, was that there was nothing observed to either support or refute the allegation of sexual assault.
At the completion of the Crown case, and as a result of the retractions made by the complainant in the course of her evidence, the trial judge directed the acquittals to which I have earlier referred, on counts 1, 2, 4 and 6. In general terms these concerned the abduction of the complainant for the purpose of sexual penetration, digital sexual penetration, and the indecent assault relating to the touching of the complainant's breast. This left count 3, false imprisonment, and count 5, the indecent assault constituted by the touching of the outside of the complainant's vagina.
At the request of the applicant's counsel, a Prasad invitation[11] was given to the jury. The jury responded by indicating that they wished the case to proceed on the two remaining counts.
[11]R. v. Prasad (1979) 23 S.A.S.R. 161
In challenging the conviction for false imprisonment on the basis that it was unsafe and unsatisfactory, it was submitted on behalf of the applicant that, apart from the complainant's prior inconsistent statements in relation to both sexual penetration and the touching of the breast, there were discrepancies between her evidence at the committal proceedings and the trial as to whether the applicant put his hand on the top of, or under, her dress when touching her between the legs. Moreover, the account of being manhandled across the road and into the applicant's vehicle was directly contradicted by the independent police evidence. Indeed, contrary to her assertion on the VATE tape, the complainant had conceded in cross-examination that she had not been pushed into the car by the applicant. Further, the objective evidence contradicted each of her differing versions about sticky tape having been placed on her seat belt.
Finally, there was the circumstance which the complainant faced of having to explain her conduct in going to McIntyre Road against her mother's express wishes and, thereafter, taking the further forbidden step of getting into a stranger's motor car.
The jury were, of course, well aware of these discrepancies in the complainant's evidence, and it is trite to state that the jury were entitled to accept or reject any parts of it. Clearly, the acquittal on count 5 indicates a failure to be satisfied beyond reasonable doubt of her assertion of the indecent assault.
The Crown case on the case of false imprisonment was put on the basis that the victim wished to go to her home and not where the applicant took her. In her evidence on this point, the complainant never wavered and she denied the proposition advanced in cross-examination that she wanted to go to her (unspecified) friend's place.[12]
[12]T.117
Additionally, she denied that the applicant's peripatetic driving was the product of her giving him directions in an effort to find the place where her friend lived. (Of course the applicant never drove anywhere near her friend's Perth Avenue residence).
It was submitted that the independent contradiction of the complainant's evidence that she was effectively forced into the Mitsubishi vehicle cast doubt on her assertion that she had wanted to go home. The jury, having had the advantage of seeing and hearing the complainant, was well able to assess her reliability on this aspect of the Crown case. It was, for example, open to them to conclude that this young girl, with some intellectual difficulty, was lured into the applicant's car for a purpose other than taking her the short distance to her home. This is particularly so having regard to the surrounding circumstances of an adult who was a complete stranger to the 10 year old child taking her in his motor car by an erratic route to an area protected on one side by a high fence and bounded on the other by an empty school yard and stopping the vehicle there for about four minutes. Further, the jury may well have concluded that any lies by C about the manner in which she came to enter the applicant's vehicle were attributable to her mother's prohibition of such conduct.
As I have already indicated, the complainant did not agree that the applicant stopped his vehicle because he was confused about where she wanted him to go.
None of the puttage by the applicant's trial counsel was forensically successful in producing any evidence contradicting those parts of the Crown case which founded the charge of false imprisonment. Nor was there any evidence from the applicant to explain the asserted act of altruism vouchsafed to this young stranger.
The law applicable to the ground that a verdict was unsafe and unsatisfactory is tolerably clear. It has been recently restated by Eames, J.A. in R. v. CHS[13] in these terms:
"In assessing whether a guilty verdict was unsafe (or, more accurately, was unreasonable and cannot be supported by the evidence) the appeal court must make it own assessment of the evidence – making allowance for the limitations of not having seen the witnesses - and determine whether in its opinion the accused was proved beyond reasonable doubt to have been guilty of the offence on which the jury convicted him. It is an objective task, to assess whether on the whole of the evidence on the count the court is satisfied that no substantial miscarriage of justice has actually occurred."[14]
[13](2006) 159 A.Crim.R. 560 at 587; see also M v. The Queen (1994) 181 C.L.R. 487 at 493 and Weiss v. The Queen (2005) 80 ALJR 444 at 454 at [41]-[43].
[14]M v. The Queen (1994) 181 C.L.R. 487 at 493; Weiss v. The Queen at [41]-[43].
In summary, in the instant case it was open to the jury to accept the complainant's unshaken evidence that her presence in the car was predicated upon her being taken home taking into account the nature of the relationship of the parties; the independent observation of the applicant's driving, and the lack of any evidence providing an innocent explanation for the sequence of events.
For these reasons it cannot, in my view, be concluded that the jury verdict was unreasonable and devoid of evidentiary support. Accordingly, this ground must fail.
I turn next to ground 2. I have already detailed the evidence constituting complaint given by C and Chantel Brown[15]. It was, of course, admissible to bolster the credit of the complainant on count 5 (indecent assault) by demonstrating consistency. It was not, as the Crown conceded, admissible on count 3 (false imprisonment). The trial judge failed to make this distinction clear in her charge. The relevant portion of the charge is quite lengthy but I quote it in full to place this failure in context:
"As to evidence of complaint, in this case the Crown relies on the evidence of [C] and Chantel Brown that [C] made a complaint in relation to the allegations which are the subject of this trial a short time after the alleged incident on 30 December 2004, and I will read that evidence, and I will explain why it is entitled to be led, because it is clearly hearsay, as I have directed you. I will go into that.
[C] said in her tape before you, 'Then he dropped me off home and I walked home by myself. Then I went to my friend's house, Chantel, and I told her about it. Then she called me a liar, then Jessica came and she blamed me [sic][16] and then she told me to go home, then I did, then the police came.' That is what [C] said in her VATE tape.
Now Chantel said this happened outside her home, and I will re-read what I have just read to you and go a bit further. She was asked, 'And what did [C] say to you?' 'She said that he came up to her and grabbed her and pulled her into the car and she tried to scream but he covered her mouth with his hands and that he touched her fanny and boobs', and she said what colour the car was and what colour T-shirt and pants he was wearing and she went on further with some descriptions, but that was the complaint made to Chantel and she said she was just outside the front of her house.
Now the evidence of complaint by [C] is allowed to be put before you as an exception to the rule which governs what is admissible in evidence, which I have referred to earlier in the trial as hearsay evidence. The evidence is allowed to be given in order to test the consistency of the conduct of the person making the allegation, and in this case it is [C].
You should apply your own views of the evidence of the witness. It is for you to say in the circumstances whether you accept that she did make such a complaint, and if you accept that she did whether the fact that she did make a complaint constitutes behaviour consistent or inconsistent with the allegations. You should bear in mind that the evidence of the complaint comes from the same source as the evidence of the allegation, that is [C]. It may or may not demonstrate consistency, but it is important that you do not regard it as independent of her evidence, giving additional support to the probability that the offence occurred. Its only effect is upon consistency of conduct by her. It is not evidence of the truth of the contents. It is evidence that it was said by her."[17]
[15]See paras 7 and 24
[16]On the basis of the VATE tape, this should be "believed me".
[17]T.278-279
In my view, this misdirection had no relevance whatsoever to the ultimate decision making process of the jury.
Even assuming that the jury accepted the complainant’s own evidence and that of Chantel Brown as to what was said by the complainant, the jury clearly did not act upon any of the sexual references. By this stage of their deliberations the complainant had already withdrawn the allegation that the applicant "touched her … boobs" and the relevant count had been the subject of a directed acquittal. By the verdict of acquittal on count 5, the jury had also declined to act upon the evidence of the complainant that the applicant had "touched her fanny …" It follows that, insofar as this portion of the complaint was designed to demonstrate consistency, it had failed. The second aspect of the initial complaint made by the complainant involved her evidence of being pushed into the applicant’s car together with Chantel Brown's evidence of the complainant's account which was of her being grabbed, her mouth covered, and being pulled into the car by the applicant. As I have already made clear, this was quite contrary to the evidence of the independent police observers. Indeed, in her cross-examination the complainant had conceded the possibility that she was wrong about the applicant pushing her across the road.
In the circumstances it is inconceivable that the jury would have regarded either the complainant's own evidence or the evidence of Chantel Brown as to the complainant’s account of how she was placed in the car, as evincing consistency in her evidence relating to the false imprisonment charge.
No objection was taken to the trial judge's charge on this issue. This may have been an oversight by counsel, but if so it was an understandable oversight. It was understandable because, realistically, the complaint about manhandling to the vehicle had no capacity whatsoever to demonstrate consistency in the complainant's account.
Accordingly, I regard the trial judge's error as immaterial. Indeed, I adopt with gratitude, and without repetition, the legal analysis of this matter set out in the judgment of Callaway, J.A.
Accordingly, in my view, ground 2 must also fail.
The principles applicable to ground 3 are well known. What is often referred to as the rule in Palmer's case or the Palmer direction, was enunciated by the High Court in R. v. Palmer[18]. In a joint judgment, Brennan CJ, Gaudron and Gummow JJ quoted with approval the statement of Hunt CJ at CL in the New South Wales case of R. v. Uhrig[19] in which he stated that posing the question as to why a particular witness would lie,
"invites the jury to speculate … to the conclusion that unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not have been raised in such a case."
The joint judgment continued, expressing the view that:
"… a complainant's account gains no legitimate credibility for the absence of evidence of motive. This credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished."[20]
[18](1998) 193 C.L.R. 1 at para. [9]
[19]Unreported, Court of Criminal Appeal (N.S.W.) 24 October 1996 at [15]-[16]
[20]Ibid para. [9]
In his judgment[21] Kirby J accepted the proposition that:
"… where the accused puts forward, by evidence or submission, a proposition that a witness vital to the Crown case has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the impugned witness was necessarily telling the truth. It would remain for the prosecution to satisfy them the witness was truthful."
[21]See [38]-[39]
These propositions have been the subject of comment in a number of Victorian cases. For example, in R. v. Russo[22] Nettle J.A. (with whom Winneke, P. and Charles, J.A. agreed) stated:
"The decision in Palmer was concerned with questions asked of an accused as to what might be the motives of Crown witnesses to give false testimony against the accused. The rationale of the decision was that questions of that kind are improper because they invite the jury to speculate about witnesses’ motives for lying and to assess the likelihood of those motives and, since an absence of a plausible explanation for lying is not proof that there is no motive for lying, that is to invite a jury to speculate about unproven facts. A second reason underlying the decision was that such questions are unfair, because the accused cannot be expected to see into the mind of Crown witnesses and be held accountable for an inability to discern whatever motive there may be for a false story. A further and fundamental consideration was that the effect of such questions is to reverse the onus of proof by implying that unless the jury is satisfied that the Crown witness is a liar, they should convict.
Since Palmer was decided it has been held that the rule which it laid down is in some cases capable of applying as much to questions posed in final address as it is to questions put in cross-examination."
[22](2004) 11 V.R. 1 at paras. [36]-[37]
As the authorities also make clear it is not every case in which the jury is urged to reject a specific motive to lie on the part of a complainant that a Palmer direction is required.[23]
[23]See, for example, R. v. PLK (1999) 3 V.R. 567 at paras. [1]-[16] per Tadgell, J.A. and paras. [22]-[28] per Charles, J.A.; and R. v. Cupid [2004] VSCA 183 at para. [3] per Ormiston, J.A.
In the instant case there was no direct cross-examination addressed to this issue. It was dealt with in passing in the prosecutor's final address as follows[24]:
"Now, don't forget the mother has said that she's instructed the child about stranger danger and don't forget also – and my learned friend will probably say, 'Well, that's the reason for her to tell lies' – she knew she shouldn't have got in that car and possibly knew as soon as she was in it that she shouldn't be in it, if not before. The defence say, that's a reason why she'd make things up because she thought she was in trouble.' But you just ask yourselves, here you are, you have a child, the child's from time to time at school and while the mother has instructed about stranger danger – and I think it was a pre-school, the mother said, that they taught them there not to get into cars."
The prosecution went on to submit that the complainant did not present as a person making up lies.
[24]T.4
Defence counsel put to the jury that the complainant was either lying or fantasising.[25] He later addressed the matter in these terms:
[25]T.12
"It's an intellectual exercise that you're being asked to undertake, and that's the test: 'Am I satisfied beyond reasonable doubt?' The minute a reasonable doubt is in your mind – over, come out and go home. That means, for example, I don't have to show motive as to why she may have been lying; whether she's a malicious little girl or not, doesn't matter.
I don't have to show what really happened that day. I don't have to show a motive as to why she may have been fantasising. All the stuff about, 'Maybe you thought you were going to get into trouble with your mum … and that's why you had to explain what you were doing in the man's car maybe you made this stuff up because you didn't want to admit that you got in the man's car' – all that stuff, yes, that's an idea. You might have a dozen others. It's just an idea that's just one of them. But even that idea or that suggestion of what might have been going on doesn't have to be proved on that.
This is the test that you have to apply, not find out why would this young girl have done this. You don't have to come to any conclusion about that. There is no onus on him or me to prove anything – nothing. But if by way of my cross-examination or whatever you end up thinking that you have some reasonable doubt about what C is saying happened really happened – over, that's it, over."
Later again counsel submitted[26]:
"She was lying to you about being pushed across the road, of course she was for whatever reason. Remember, who cares. You don't need to figure out why and I don't need to explain why. Who cares why she was lying? The way that you use that evidence is to figure out whether you're left with a reasonable doubt about what she's saying. If you have a reasonable doubt about that, then you can have a reasonable doubt about everything that she says, the whole kit and caboodle."
[26]T.19
Finally, in the context of the removal of the sticky tape from the seat belt, defence counsel remarked[27]:
'Pure fantasy, complete and utter rubbish, garbage. Either that or lies, whatever, whatever you want to say. I don't know, sometimes it might be fantasy, sometimes it might be outright lying. Who knows and who cares? Unreliable, doubtful, you must have a reasonable doubt about everything this young lady says. Remember when you go in there to deliberate, after her Honour has charged you, please remember what I've said to you about the test: are you satisfied beyond a reasonable doubt that what she's telling you about not being allowed out of the car and about being touched in the vaginal area is something you can be satisfied about beyond a reasonable doubt?"
[27]T.23
What is immediately apparent from the passages quoted, is that the furthest the prosecution went was to comment that the defence may raise a motive for the complainant to lie. The defence, on the other hand, eschewed motive as irrelevant and relied upon contradictions and inconsistencies in the complainant's evidence.
All this is a far cry from the factual situations in the cases cited where it was held that the jury should have been given a Palmer direction. In Palmer's case itself the accused was cross-examined as to whether he could suggest any reason why the complainant would invent allegations against him. In PLK, the complainant's motive to lie was raised in the accused's record of interview; it was, thereafter, the subject of specific cross-examination of the complainant; and it was emphasised in the prosecutor's final address. In Cupid's case the complainant, in the course of cross-examination, was effectively provoked into asking the rhetorical question "Why would I lie?" - a theme which was taken up by the prosecutor in his final address. Finally, Russo's case featured the prosecutor's repetitious query to the effect that if it was not the applicant who had murdered his parents, who was it?
In the present case the trial judge was not asked to give a Palmer direction. That in itself suggests counsel did not regard any question of the complainant's motive as assuming significance in the jury's deliberations. Moreover, in my view, it is apparent from the verdict of acquittal on the count of indecent assault that the jury did not approach their task by rejecting any suggested motive on the part of the complainant to lie, and thereafter unreservedly accepting her evidence.
In her charge, the trial judge dealt clearly with the onus and standard of proof. She also touched briefly on the matter of motive in stating[28]:
"The Crown rely on the immediacy of her conduct, her presentation and what she said. The defence take issue and say that what she said was untrue. It has been put on behalf of the accused that it is hard to identify her motive and there is no onus on the defence at all. He is presumed innocent. Maybe she told lies out of concern because she got into a man's car, of her mother dealing with her, or maybe it was the fantasy of a young girl."
[28]T.279-80
Given the manner in which the issues were joined in this case, I do not regard a Palmer direction as having been necessary and, accordingly, this ground must fail.
The final ground related to the judge's charge to the jury on the count of false imprisonment. In particular, it was asserted that, in light of the complainant's consensual entry into the applicant's car, the judge should have specifically directed the jury in relation to concepts of consent and withdrawal.
The trial judge's charge was in the traditional form. Having read out the count on the presentment namely: "That Linh Quoc Huynh at Sunshine in the said State, on 30 December 2004, unlawfully imprisoned [C] and detained her against her will", her Honour continued:
"To imprison a person is to deprive that person of her freedom of movement from one place to another. It may consist of compelling her to remain in a particular place, or compelling her to go to a particular place. In either case, she is being deprived of her freedom to go where she wants. Now of course in this case it straddles the two because the Crown case is that she was kept in the car and they were going away from where she wanted to go.
In order to prove this crime, the Crown must prove three things. One, that the accused so acted as to compel [C] to remain in his car, and two, that the accused did that deliberately, and that is the state of mind, intending so to compel her; and three, that the accused had no lawful excuse. Now that element on the facts in this case will not trouble you as the defence of lawful excuse has not been raised by the accused.
I will go over that again, and I must say whenever I say 'prove' I always mean 'beyond reasonable doubt'. So the ingredients of this case are to be proved beyond reasonable doubt, one, that the accused so acted as to compel [C] to remain in his car, and two, that the accused did that deliberately, intending so to compel her."[29]
[29]T.287-288
In seeking to impugn this direction, the applicant's counsel relied upon R. v. Vollmer & Ors.[30], particularly the analysis of false imprisonment by Ormiston J, with whom Southwell and McDonald JJ agreed.[31] In essence, his Honour distilled from a myriad of authorities the proposition that false imprisonment was constituted by the intentional and unlawful restraint of the liberty of another person against that person's will.
[30][1996] 1 V.R. 95
[31]pp.175-188
It seems to me that the trial judge's directions encompass the above formulation. There is the reference to imprisoning of the complainant against her will; depriving her of her freedom to go where she wants; and, importantly, intentionally compelling her to remain in the car.
It may be conceded that the issue was not whether the victim entered the applicant's car voluntarily. The overwhelming evidence was that she did so. The issue was whether the jury could be satisfied beyond reasonable doubt that the complainant entered the applicant's car for the purpose of being taken home and whether, thereafter, the applicant deliberately deprived her of her freedom by driving her elsewhere in his motor vehicle against her will.
The prosecution contention was succinctly set out by the trial judge[32]:
"The Crown case, and the way the Crown puts its case in relation to that evidence, that the accused was 15 minutes in the car with the girl from 12.41 to 12.56, you can see on that log. On behalf of the Crown it is put that the accused and [C] were in his car and driving for that amount of time and she was not allowed to get out. Notwithstanding she said that she wanted to go home. The Crown rely on the fact that the accused took her on a circuitous route which the Crown says supports her evidence and that with reference to the map they went east, whereas her home was west of where they ended up and so were her friends.
That she got in the car in McIntyre Road and was going away from her home and the friend's home, that it was put on behalf of the Crown is [sic] that the accused went in that direction and kept her in the car, committing the offence of false imprisonment because he was going to a secluded area in a suburban location, the Sunshine North Primary School, which is a school in a holiday period because his intention was, or his motive for falsely imprisoning her was to interfere with her sexually in a secluded location."
[32]T.289-90
The defence case[33] was that there were just too many inconsistencies in the complainant's evidence to enable satisfaction beyond reasonable doubt of her account of events.
[33]See T.291-292
There may well be cases where a more elaborate direction on the elements of false imprisonment is necessary, but this was not one of them. Certainly, defence counsel sought no re-direction on the elements as formulated by her Honour.
For completeness I should add that it was also argued on behalf of the respondent that, in any event, lack of consent would be a necessary inference in this case because of the complainant's age. In this regard reliance was placed on the English case of R. v. D[34]. Given my conclusions it is unnecessary to consider the applicability to Victorian law of the principles enunciated in that case.
[34][1984] 1 A.C. 778 at 806
The end result is that the application for leave to appeal against conviction should be refused.
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