R v Miles
[2001] VSCA 132
•14 August 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 322 of 2000
| THE QUEEN |
| v. |
| MERVYN EDWARD MILES |
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JUDGES: | WINNEKE, P., BROOKING and BUCHANAN, JJ.A. | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 14 August 2001 | |
DATE OF JUDGMENT: | 14 August 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 132 | |
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Criminal law - Sexual offences against young girl - Last-minute ground raising non-direction as to use of evidence of uncharged sexual acts - Trial conducted by agreement as not raising uncharged acts - No error.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Ms K.E. Judd | Solicitor for Public Prosecutions |
| For the Applicant | Mr P.J. Morrissey | Cahills |
WINNEKE, P.:
I will ask Brooking, J.A. to deliver the first judgment.
BROOKING, J.A.:
Last October, Mervyn Edward Miles stood his trial in Bendigo on 15 serious charges of sexual offences against a young girl, said to have been committed between January 1994 and October 1997, when the girl was aged between about 12 and 15. There were nine counts of sexual penetration of a child over 10 but under 16, one count of attempted sexual penetration and five counts of indecent act with a child under 16. He was convicted on five of the sexual penetration counts (three of penile vaginal, one of digital and one of oral penetration) and on three of the indecent act counts, and sentenced on 12 October to a total effective five years' imprisonment with a non-parole period of three years.
Understandably, he has not complained about the sentence. But he has challenged the conviction. His notice of application contained a single ground, that the convictions were unsafe and unsatisfactory by reason of half a dozen considerations, which mainly concerned the suggested unreliability of the complainant's evidence. But when the applicant's outline of submissions was filed last week that ground of appeal was abandoned. But the attempt to appeal was still to go forward. For two days earlier leave had been obtained from the Registrar to add a second ground to the ground that was about to be abandoned. That second ground runs:
"Ground Two: the learned trial judge erred in his directions to the jury concerning the use to be made of the evidence of uncharged sexual acts, and in particular -
(a)he failed to instruct the jury as to the limited use to which the evidence can be put;
(b) he failed to direct the jury that they should not reason from that
evidence that the Applicant is the kind of person likely to commit the offences charged;
(c)he failed to direct the jury that they must not substitute that evidence for the specific activity charged on the counts in the presentment;
(d)he failed to direct the jury that they should not reason that, just because the Applicant may have done something wrong on another occasion or occasions, he must also have done so on those occasions alleged on the presentment."
To a practitioner from another State - certainly one from New South Wales - it would seem strange that a case should, without difficulty, be stood on its head in this way, at the last minute, without any change in circumstances exposing for the first time some previously hidden defect in the trial. The only change in circumstances, one can legitimately infer, was that new counsel had been instructed and had advised that the sole existing ground had no reasonable prospect of success and that a new ground should be put forward, the ground that the verdict was vitiated by non-direction.
At the trial the judge had abstained from giving the directions now said to have been essential after discussion with counsel for the accused and with his concurrence, and no exception of any kind had been taken to the judge's charge. The abandonment of the original ground of appeal makes it unnecessary to provide any general summary of the evidence, or to discuss the reasons which may well underlie the jury's determination not to convict the applicant on seven counts. Before the jury was empanelled, the judge was told by counsel that there was an issue about evidence of uncharged acts which had to be resolved before the case was opened, but which counsel thought they could themselves resolve. A little later the judge was told that the matter had been resolved, and the trial proceeded. The complainant spent about half of the first day of the trial in the witness box, concluding her evidence-in-chief. On the morning of the second day of the trial the following discussion took place, in the absence of the jury:
"HIS HONOUR: Just before the jury's brought in, there's one matter I'd like to raise with both of you. Can I take it that when it was intimated to me before the trial began that there might have been some issue about uncharged acts, that that was resolved in the way in which the evidence has so far come out, namely that the witness is not, she's spoken more about a relationship rather than giving evidence of any specific non charged acts. Occasionally she's referred to things like, 'He always did this', but that could be taken as being a reference to the other charged acts.
Normally I would of course give the jury a warning, perhaps both in the charge and at the conclusion of the evidence about the limited use to which they could put the evidence of uncharged acts, but I'm assuming unless Mr Willcox in particular wishes to urge me to the contrary, that it's best if I say nothing about it at all, given the very at best vague reference to anything that could be said to be an uncharged act.
MR WEBSTER [prosecuting]: All I can say, my friend will have his reaction to that, but the, when I say 'agreement', the understanding we reached was, there were bound to be things which suggested that it may have happened on other occasions and it was just that I was not going to open that or indeed lead that. Now, I think it's a matter for Mr Willcox, but one would suspect let well alone approach might be the desirable one.
HIS HONOUR: That's the way - - -
MR WILLCOX: I accept that approach, Your Honour. It was agreed between my friend and myself early that there were a number of uncharged acts that were alluded to both in the committal and in the statements and it would appear that my friend has certainly spoken to the witness and we're keeping well away from dancing - as well as we can away from those and any mention of every time it would appear - it appeared to me, Your Honour, that it was other times that were charged.
HIS HONOUR: That's the way it occurred to me, so, yes, thank you. I think we're all on the same wavelength.
MR WILLCOX: Thank you."
On the morning of the third day, again in the absence of the jury, Mr Willcox, counsel for the accused man, sought the exclusion of four questions and answers from the record of interview in which the applicant was asked about the complainant's allegation that he used to put her up on to 44-gallon drums of feed in a shed in his poultry yard and hug and kiss her and feel her breasts. The applicant's counsel said that it had been agreed between counsel that evidence of those questions and answers should not be led. The Crown Prosecutor did not disagree with this assertion. In the course of the discussion reference was made to the agreement that had been reached between counsel, at the outset of the trial, that it was desirable that the judge should not give any directions about uncharged acts. The Crown Prosecutor observed that, if the evidence of the four questions and answers in the record of interview was admitted, that would probably require the giving of a direction about uncharged acts. That part of the record was in fact excluded. Thereafter nothing more was said by counsel to the judge on the subject of uncharged acts or relationship evidence. The judge in his charge gave the jury a "separate consideration" direction, telling them that each count was to be considered only on the evidence which bore on it. He gave the jury no direction about uncharged acts, and, having regard to the course and conduct of the trial, it would have been remarkable if he had done so. His Honour gave the jury a strong direction about the need to scrutinise the complainant's evidence with special care before acting on it. The adequacy of this direction was at no stage during the trial challenged, and is not challenged now. The judge then went on to refer to the extent to which there was evidence which the jury might consider tended to support or confirm the complainant's evidence. At the end of this review, his Honour said:
" Then there was other indirect evidence, again from the Smiths and also from Mrs Dale, about the competition at Shepparton in November 1996. Of course it is not connected with any of the 15 charges with which you have to deal, but there is the evidence of, after a dance, that [the complainant] came and sat between Mr Miles' open legs and threw her head back into his lap. Again, as the cross-examination seemed to indicate, it was [the complainant] who went to Mr Miles, it was not the case of Mr Miles luring her over to him. Again they are matters for you to weigh. And they are just bits of indirect evidence that you may think, or may not think, tends to support and give some credibility to what [the complainant] herself has given evidence about."
This is a reference to a discrete part of the evidence which is now said to have required a direction about the permissible or impermissible use of relationship evidence.
It should be said at the outset that no attempt was made at the trial to exclude the evidence of the Smiths and Mrs Dale about the Shepparton incident, or for that matter any of the other evidence now said to have required a direction about relationship evidence. Moreover, it is not now suggested, and never has been, that any of the evidence now referred to in support of this new ground of appeal was not admissible or ought, on any ground, to have been excluded. In particular, it was not at the trial and is not now suggested that it was not open to the jury to regard the evidence given of the Shepparton incident as having some probative force.
In the circumstances of this case I see nothing to complain of in what the judge said to the jury about the evidence of the Smiths and Mrs Dale. That evidence did not, as it seems to me, despite the submission which Mr Morrissey has made to us, disclose the commission of some other offence. Criticism is now made of the judge's use of the phrase "indirect evidence" in what he said of the evidence of the Shepparton incident, but the charge as a whole shows that his Honour distinguished between direct evidence of the acts charged and indirect confirmatory evidence. It would have been difficult, if not impossible, for the judge to give the guidance now said to have been essential without suggesting to the jury that the evidence went a good deal further than it did, and that it was to be interpreted in a way that was adverse to the applicant. The judge could scarcely have said - to take some of the things it is now suggested should have been inserted into the charge - that evidence that the complainant came and sat between the applicant's open legs and threw her head back into his lap should not be substituted for the specific activity charged in the counts - that was an absurd supposed danger - or that the jury must not reason that, because the applicant may have done something wrong on another occasion, he must also have committed the offences charged. It was the applicant's case that what was spoken of by the three witnesses was entirely innocent behaviour. Attempts to enlarge on what the jury were actually told by the judge might well have tended to confuse the jury, to suggest that the judge thought that they should regard the applicant's conduct on the occasion in question as the making of sexual advances and to give the incident an importance which it did not on any reasonable view possess. I think that Mr Coghlan was right when he submitted that it would have been quite unreal to say to the jury that they should not reason from that episode that the applicant was the kind of man to penetrate or indecently assault the complainant. Moreover, what, if anything, the judge ought to have said about the proper use of the Shepparton incident has to be considered in the light of the fact that he had been clearly told by both counsel, on three occasions, that he should give no direction about uncharged acts.
I turn now from the particular matter of the Shepparton incident to the other parts of the transcript which are now said to have called for appropriate judicial guidance and warnings. It was argued that there was evidence led of uncharged acts, and counsel referred to the following statements in evidence of the complainant:
"Every time I was away with Mr Miles in the car, well, he usually had sex with me, so I was expecting it."
"He always touched my breasts after he kissed me."
"Every time he'd have sex with me he'd push the flaps on my vagina."
"Every time he'd have sex with me he used to say thank you."
"It always starts off kissing and touching the breasts."
In addition, counsel relied on the evidence of Mr Smith that on a different occasion from the one at Shepparton, a Neighbourhood Watch ball, the applicant, in leaning over the complainant and asking her for a dance, had put his hand on her bottom. This, the witness said, had not bothered him. There were, he said, lots of people present including the police, and the applicant's wife could well have seen the incident. I cannot imagine that this evidence played any significant role in the jury's deliberations. If the judge had dealt with it in the way it is now suggested he should have done, the incident might have assumed a quite unwarranted importance and the jury might well have gained the impression that in the judge's view the applicant's behaviour had been not innocent but criminal, or at least most reprehensible. The incident was not mentioned in the judge's treatment of confirmatory evidence for the purposes of the warnings which he gave about the need to scrutinise with care the complainant's evidence before acting on it.
The reliance now placed on the reference by the Crown Prosecutor to "this relationship" in one question cannot advance the case. The jury were not to know what lawyers mean in cases of this kind when they speak of a relationship. They would naturally have taken the words to refer to the relationship over a period of years which, on the Crown's case, was established by the 15 counts.
A few moments ago I set out the pieces of the complainant's evidence which the applicant's counsel assembled as evidence of uncharged acts. An outstanding feature of this trial is, however, that both counsel were firmly asserting to the judge, shortly before the close of the Crown case, and after the complainant had finished giving evidence, that the reason why those four particular questions and answers in the record of interview dealing with an incident in the feed shed in the poultry yard should be excluded, as they indeed were, was that, if evidence of uncharged acts was let in, the judge would probably have to give a direction about uncharged acts. In other words, both counsel were clearly proceeding on the basis that the complainant had not given any evidence of uncharged acts, and indeed that there was and would be no evidence of such acts. This agreed basis was, as I mentioned earlier, the subject of discussion, on the morning of the second day of the trial, in a passage set out above. In this discussion the judge and both counsel accepted that, although the depositions (which are not before us) showed that on the Crown case the applicant had committed a number of sexual offences against the complainant additional to those charged in the presentment, the case could, and should, and would, be conducted on the footing that uncharged acts were not alleged. It was accepted, both by counsel and by the judge, who of course had the benefit of participating in the trial which we do not have, that although on occasions the complainant had in evidence used general expressions suggesting that there had been frequent acts of penetration or indecency, the charged acts were so numerous, there being 15 counts, that the jury would think that she was referring to other charged acts, not uncharged ones. In my view this arrangement was in the interests of the applicant, and his counsel was wise to make it. At the very least, it cannot be denied that the arrangement was one which it was well open to the applicant's counsel to consider to be in his client's best interests. Counsel, being apprised of what was in the depositions, and taking part in the trial, was in a better position than this Court to take the forensic decision on how his client's interests would best be served. The exercise of forensic judgment goes, as has often been said, to the heart of our system of criminal law. The applicant has not been denied, but has through his counsel exercised, his right to a fair trial. The present case is plainly not one of a serious error of judgment, or a serious misapprehension on the part of counsel. Indeed the case lies at the other extreme: the forensic decision taken was not only well open but, although we do not have to go so far as to say this, was in my judgment in fact in the applicant's best interests.
I return to the particular passages in the complainant's evidence now relied on by the applicant and set out above, and to the question what the jury would or might make of them. The applicant faced 15 counts. There were five counts alleging an indecent act, and with the exception of the first, the indecency alleged was the touching of breasts. In these circumstances the complainant's evidence that it always started off kissing and touching the breasts, and that he always touched her breasts after he kissed her, would come as no surprise to the jury, in the light of the presentment and the evidence. There were nine counts of sexual penetration and one of attempted sexual penetration. "Every time he'd have sex with me he used to say thank you" and "Every time he'd have sex with me he'd push the flaps on my vagina" would similarly come as no surprise to the jury, and for the same reason. Then there is the evidence: "Every time I was away with Mr Miles in the car, well, he usually had sex with me, so I was expecting it." This answer, like the other answers now for the first time singled out, must be remembered for what it was: a non-responsive interpolation, early in the complainant's evidence, which was not thereafter referred to in cross-examination or by counsel in their addresses or by the judge. And it should be remembered that cars and motor vehicles figured prominently as the places in which, according to the complainant's evidence, the
various offences were committed. On the Crown case, the scene for count 3 (indecency) was a car; the scene for count 4 (penetration) was a truck; the scene for count 5 (indecency) was a truck; the scene for count 6 (indecency) was a truck; the offence charged on count 7 (attempted penetration) was said to have been committed in a truck; that charged on count 8 (penetration) was alleged to have been committed in a truck; and that charged on count 9 (penetration) was alleged to have been committed in a car which was being done up in a garage. I think the judge and counsel were right in their assessment of the situation as regards how the jury would or might view the complainant's evidence. They were in a better position than this Court to judge of that, since they could judge of the atmosphere at this trial.
In my view there was not in this case any perceptible risk of a miscarriage of justice against which the judge should have warned the jury. Certainly counsel for the applicant saw no such risk. Neither did the judge. The jury's verdict, with its mixture of acquittals and convictions, suggests that the jury heeded the separate consideration direction, and that they were not misled into placing reliance on supposed evidence of propensity.
It will be apparent from what I have said that I find it unnecessary to mention any of the authorities cited by Mr Morrissey, which have been discussed in argument. It is not to be thought that I have not had regard to the authorities cited in reaching my conclusion that this application should be dismissed.
WINNEKE, P.:
For the reasons given by Brooking, J.A., I agree that the application should be dismissed.
BUCHANAN, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against conviction is dismissed.
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