R v N R C (No 2)
[2001] VSCA 210
•26 November 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 234 of 2000
| THE QUEEN |
| v. |
| NRC (NO. 2) |
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JUDGES: | BROOKING, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 October 2001 | |
DATE OF JUDGMENT: | 26 November 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 210 | |
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CRIMINAL LAW – Sexual offences against young child – Re-trial – Whether risk of inability effectively to cross examine child complainant necessarily leads to unfair re-trial – Whether re-trial should be stayed on ground of unfairness – Exceptional circumstances required for such stay – Evidence – Admission on issue of credit of VATE tapes and statements of complainant previously ruled inadmissible – Importance of appropriate directions by trial judge – Use of prior out of court statements to test reliability of evidence – Whether “reliability” includes “credibility”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O.P. Holdenson, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.F. Tehan, Q.C. | Kerry R. Clancy |
BROOKING, J.A.:
I agree with Chernov, J.A.
CHERNOV, J.A.:
The applicant, who is now aged 36, was first convicted on 22 March 1999 in the County Court at Shepparton on one count of committing an indecent act (masturbating) in the presence of a child (the complainant, his daughter who was five years of age at the date of the alleged offending) contrary to s.47 of the Crimes Act 1958, one count of incest (digital penetration of the vagina of the complainant) contrary to s.44 of the Crimes Act, one count of intentionally causing injury (beating the complainant around the ears) contrary to s.18 of the Crimes Act and one count of making a threat to kill the complainant (by holding a knife to her neck and threatening to “cut off her neck” if she complained about the sexual assault) contrary to s.20 of the Crimes Act. As a result, the applicant was sentenced to a total effective sentence of four years and seven months’ imprisonment. The sentencing judge ordered a three year non-parole period.
The applicant appealed to the Court of Appeal against the conviction. The appeal was allowed essentially on the basis that the trial judge had failed to give the jury a warning that it would be dangerous to convict the accused on the uncorroborated evidence of the complainant unless, after thorough scrutiny of that evidence and paying heed to the warning, they were convinced of its truth and accuracy. A re-trial was ordered. The Court of Appeal’s decision is reported at R. v. NRC[1].
[1][1999] 3 V.R. 537.
The applicant was re-tried in the County Court at Bendigo before a different judge at a trial which commenced on 31 July 2000, by which time the complainant was nine years of age. In some respects, the second trial was conducted in a manner different from the way in which the first trial was conducted. For example, at the
earlier trial, the complainant’s evidence-in-chief was given by way of a video recording pursuant to s.37B of the Evidence Act 1958 (“VATE tape”). At the re-trial, however, his Honour ruled that the VATE tape was inadmissible so that the complainant’s evidence-in-chief was given viva voce albeit from a place remote from the courtroom pursuant to s.37C of the Evidence Act. Further, in her evidence at the second trial, the complainant failed to give specific evidence of the circumstances of the indecent act alleged against the applicant or of the injury which, it was alleged, he caused to her ears. Consequently, his Honour directed the jury to acquit the applicant on count 1 (committing an indecent act) and count 3 (intentionally causing injury). Another important difference between the two trials was that at the second trial, the applicant did not give evidence. Otherwise, the evidence at the second trial was substantially similar to that at the first trial. On 17 August 2000, after a re-trial lasting 13 days, the jury returned verdicts of guilty on counts 2 and 4. Following a plea for leniency made on his behalf, his Honour sentenced the applicant to a total effective sentence of four years and three months’ imprisonment. His Honour fixed a non-parole period of three years. The applicant now seeks leave to appeal against conviction on a number of grounds.
Alleged offending
Before considering the grounds of the application I shall set out briefly the circumstances that led to the alleged offending, which was said to have taken place on 6 August 1996. As I have said, the complainant was then five years of age. She lived in Gobur, which is approximately 20 to 30 kilometres from Alexandra in Victoria, with the applicant, her mother, who was his de facto wife, and her three brothers. She was the second youngest of the four children. On the day of the alleged offending, the complainant was driven by the applicant and her mother to the kindergarten in Alexandra at approximately 9 a.m. She remained there until she was collected by the applicant at approximately 1.45 p.m. that day. The evidence of the kindergarten director was that nothing unusual happened to the complainant at the kindergarten.
The complainant said in her evidence that after the applicant collected her at the kindergarten on 6 August 1996, he bought her a bottle of Coke and a lolly in Alexandra. On the way home he stopped at the Yarck Hotel in Yarck, which is not far from Gobur, where he purchased three cans of “Cougar” bourbon and cola and then drove to the Gobur cemetery. As he drove, he drank from a can of “Cougar”. The complainant also alleged that the applicant exposed his penis while driving with the complainant next to him and that he then masturbated. This formed the subject of count 1 on the presentment of which the applicant was acquitted by direction as I have explained.
The complainant further alleged that the applicant drove to the Gobur cemetery where he finished drinking his can of “Cougar” and then threw the empty can over the fence towards the sheep. At the cemetery, after they had unsuccessfully searched for a toilet for the complainant in a small wooden shed (which the complainant described as a “cubby”) in which the applicant broke a ladder, he told the complainant to lie down on the grass outside the shed and to pull off her pants, which she did. According to the complainant, the applicant then put his finger in her vagina, as a result of which the vagina felt sore and started to bleed. This gave rise to count 2 on the presentment. When she protested and began to cry, the applicant hit her about her ears. This alleged act was the subject of count 3 on the presentment in respect of which, as I have said, there was an acquittal by direction. The complainant further said that the applicant told her that if she told anyone what had occurred he would cut off her neck. This threat, however, did not form the basis of any count. According to the complainant, the applicant used his jumper to wipe her vagina and then threw it into a tree near the shed. He then drove her home and in the course of that journey showed her his knife and told her that if she told anybody about what had happened at the cemetery, he would cut “her neck off”. This gave rise to count 4.
When the applicant and the complainant arrived home from kindergarten, there seemed to be no sign of distress on the part of the complainant. Her mother said in her evidence that the applicant had left home to collect the complainant at approximately 1.30 p.m. but did not arrive home with her until approximately 3.35 p.m. Since the time usually taken to drive from home to Alexandra was approximately 20 to 25 minutes, she asked the applicant why it took him so long to return and he said that at that time, the car was not running well and that he could not drive at a speed greater than 50 k.p.h. The complainant’s mother then took the complainant in the car to collect one of her brothers who was to be dropped off by the school bus at the main road. She said that the car was running “OK”. In the evening, the family had dinner and the applicant prepared the complainant and one of her brothers for bed. The complainant said that after undressing her the applicant threw her favourite “Casper” underpants, which had bloodstains, into the fire.
On the following morning, 7 August 1996, as the complainant’s mother was preparing her for kindergarten, she noticed bloodstains on the crotch of one of the pairs of leggings that the complainant had worn the previous day. She asked her whether she had done something to cause the bleeding. The question was prompted by an event that had occurred in January 1995 when the complainant hurt herself by inserting a “texta” pen in her vagina.[2] The complainant answered in the negative and her mother then examined her and found bruises about her ears and at the back of her head. She also looked for the complainant’s favourite underpants which she had worn on the previous day, but could not find them. She asked the applicant about them but was effectively told that he did not know where they were.
[2]This injury occurred at a time when the applicant was away at work and there was no suggestion at the trial (or the re-trial) that this could have been caused by him.
The complainant’s mother then informed the kindergarten that the complainant would not be attending that day and, with the applicant, took their daughter who was still bleeding from the vagina, to a doctor in Alexandra. Since the complainant refused to co-operate, the doctor could not examine her but noticed blood on her vagina and underwear. He alerted the Community Service Department who in turn called the police. As a result, the complainant was taken by her mother, Senior Constable Fiona Stevens and another policeman to the Royal Children’s Hospital where she was examined, but because she was unco-operative, it was not until the following day that she was fully examined albeit under general anaesthetic. The examination showed that she was bleeding from a split in the hymen at a position described as “about 10 o’clock”. In the opinion of the doctor in charge, Dr. Harry, the injury to the hymen was recent and was caused by a “blunt” object which could have been a body part or an inanimate object. The injury, he said, was inconsistent with being self-inflicted.
In cross-examination, the complainant’s mother said that she had lived in a de facto relationship with the applicant for approximately ten years and that it was a stormy relationship during which they separated many times, the longest period of separation being six months. During those times there was a considerable degree of hostility between them particularly during discussions about custody of and access to the children.
Complaint against applicant
After the episode of 6 August 1996, the complainant’s mother and the four children went to live at Frankston with her parents and the applicant had no subsequent contact with the family. A court order was taken out so that he could not contact the children or their mother. At this point, the police suspected the applicant as being responsible for the complainant’s injuries.
It was not until 16 August 1996, however, that the complainant first alleged who caused the injury in question. The mother said in her evidence that, on that day, because the complainant had misbehaved in the car, when they arrived home she told her that if she did not say who had hurt her she would be smacked. The complainant then said “Daddy did it” after which the mother comforted the complainant and told her that she was a “good girl”. She then alerted the police. As a result, two police women came to the house to speak to the complainant, but she did not say anything to them by way of accusation.
On 21 August 1996 the complainant’s mother took her to see Ms Williams, an “abuse counsellor” at Frankston, but the complainant did not say anything of relevance. On the evidence of the complainant’s mother, however, when they got home after seeing Ms Williams, the complainant started “to open up” and, gradually over a period of two hours or so, told her mother about what the applicant had done to her on the day in question, but she did not allege on that occasion that the applicant had, on the way to the cemetery, exposed his penis or masturbated. The complainant’s mother immediately took notes of what she said (and those notes were put to the complainant’s mother in the course of her cross-examination). As the complainant was telling her mother each segment of the events, she passed the information to Senior Constable Stevens who, in turn, relayed it to Sergeant Walls in Alexandra. He and a colleague then drove to the cemetery where they found behind the hut an empty can of “Cougar” lying on the ground. No fingerprints were found on the can. Later, they also found a blue jumper under the trees near the shed which was later identified by the complainant’s mother as belonging to the applicant. No human blood was detected on this jumper. They also found a broken ladder in the hut.
Subsequently, numerous efforts were made by the police to interview the complainant for the purpose of obtaining an evidential record in the form of a VATE tape, but most of the time she refused to co-operate. In the event, on 22 August 1996 policewoman Kerr interviewed the complainant by way of a VATE tape but nothing of relevance was obtained. The police made a similar attempt on 16 September 1996, but again that came to nothing because the complainant would not co-operate. The complainant was also seen on no less than five occasions by Sergeant Walls but she also refused to co-operate with him.
On 23 August 1996 the complainant was interviewed by Ms Williams and that session was recorded on a video film. For the purpose of that interview, the counsellor had organised a game with the complainant whereby she had a number of boxes labelled “Daddy Bear”, “Mummy Bear”, etc. Having been told by the complainant’s mother of her allegations against the applicant, Ms Williams gave the complainant pieces of paper with words such as “This person told me that if you told a secret he would hurt you” or “This person wiped blood off my fanny with his jumper”. Ms Williams asked the complainant to put each piece of paper in the correct box. When she was given the last two-mentioned pieces of paper, she put them into the “Daddy Bear” box. When Ms Williams gave her a piece of paper which said “This person loves me” the complainant put it into the “Mummy Bear” box. Between 21 August and November 1996 the complainant saw Ms Williams on no fewer than 16 occasions but only the interview of 23 August 1996 was filmed. The complainant’s family moved from Frankston to the Shepparton area in late 1996 and between January and June 1997 the complainant was taken to see, on a fortnightly basis, another counsellor in Shepparton. Again, no allegations were made by the complainant to this counsellor implicating the applicant in the offence with which he was ultimately charged.
On 25 October 1996, the complainant made a signed statement to Senior Constable Stevens, who was then not qualified to record VATE interviews, which was essentially consistent with the notes taken by her mother on 21 August 1996. This statement became part of the hand-up brief and was intended to constitute the evidence of the complainant at the committal stage. On 13 February 1997 Senior Constable Stevens took a further statement from the complainant in which she raised for the first time the allegation that the applicant had exposed his penis and masturbated in the car on the way to the Gobur cemetery. This statement also formed part of the hand-up brief. She also said for the first time that the applicant would normally touch her on her “rude part” when her mother was not present, but that he did not do so on the way to the Gobur cemetery.
When the matter came before the Magistrates’ Court at Shepparton on 4 June 1997 for a committal hearing, the complainant’s principal evidence was contained, as I have said, in her statements made to Senior Constable Stevens. At the commencement of the committal hearing, however, the prosecutor requested and was granted an adjournment to enable another attempt to be made to interview the complainant by way of a VATE tape. By this time, Senior Constable Stevens had qualified pursuant to the relevant regulations as a “prescribed” questioner and it was she who, on 4 June 1997, interrogated the complainant and was responsible for the audio-visual recording which ultimately became the complainant’s evidence-in-chief at the first trial.
On 21 October 1997 the applicant was committed for trial and after a number of extensions of time, was tried and, as I have said, convicted on 22 March 1999 in the County Court at Shepparton but that conviction was overturned and a re-trial was ordered.
Stay application
At the outset of the re-trial the applicant’s counsel applied for a permanent stay of the trial as an abuse of process. The application was founded on the claim that, in the alleged circumstances to which I will refer later, a fair trial could not be secured to the applicant. It was also claimed that, because of the time that had elapsed and the circumstances that had occurred since the alleged event, a re-trial would be oppressive. His Honour, however, refused to exercise his discretion to stay the proceeding as an abuse of process.
Exclusion of VATE tape at the re-trial
Before the trial got under way his Honour heard and determined an application by the applicant’s counsel that, in the exercise of his discretion under s.37B(4) of the Evidence Act, his Honour should exclude the VATE tape of the complainant’s proposed evidence-in-chief. His Honour acceded to the application. He considered that, given the circumstances in which the complaint was first made and the number of occasions on which the complainant was interviewed by adults, there was a material risk that apparent adult approval encouraged her to repeat the complaint against the applicant for the purpose of the VATE tape. Moreover, said his Honour, there was reasonable apprehension that the VATE tape procedure was adopted by the Crown to gain a forensic advantage which worked unfairly against the applicant. In any event, said his Honour, the complainant was now of an age when she could give her evidence in the usual way albeit possibly by close circuit television.
Consequently, as I have said, the complainant’s evidence-in-chief was given viva voce but by closed circuit transmission from a place remote from the courtroom. As will be seen later, his Honour later admitted into evidence the VATE tape, and the complainant’s statements of 21 August 1996 and 13 February 1997 (“the complainant’s statements”), as going to her credit.
Grounds of leave application
It is convenient to turn now to the grounds on which the application for leave to appeal was made. In his notice of application for leave to appeal, the applicant listed the following grounds:
1. His Honour erred in not staying the proceeding
2.His Honour erred in allowing the Crown to adduce evidence in the form of the VATE tape and in admitting into evidence the complainant’s statements
3.His Honour erred in directing the jury that certain evidence, which was dependent on the credibility of the witness, was capable of corroborating the evidence of the complainant
4.The verdict was unsafe and unsatisfactory
On 11 October 2001 the Registrar gave leave for the following ground to be added:
5.His Honour failed adequately to direct the jury as to the use of prior inconsistent statements.
Mr. Tehan, who appeared before us for the applicant, elected at the outset of his submissions not to argue ground 3. I turn to consider the submissions he put in support of the other grounds.
Ground 1 – failure to stay proceeding
It will be recalled that, at the outset of the second trial, the applicant unsuccessfully sought an order that the proceeding be stayed on the basis that the applicant would not receive a fair re-trial and that it would be oppressive to subject him to a second trial. Mr. Tehan submitted that, in rejecting the application for the stay, his Honour failed to give sufficient consideration to the circumstances which made it apparent that the applicant would not receive a fair re-trial. Counsel argued that the policy considerations applicable to the exercise of discretion to stay a criminal proceeding that were recognised by the majority in Williams v. Spautz[3] and by the Chief Justice in Jago v. District Court of New South Wales[4] compelled the granting of the stay in this case. [5]
[3](1992) 174 C.L.R. 509 at 520 per Mason, C.J., Dawson, Toohey and McHugh, JJ.
[4](1989) 168 C.L.R. 23 at 33 per Mason, C.J.
[5]The short answer to Mr. Tehan’s submissions in relation to this ground is that, for reasons which become apparent later, the applicant was not denied a fair re-trial contrary to the applicant’s contentions in his other grounds and, therefore, even if his Honour erred in rejecting the stay application, no miscarriage of justice resulted from such error. Mr. Tehan did not, in terms, argue under this ground that the conviction was vitiated by reason of the unfairness of the trial. In view of the way the case was argued, however, I have assumed that the only question under this ground is whether his Honour erred as is contended for by Mr. Tehan.
It seems clear enough that the court has jurisdiction to stay a criminal proceeding where its prosecution will result in the accused being subjected to an unfair trial - Williams[6], Jago[7]. But such a stay will be granted only in the most exceptional or extreme cases - Jago[8]. –and, as Mason, C.J. recognised[9] in that case, in considering whether to exercise the discretion to stay the proceeding, the court has regard not only to the interests of the accused but also to the community’s right to expect that persons charged with criminal offences are brought to trial. His Honour said:[10]
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton[11], per Wilson, J.”
[6]At 518-520.
[7]At 28-31, 33-34 per Mason, C.J.
[8]At 31, 34 per Mason, C.J.
[9]At 33.
[10]At 34
[11](1980) 147 C.L.R. 75 at 111.
Jago was concerned with an application for a permanent stay of the proceeding on the ground that injustice to the accused will otherwise result because of the undue delay in bringing the matter to trial. In that case, Brennan, J. said[12] that one purpose of the power of granting a stay of a criminal proceeding is to ensure that the accused receives a fair trial but “a power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party.” His Honour recognised[13] that more radical remedies may be needed to prevent an abuse of process which, he said, occurs when “the process of the court is put in motion for a purpose which, in the eye of the law, 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.” A little later, Brennan, J. said:
“When the process is abused, the unfairness against which a litigant is entitled 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 is not the law.”
Similarly, in Williams – a case which was concerned with criminal proceedings that were issued for an ulterior purpose – Mason, C.J. Dawson, Toohey and McHugh, JJ. said[14] that the court will not grant a stay of the proceeding on the ground that the trial will be unfair to the accused unless it is shown that there are no available means, such as a direction to be given by the trial judge, of ensuring a fair trial to the accused. For reasons given later, it is my view that his Honour did not err as is contended for by the applicant. It was apparent when the matter was considered by the trial judge that there were means available to ensure that the applicant would receive a fair re-trial.
[12]At 46-47
[13]At 47-48.
[14]At 521.
The circumstances which Mr. Tehan claimed showed at the relevant time that the applicant would not receive a fair re-trial and which, he said, the trial judge failed sufficiently to take into account, were these. First, it was submitted that because of the complainant’s age and her likely demeanour during cross-examination at the re-trial, the applicant would be deprived of the ability effectively to cross-examine her so as to demonstrate the unreliability of her evidence. Reliance was placed on the recognition by the President in NRC[15] that there were many features of the complainant’s evidence which might have been effectively challenged or tested by cross-examination at the first trial if a realistic opportunity for it had been available to the applicant. Counsel said that the unfairness that thus faced the applicant in respect of that trial was recognised by Winneke, P. in NRC[16]. It was argued that it was apparent at the outset of the re-trial that a like position would prevail at the second proceeding. Similarly, it was claimed, because the complainant could not be effectively cross-examined at the first trial, the applicant would be deprived of the opportunity of demonstrating inconsistencies between her evidence then and at the re-trial. Further, it was said for the applicant, it was obvious at the outset of the second hearing that there was a real risk that the complaint in this case was not spontaneous and that the complainant’s mind was contaminated by constant and frequent interrogations about the incident by adults. Counsel said that, because the initial complaint to the mother was in response to a threat of punishment, there was a real prospect that she told her mother what she believed her mother wanted to hear and that thereafter, the constant questioning of her by adults created a belief in her mind that the repetition of her initial version of events would gain their approval. Further, it was said, by the time of the re-trial, the complainant was nine years of age and was thus better able to give her evidence and cope with cross-examination than she was at the first trial. It was claimed that this was another example of unfairness pertaining to the second trial. Given the combination of these circumstances, said Mr. Tehan, it was apparent that the applicant would not receive a fair re-trial and in refusing to grant the stay, his Honour erred in not giving sufficient weight to these matters. Moreover, said Mr. Tehan, given the lapse of time between the two trials and the time that had elapsed since the alleged offending, it was oppressive to compel the applicant to face a second trial.
[15]At 551, 553-554.
[16]At 551.
In my opinion, however, it was plain at the relevant time that any risk that the applicant might not receive a fair re-trial because of the matters to which Mr. Tehan referred, could be met by an appropriate direction of the trial judge. That this is so was effectively recognised by Winneke, P. in NRC[17] and moreover this is what in fact occurred in the course of the second trial. It is evident from his Honour’s charge, to which I will turn later when considering the applicant’s arguments under ground 4, that he gave the jury a strong and reasoned corroboration warning and pointed out to them the difficulty faced by the applicant’s counsel in cross-examining the complainant having regard to her age and demeanour. It is also relevant to bear in mind that the VATE tape procedure by which the complainant gave her evidence-in-chief at the first trial and which the President in NRC considered worked a degree of unfairness to the applicant, was ruled inadmissible by his Honour at the outset of the re-trial. As I have said, the complainant gave viva voce evidence in chief at the second trial. Furthermore, the fact that the complainant was a year older since the first trial clearly could not have worked a relevant unfairness to the applicant. Similarly, there is nothing in the claim that, because the complainant could not be effectively cross-examined at the first trial, the applicant would be unfairly deprived at the retrial of the opportunity of demonstrating inconsistencies in her evidence. This particular argument is, in any event, based on the unestablished assumption that cross-examination of the complainant at the re-trial would have established such inconsistencies. But even if there was prejudice to the applicant because of the difficulty of cross-examining the complainant, that was met, as I have said, by the judge’s relevant direction to the jury. Moreover, as Mr. Holdenson for the Crown pointed out, the applicant’s counsel did not renew the application for a stay at the conclusion of the complainant’s evidence.
[17]At 550.
Thus, since it was apparent at the outset of the second trial that there were available means to ensure that the applicant would receive a fair re-trial, his Honour did not err in refusing to order a stay of the proceeding. I also cannot accept the contention of the applicant that the passage of time since the applicant’s alleged offending, a re-trial would be oppressive.
For these reasons, ground 1 must fail.
Ground 2 – wrongful admission of VATE tape and complainant’s statements
As originally formulated, ground 2 alleged that his Honour erred in allowing the Crown to tender during the course of the re-trial, the VATE tape of 4 June 1997. At the hearing before us Mr. Tehan applied, without objection from Mr. Holdenson, for leave to amend this ground by adding the claim that his Honour also erred in allowing the Crown to tender the complainant’s statements. In the particular circumstances of this case, the Court granted Mr. Tehan leave to make the amendment sought and I now turn to consider the applicant’s submissions in support of ground 2 as amended.
I have already mentioned briefly the circumstances in which his Honour ruled that the VATE tape and the complainant’s statements could be adduced into evidence by the Crown. It will be recalled that it was part of the defence case which was effectively put to the complainant’s mother during her cross-examination, that it was she who had induced the child to adopt the (false) version of events which became her allegation, and then her evidence, against the applicant. For the purpose of cross-examining the complainant’s mother, the applicant’s counsel had tendered in evidence the video film of the complainant’s consultation with Ms Williams on 23 August 1996 and the two unsuccessful VATE tapes of 22 August and 16 September 1996. In view of the contention by the applicant that it was the complainant’s mother who had fabricated the allegations and instilled them in the mind of her daughter, the Crown was given leave to adduce the complainant’s statements and the VATE tape of 4 June 1997 for the purpose of supporting the complainant’s credit.
In a carefully worded ruling, his Honour said that, although the evidence that was sought to be adduced included prior consistent statements of the complainant and was, therefore, prima face inadmissible, the cross-examination of the complainant’s mother plainly put in issue the process by which the complainant was induced to provide an account of her allegations. The learned trial judge considered that, once the subject of the complainant’s mental process was open for consideration by the jury, the whole of the process and the various interrogations which may have operated upon the child’s mind, should be placed before the jury for their consideration. His Honour said that unless that were done, legitimate speculation might arise as to the extent to which there has been further manipulation of the complainant (after the first trial) in order to produce the relatively coherent account given by her at the re-trial. Thus, his Honour concluded that the evidence in question had substantial relevance on the issue whether the complainant’s account was truthful or was a product of manipulative suggestion of others. His Honour also said that he bore in mind that he had given directions to the jury as to the proper use of prior statements by the complainant and was confident that the jury thoroughly understood them and would abide by them. In the circumstances, he gave the Crown leave to adduce the evidence in question.
In my view, in so ruling, his Honour did not fall into error. It was argued by Mr. Tehan that the applicant’s counsel had not “in terms” opened up the admissibility of those items of evidence. It was said that trial counsel confined his allegations to the assertion that the mother was working off a “script” and that he cross-examined upon the counselling sessions “and the events up until that time” only. Mr. Tehan argued that, therefore, the evidence in question was not admissible and in any event, it was not admissible through Senior Constable Stevens.
It is clear from the transcript, however, that the applicant’s counsel cross-examined the complainant by reference to the VATE tape and to each of her two statements and that a number of alleged inconsistencies were put to her. Similarly, it is apparent that Senior Constable Stevens was cross-examined in relation to a number of alleged inconsistencies in those statements. Moreover, the relevant attack on the mother was not so much that she worked off a “script”, but that she had “programmed” the complainant to make those allegations against the applicant. Further, the expert called by the applicant gave opinion evidence in the context of having read the two statements and having reviewed the VATE tape.
In those circumstances, it is clear enough that the material was properly admitted as going to the complainant’s credit. Moreover, given his Honour’s full warning to the jury as to the dangers of acting upon the evidence of the complainant and as to the limited extent to which they could use her prior statements and the VATE tape, it was not unfair to the applicant to allow them to be admitted into evidence. Further, it was appropriate to tender the material through Senior Constable Stevens.
Consequently, this ground must also fail.
Ground 4 – verdicts unsafe and unsatisfactory
Mr. Tehan next argued that the nature and quality of the evidence were such that the jury, even if properly instructed, could not have been satisfied beyond reasonable doubt as to the guilt of the applicant. In support of this claim, counsel pointed to a range of circumstances which, he claimed, showed up the unsatisfactory nature of the evidence. For instance:
(a)The complainant gave no evidence in support of count 1 (indecent act – masturbation in the car) and count 3 (intentionally causing injury – beating around the ears at the cemetery) notwithstanding her allegation that such offences took place.
(b)On at least ten occasions during the cross-examination of the complainant on alleged inconsistencies between her evidence and out of court statements (and other evidence) the complainant did not respond or merely said that she could not remember.
(c)In addition, Mr. Tehan pointed to 16 topics that were raised with the complainant during her cross-examination and upon which she gave no responsive answer or said she could not recall.
Other unsatisfactory aspects of the complainant’s evidence, according to Mr. Tehan, included the following:
(a)The complainant admitted that she was wrong when she had said that both gates of the cemetery were big enough for a car to be driven through.
(b)The complainant had alleged that the applicant placed her against the cemetery wall and threatened her and said he would tie her up and go home whereas in cross-examination, she admitted that the cemetery did not have a wall and that she meant that the applicant had put her up against the wall of the shed.
(c)The complainant said in her statement to Senior Constable Stevens on 25 October 1996 that she did “a wee” in the “cubby” (at the cemetery) and that the applicant had placed a finger under her and licked off the urine but in the VATE interview she said she forgot what had occurred in the cubby.
There were other matters that occurred at the trial, said counsel, which demonstrated the “unsatisfactory” nature and quality of the complainant’s evidence. They included the following:
(a)On some occasions, his Honour had to explain to the complainant that the applicant’s counsel was contending that what she had said was inconsistent with his instructions.
(b)The complainant had to be frequently reminded that if she could not remember a matter she should say so.
(c)Counsel for the applicant had to request the complainant on a number of occasions to answer the question.
(d)The complainant did not identify in her evidence the jumper, the Cougar can or the broken ladder, yet the items were left to the jury as evidence capable of corroboration.
(e)Mr. Tehan claimed that the re-examination of the complainant was rendered ineffective because she either said “I cannot remember” or “I don’t know”.
In my view, however, notwithstanding this criticism of the complainant’s evidence, looking at the whole of the Crown evidence and the circumstances in which it was given, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the two counts in question[18]. In so far as Mr. Tehan has sought to demonstrate lack of credibility in the complainant and her mother, they were obviously issues that were within the province of the jury and it could not be said that they had to resolve them in any particular way. It was open to them, for instance, to have considered the Crown evidence in the context of the alternative case which was sought to be presented by the applicant. They could have rejected the applicant’s case as lacking any credibility and, therefore, they could have more comfortably accepted the complainant’s version of events as supported by the corroborative evidence to which I will refer shortly. In essence, it was the applicant’s case that the allegations against him were the figments of the imagination of the complainant’s mother who had implanted the false allegations in the mind of the complainant. Such conduct, it was said, was pursued by her in order to prevent the applicant getting custody of the children and to avoid her being investigated by the Department of Human Services for not properly looking after the complainant. A necessary part of that case was the contention that the complainant’s mother “planted” or caused to have “planted” at the cemetery the applicant’s jumper and the can of “Cougar”. But even if were possible to conclude rationally that the mother placed those items in the cemetery in order to “frame” the applicant, it was almost impossible for a jury, acting reasonably, to come to the view (and this was not suggested to them by the applicant’s counsel) that the broken ladder was placed in the “cubby house” by the mother and then recounted by her to the complainant so as to ensure that she mentioned it in her account of the events at the cemetery. In any event, the applicant’s case was not supported by any evidence. He stood mute and no evidence of any record of interview with investigating police was led on his behalf. Hence, it was well open to the jury to reject the applicant’s suggested course of events and consider the complainant’s evidence in that context.
[18]M v. R. (1994) 181 C.L.R. 487 at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.; Jones v. R. (1997) 191 C.L.R. 439 at 450-451 per Gaudron, McHugh and Gummow, JJ.; NRC at 555 per Winneke, P.
Next, even though aspects of the complainant’s evidence to which Mr. Tehan referred were, in one sense, “unsatisfactory”, as the President pointed out in NRC[19], any disadvantage to the applicant arising from this could be effectively remedied by a proper direction to the jury rather than treating the evidence as being so unreliable that a jury acting reasonably were bound to acquit.
[19][39-40].
As I have already explained, the learned trial judge at the second trial gave a strong and reasoned direction to the jury that it would be dangerous to convict the applicant on the uncorroborated evidence of the complainant unless they were satisfied, after a close examination of it, of its truth and reliability. His Honour then carefully and fully explained what evidence, if accepted by them, may be regarded by them as supporting that of the complainant. More particularly, his Honour said that there were four areas of evidence that were capable of amounting to corroboration and that these were the only matters which they were entitled to consider as possibly supporting the evidence of the complainant.
(a)If they believed that the accused did not return from the kindergarten until approximately 3.30 p.m. (that being the evidence of the complainant’s mother) the jury could use that as corroborating the complainant’s account of stopping at the Gobur cemetery. His Honour emphasised that, in the context of considering the time when the applicant returned from the kindergarten in the afternoon with the complainant, the jury had to be satisfied that the complainant’s mother was telling the truth about the matter.
(b)The fact that the complainant’s favourite underpants were never found could be used by the jury as corroborating her account that they were thrown into the fire by the applicant. Whether the underpants were missing depended on the acceptance of the evidence of the complainant’s mother. His Honour said that the jury would have to consider whether she disposed of the underpants either because they were bloodstained or in order to implicate the applicant. In that context, the jury might well ask the question, would it not have been more implicatory to have kept them?
(c)If the jury accepted Dr. Harry’s evidence that the injury to the complainant’s hymen could only have been caused by a blunt instrument such as a body part or an inanimate object and that it was inconsistent with having been self-inflicted, the jury could use that evidence as corroborative of the complainant’s account of how she came by the injury by reason of the applicant having put his finger in her vagina. His Honour reminded the jury that it was for them to assess the extent to which they were prepared to rely upon Dr. Harry’s opinions, particularly as to the possibility of accidental or self-inflicted injury.
(d)If the jury accepted the evidence that the police found an empty can of Cougar, the applicant’s blue jumper and a broken ladder at the cemetery, the circumstances of finding all those items could be used as corroborating the complainant’s story which involved each of them being at the place where she was assaulted. The jury were told by the trial judge that the evidence of the objects found by the police at the cemetery had to be viewed by them in the context of the possibility that they may have been planted there to implicate the applicant. His Honour also reminded them that no blood was found on the jumper and that the forensic evidence was that it could well have been washed away by the rain and that there was evidence that at the time of the year in question, it was very wet.
Mr. Tehan was critical of his Honour’s direction that the above evidence could be used by them as supporting the complainant’s version of events. He pointed to the following:
(a)First, he said that there was no evidence of any bloodstains found on the jumper.
But lack of blood on the jumper was addressed by the forensic evidence and by his Honour in his charge. Ultimately, it was a matter for the jury whether they accepted the evidence of the complainant’s mother that it was the applicant’s jumper and the complainant’s evidence that the applicant had used it to wipe the blood off her vagina and then threw it into a nearby tree.
(b)There were other matters which, counsel said, went against the strength of the suggested corroborative evidence. Mr. Tehan argued:
-there was no evidence of bloodstaining in the applicant’s car or in the grassed area at the Gobur cemetery
-the finding of the broken ladder was in the circumstances weak corroborative evidence
-there was no forensic evidence connecting the Cougar can to the applicant; nor did the examination of the shed show a connection with him.
It is obvious enough that in the course of the trial these matters were brought to the attention of the jury and it was for them to decide what to make of such criticisms.
(c)It was further claimed that the complainant’s evidence as to the burning of the underpants was unsatisfactory.
But again, there was evidence that they were the complainant’s favourite underpants and that they could not be found on the day after the alleged offending, leading to the possible view that may have been adopted by the jury that it was unlikely that she would have burnt them and it was open to them to accept her mother’s evidence that the underpants were never found.
(d)Mr. Tehan also argued that Dr. Harry’s evidence as to the tear in the complainant’s hymen did not indicate the cause of the injury.
It was nevertheless open to the jury to accept his opinion that it was unlikely that the injury was self-inflicted and that it was consistent with it having been caused by a body part (like a finger).
As I have said, these matters were no more than reasons why the jury might not have accepted the evidence which his Honour identified as possibly supporting the complainant’s version. But it could not be said that these factors operated so as to compel a rejection of all such corroborative evidence.
Nearly all of Mr. Tehan’s criticisms of the complainant’s evidence was capable of forming the basis of an attack on the complainant’s credibility in the broad sense of that term and, therefore, it was a matter proper for the consideration of the jury. In considering whether the verdict was unsafe and unsatisfactory, the court cannot disregard or discount either the fact that the jury was the body entrusted with the primary responsibility of determining the applicant’s guilt or innocence, or that they had the benefit of having seen and heard the witnesses: M v. R.[20]. To the extent that the complainant’s demeanour at the trial worked an unfairness to the applicant that was, as I have said, met by his Honour’s direction to which I have already referred. Consequently, in my opinion, there was sufficient evidence for the jury, properly instructed and acting reasonably, to convict the applicant – Gipp v. R.[21]
[20]At 493.
[21](1998) 194 C.L.R.. 106 at 123 per McHugh and Hayne JJ. (who dissented as to the final outcome of the case but not on the applicable principle) citing M. v. R.. (1994) 181 C.L.R. 487 and Jones v. R. (1997) 191 C.L.R. 439.
There may be another compelling reason why the applicant’s claim that the verdict is unsafe and unsatisfactory must be rejected. It was common ground before us that the Crown evidence at the re-trial was substantially the same as that which was adduced by it at the first trial. It will be recalled that this Court in NRC held that, in the context of that evidence, the verdict was not unsafe and unsatisfactory. Consequently, it was said by Mr. Holdenson, the applicant’s attack on the verdict at the second trial under cover of this ground amounts to an impermissible collateral attack on the earlier decision on this issue in NRC. In support of this argument, Mr. Holdenson relied on the decision in Re Coombes[22]. There is, in my view, much force in this submission, but it is unnecessary finally to determine it given my conclusion that Mr. Tehan’s argument should be rejected for the reasons I have given earlier.
[22][1985] 1 N.Z.L.R. 318 at 320.
Ground 5 – failure to direct adequately on prior statements
It was contended for the applicant under cover of this ground that, in directing the jury how they could properly use the complainant’s earlier out of court statements, his Honour failed to tell them that they could be used to test the “credibility” of the complainant at the trial and that this failure constituted a misdirection. His Honour dealt with that issue on two occasions. First, in the course of his cross-examination of the complainant’s mother, counsel for the applicant sought to play to the jury a tape of Constable Kerr’s interview of the complainant on 22 August 1996 on the basis that this was a prior inconsistent statement of the complainant. Before that occurred, his Honour explained to the jury that what the complainant said before the trial could not be regarded by them as being her evidence at the trial. The judge said that the only basis upon which such earlier evidence was put before them was for the purpose of enabling them to test whether what the complainant said was reliable. In the context of giving the jury an example of how a prior inconsistent statement could be used by them, the judge said that they could use it to “test her reliability or credibility”. Next, in his charge, his Honour again explained to the jury the limited basis on which they could use the complainant’s prior statements. He again said that they were not to be used by the jury as her evidence but that they could be used to test its reliability. His Honour explained that those statements have been introduced for two legitimate reasons. First to enable the jury to trace the course of preparation of the complainant’s questioning which preceded and which was the basis of the evidence she gave in court. Secondly, it enabled the jury to “test her evidence in court to see if it was consistent or inconsistent with what she had previously stated”.
Mr. Tehan, however, contended that the directions were inadequate in that they did not tell the jury that they could use the statements to test the “credibility” (meaning, the untruthfulness) of the complainant. It was claimed that his Honour had impermissibly limited the use of the prior inconsistent statements to testing the complainant’s “reliability” which may not involve assessing the truthfulness or otherwise of her evidence. In support of his argument, Mr. Tehan relied on what Gibbs, J. said in Driscoll v. R.[23]. He also submitted that the difference between “credibility” and “reliability” was recognised in Morris v. R.[24].
[23](1977) 137 C.L.R. 517 at 535-537.
[24](1987) 163 C.L.R. 454 at 462-466 (Mason, C.J.) and 474 (Deane, Toohey and Gaudron, JJ.).
In my opinion, however, this submission should be rejected. Although the meaning of “reliable” will vary with the context in which the word is used, ordinarily, when used to describe a witness or the evidence of a witness, “reliable” conveys the meaning that the witness was truthful and had a sufficiently accurate recollection of the events in question. It is plain that a witness cannot be considered “reliable” if he or she was untruthful (notwithstanding that the witness can be unreliable even if he or she was truthful). Thus, in R. v. Brotherton[25] Hunt, C.J. at CL quoted[26] a jury direction given by the trial judge which relevantly used “reliability” in this sense. So far as is relevant, the direction was in the following terms:
“When you come to look at the evidence, what you really need to do in relation to each particular witness is ask yourselves how reliable is what that witness has said, and I think you will find, if you think about it for a moment, that reliability really rests on two pillars. The first is honesty. Was the particular witness that you are considering doing his or her best to tell you the truth, the whole truth and nothing but the truth? The second pillar is accuracy. How accurate is the evidence of the particular witness? Now, a witness can be as honest as the day is long and yet hopelessly inaccurate. We all have different powers of observation. We all have different powers of recollection. You have to assess in relation to each witness how honest was that witness, how accurate was that witness."[27]
It seems to me that, on a fair interpretation of what his Honour relevantly said to the jury, they would have understood him to have used “reliability” in the above sense so that they were entitled to use the complainants prior statements to test the veracity and/or the accuracy of her evidence in court.
[25](1992) 29 N.S.W.L.R. 95.
[26]At 97-98.
[27]This part of the direction was not subject to criticism by the Court of Appeal, although a passage immediately thereafter was the subject of a challenge on grounds which are not relevant for present purposes.
Furthermore, the authorities on which Mr. Tehan relied do not support his argument. Neither Gibbs, J. in Driscoll (nor their Honours in Morris) sought to give “reliability” a meaning so as to exclude the consideration of the witness’s truthfulness. So far as is relevant, Gibbs, J. in Driscoll dealt with two points. The first was the submission that, on the authority of the Court of Criminal Appeal in Reg. v. Golder, Jones and Porritt[28], the trial judge had misdirected the jury because he failed to tell them that, because of the witness’s prior inconsistent statements, they should regard her as an unreliable witness. (This was notwithstanding that the jury were told that the witness’s prior inconsistent statements were not the evidence of the witness at the trial and that they could only use them to weaken the evidence given by her in court.) His Honour distinguished[29] what he called the dicta in Golder and said that it was not imperative for the trial judge to tell the jury on every occasion where the witness has made a prior out of court statement that was inconsistent with the evidence given by the witness in court that, for that reason, the witness was unreliable. His Honour acknowledged that in certain circumstances it might be appropriate to tell the jury that the witness was unreliable. Such a warning would be justified, his Honour said, where, for example, the court has concluded that that was the effect of the previous statement on the value of the evidence given by the witness in court. In other words, where the prior statement makes it clear in all the circumstances that the evidence of the witness at the trial was unreliable it may be appropriate for the judge to make a comment to that effect. Such considerations, however, do not arise in this case. Secondly, Gibbs, J. recognised[30] that it was well settled that “the previous statement is admitted on the issue of credibility, and is not evidence of the truth of the matters stated in it”. The reason why this must be told to the jury by way of a direction, his Honour said, was that, unless explained, they might not appreciate the limited use to which such statements can be put. His Honour went on to say that the whole purpose of contradicting a witness by proof of the inconsistent statement was to show that the witness was unreliable. It is apparent that his Honour was using “unreliable” as embracing both lack of accuracy and untruthfulness. Thus, there is no support in Driscoll for Mr. Tehan’s arguments. Similarly, there is nothing in what Mason, C.J. and Deane, Toohey and Gaudron, JJ. respectively said in Morris to support Mr. Tehan’s argument on this issue. Consequently, this ground must fail.
[28](1960) 45 Cr.App.R. 5 at 11.
[29]At 536-537
[30]At 536
I note that the applicant’s experienced counsel at trial took no exception to this aspect of the charge and it may be fairly assumed that he considered that, in the atmosphere of the trial, it did not produce any relevant unfairness to the applicant. In those circumstances, it seems to me, unless it can be established that the alleged error has led manifestly to a miscarriage of justice, the applicant should not be permitted to rely on this ground – Crampton v. R.[31]; R. v. Gallagher[32]; R. v. Clarke and Johnstone[33]. It is true that, as Mr. Tehan submitted relying on Omarjee v. R.[34], mere failure to take exception may not be fatal to the success of an application for leave to appeal, but as the Court of Criminal Appeal in that case acknowledged, that is so where the interests of justice require that the objection, albeit raised for the first time on appeal, should be considered. I doubt whether that is the situation here. Be that
[31](2000) 75 A.L.J.R. 133 at 136-137 per Gleeson, C.J.; 162-3 per Hayne, J.
[32][1998] 2 V.R. 671 at 681 per Brooking, J.A.
[33][1986] V.R. 643 at 662 per Crockett, McGarvie and Southwell, JJ.
[34](1995) 79 A.Crim.R. 355 at 371.
as it may, it is not necessary to decide this point given my conclusion that, for other reasons, this ground must fail.
Conclusion
For these reasons it is my view that the application for leave to appeal against conviction should be dismissed.
VINCENT, J.A.:
I agree that the application for leave to appeal against conviction should be dismissed and for the reasons advanced by Chernov, J.A. in his judgment.
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