R v O P M
[2009] VSCA 165
•24 July 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 924 of 2007
| THE QUEEN |
| v |
| OPM |
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JUDGES: | VINCENT and NEAVE JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 June 2009 | |
DATE OF JUDGMENT: | 24 July 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 165 | |
JUDGMENT APPEALED FROM: | R v OPM (Unreported, County Court of Victoria, Judge Murphy 4 December 2007) | |
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CRIMINAL LAW – Conviction – Application for leave to appeal – County Court jury found the applicant guilty of one count of unlawfully committing an indecent act against his daughter – Offence witnessed by the complainant’s mother, who was also the applicant’s wife – Evidence of uncharged acts – Whether judge failed to properly direct the jury in relation to the facts, the prosecution and defence cases and the evidence – Admissibility of evidence that the applicant had committed indecent acts against the complainant in the past – Whether judge erred in failing to give any direction on complaint or on witnesses’ competing versions of events – Whether conviction unsafe and unsatisfactory – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr S Gillespie-Jones | Stidston & Williams Weblaw |
VINCENT JA
I have read the draft judgment of Neave JA and agree that the application should be refused and that the appeal against conviction be dismissed for the reasons given by her Honour.
NEAVE JA:
INTRODUCTION
The applicant, OPM, was found guilty by a County Court jury of one count of unlawfully committing an indecent act with a child under the age of 16.[1] The victim of the offence was the applicant’s daughter, OKP, who was aged nine when the alleged offence occurred. The applicant now seeks leave to appeal against that conviction.
[1]Crimes Act 1958 s 47(1).
The Crown case was that the offence occurred when the applicant and the complainant were lying outside on the pool deck of their home. It was alleged that the applicant put his hand down the complainant’s underpants and touched her ‘on top of’ her vagina. I refer to this below as ‘the pool deck incident’.
The Crown called the complainant and her mother, OSM, as witnesses. The applicant called his adult daughter from an earlier marriage as a character witness. He made no comment in his police interview and did not testify at trial.
THE EVIDENCE
The mother’s evidence
In her evidence-in-chief, OSM said that on 12 March 2006 she was gardening on the other side of the house from the pool and then went inside. When she looked
through the dining room window she saw the applicant lying on the pool deck with the complainant lying with her back on his torso. The applicant had his left hand ‘around across’ the complainant and his hand in her underpants. About half his hand was visible and the part of his hand in her underpants was on top of her vagina. The applicant and the complainant were lying a couple of feet from the window.
When OSM saw what her husband was doing she bashed on the window and yelled out. She then went out the door to the pool deck. She could not remember precisely what she had then said, but her daughter responded by saying that she ‘didn’t realise it was wrong, that he’d done it many times’.
OSM said that she had probably briefly spoken to the complainant then, but she did not want to ‘blow it up to be a big scary thing’ for her and waited to ‘talk with her alone in an opportunity as soon as [she] could after the incident, but in a calm way’.
OSM spoke to the complainant later in the evening when she was in bed and said that:
I had a talk with her about how it was wrong what her dad did and to let me know if this ever happened again and that I was there for her and she could tell me anything.
The following exchange then occurred.
COUNSEL:That’s what you said to her. Did she respond in any way?
WITNESS:That’s when I believe she confirmed that he’d done it a lot and that he used to rub her tummy a lot and then she said he was very sneaky with it – that his hand would be on her tummy and then it would be in her underpants. I asked her if he’d done anything else and she said no.
OSM said that after her daughter went to bed she spoke to the applicant about what she had seen and he told her he would ‘not do it again’. She had rung Lifeline the following morning. When her husband had asked her whom she was talking to and she told him, he said that she had ‘blown it all out of proportion and that ... he denied doing it but then he said, in the same breath, that he had a problem’. She was asked what he had denied doing and said that he admitted that he had put his hand in the complainant’s underpants, but denied touching her vagina. He agreed to obtain counselling.
OSM reported the matter to Department of Human Services on 14 March 2006 (two days after the incident) and the police then interviewed the complainant.
In cross-examination OSM was asked about her vision. She said that she was short sighted but was wearing either her glasses or her contact lenses at the time of the incident.
She was also cross-examined about her motivation for accusing her husband of sexually assaulting their daughter. It was put to her that she had been angry with her husband for at least 12 months leading up to the incident because he had spent money having an operation and she disagreed with that course of action. It was also put to her that she had separated from her husband on 14 March 2006 and had received a property settlement of $8 million a couple of months after that. It was put to her that her intent thereafter was to destroy the relationship between the children and their father. She disagreed with that statement. She agreed that she had not passed on cards which the applicant had sent to his daughters. In re-examination she said she had not done so because there was something in the cards which concerned her, but she had passed on presents he had sent for the children.
OSM was cross-examined about the positions of OKP and her father when they were lying on the pool deck. It was put to OSM that she had described her daughter as lying with her head on her father’s body and her back across his torso, ‘sort of at ... right angles’ whereas her daughter had said they were lying in a parallel position. She said that her evidence was how she remembered the positions of her daughter and her husband. It was also put to her that her daughter had said the family dog was on the pool deck. OSM said she had no recollection of the dog being present, but ‘that wasn’t ... important to [her] on that day’ and she had ‘focused on where [her husband’s] hand was’.
The complainant’s evidence
The complainant made a VATE statement on 14 March 2006. In that statement she said that she and her father were lying on the pool deck and ‘he was just rubbing my tummy and then he got down below, and then Mum banged on the window’. She said she was lying with her back on her father when this occurred and had her head near his head. She was wearing her dressing gown and underpants and her father was wearing his dressing gown. She said ‘ I don’t know how he does it, he just slips [his hands] down’ inside her underpants without her knowing. She indicated, by moving her hand, that he had touched her in an area above the crotch and said he had moved his hand a little bit. She said her mother then knocked on the window and looked cross. Her father stopped what he was doing and pulled his hand out of her underpants.
The complainant also said that her father put his hand down her underpants when he was giving her ‘a snuggle’ in bed. She said that ‘his hand somehow gets down there without me knowing, before like – and then I tell him off’. She said that this happened about once a week and his hand went just above the vagina. He sometimes moved his hand and sometimes did not.
The following passage then appeared in the VATE interview.
POLICE:Alright. And – okay. So, does he ever put his hand anywhere other than the top part where you said?
WITNESS:Well, once he did it there.
POLICE:Okay. And what – where did he put it when he did it at the back there?
WITNESS:Well, he just rubbed my back. But yeah, he didn’t go near the undies.
POLICE:Okay. So, just around your back, was it?
WITNESS:Yeah.
POLICE:Alright. And did he put his hand in your pants that time, or was it on the outside of your pants?
WITNESS:Well, he didn’t put them in my pants, no.
POLICE:Okay. Alright. So, when you talked about your vagina before - - -?
WITNESS: Mm.
POLICE: And where wees come out of - - -?
WITNESS: Yeah.
POLICE: Does Dad touch you down there with his hand?
WITNESS: No.
She said she thought her father had been putting his hand down her pants when they snuggled for about two years. When asked why she thought he had been doing it for two years she said ‘ Well, I can’t remember when he didn’t do it.’
At the trial OKP was cross-examined as follows about her apparent denial that her father had touched her on the vagina.
COUNSEL:Yes. Now, this is the case too, and it’s what you’ve told Ms Squire, the police officer, that your father has never, ever touched you on the vagina?
WITNESS:I don’t think so.
COUNSEL:Well, that’s what you told her?
WITNESS:Not that I can remember.
COUNSEL:It was stronger than that, wasn’t it?
WITNESS:Yes.
COUNSEL:You made it very clear to her that when she asked you that you said ‘No’?
WITNESS:Yes.
COUNSEL:You said ‘No’ because that was the truth of it, wasn’t it?
WITNESS:Yes. Yes.
The complainant was then questioned about her statement that her father touched her when they were ‘snuggling’.
COUNSEL:The reality of it, [OKP], is this, that you had blankets or a doona or something on?
WITNESS:Yes.
COUNSEL:Every night you had Bilby your teddy in your arms?
WITNESS:Yes.
COUNSEL:The truth of it is this, [OKP], that you couldn’t see your father do anything, could you?
WITNESS:No.
COUNSEL:The reality of it too is ... that you couldn’t feel him do anything either, could you?
WITNESS:No.
COUNSEL:But you were told what your mum told the DHS people and the police. That’s what you were told about, isn’t it?
WITNESS:Yes.
COUNSEL:You were told that your mum told the Department of Human Services people and the police that your dad touched you around the tummy most nights when you were in bed?
WITNESS:Yes.
COUNSEL:And that touching was something that you effectively didn’t see and didn’t feel but you accepted what your mum said as being right. Yes?
WITNESS:Yes.
COUNSEL:And you had no hesitation saying if your mum said it, it would have to be right?
WITNESS:Yes.
Later in cross-examination it was put to her that she did not have any real recollection of what had happened. Her answers were as follows.
COUNSEL:When it came to speaking to the police and the Department people, I would suggest this to you, [OKP], that in terms of your own independent recollection you had little to reflect on. Do you understand that?
WITNESS:Not really.
COUNSEL:When you were telling Ms Squire that you never actually felt your dad’s hand or saw it that was the truth, wasn’t it?
WITNESS:Yes, because I was, like, used to it.
COUNSEL:Effectively was that something your mum had raised with you and said, ‘Look, you know, that’s what was happening’?
WITNESS:No.
COUNSEL:Did she tell you that she could remember what was happening?
WITNESS:No.
COUNSEL:Did she tell you about what she remembered?
WITNESS:No.
COUNSEL:So, effectively, when you said the things about not seeing and not feeling that was absolutely right?
WITNESS:Yes.
COUNSEL:Around this time, that is in March of 2006, your mum was often cross with your dad?
WITNESS:I can’t remember.
COUNSEL:Or angry with him sometimes?
WITNESS:She might have been, but I really don’t remember.
Later OKP was cross-examined about a drawing which was shown to her at the committal by counsel for the applicant. This showed that she was lying parallel to her father, rather than at right angles. It was put to her that she had previously said she was parallel to her father with her head on his shoulder and she agreed she had said that. However she later said that she was not sure whether the diagram was correct and she said ‘I’m not sure. I think I was mainly on top of him’.
In re-examination OKP’s evidence was as follows:
COUNSEL:When you told Ms Squires that you hadn’t felt your father’s hand, what did you mean?
WITNESS:I guess I meant that I was so used to it, I didn’t really think much of it.
COUNSEL:Can I ask you this, [OKP]: what was it that you were so used to?
WITNESS:Him putting his hand down there.
COUNSEL:I don’t mean to [embarrass] you here, [OKP], but can I ask you to say where it was that you were so used to him putting his hand?
WITNESS:Just above my vagina.
COUNSEL:Did that occur when you had underpants on or not?
WITNESS:When I had underpants on.
COUNSEL:If you don’t understand this question, please let me know. Where in relation to your underpants was his hand? I think I might have confused you. Have I, [OKP]?
WITNESS:Yes.
COUNSEL:You said that you were so used to him putting his hand just above your vagina?
WITNESS:Yes.
COUNSEL:That was when you had your underpants on. Is that right?
WITNESS:Yes.
COUNSEL:Can I ask you this? Was his hand on the outside of your underpants, on the inside of your underpants, or indeed, somewhere else when he did that?
WITNESS:Inside.
COUNSEL:Again you were asked some questions this morning by the other barrister, Mr Brewer, about what had happened on 12 March last year, after your mum banged on the window and you saw that she had a cross face. Do you remember talking about that this morning?
WITNESS:I think so.
COUNSEL:Can I ask you this, after your mum knocked or banged on the window and you saw that she had a cross face can you tell us what happened, please? What did you do – sorry?
WITNESS:I got up and then just went inside.
COUNSEL:Okay. What about your dad? Did you see what he did?
WITNESS:No, I can’t remember.
COUNSEL:Did you speak to your mum, or your dad, or anybody else after you stood up or you got up?
WITNESS:Not that I can remember.
COUNSEL:That night did you speak to your mum about what had happened – sorry. After you got up and went inside did you speak to your mum at all after that, that day?
WITNESS:I might have, but I can’t remember.
…
COUNSEL:Well, when you spoke to the police were you telling the truth or did you make a mistake?
WITNESS:I was telling the truth.
COUNSEL:Do you remember, you were also asked this, ‘Sometimes when people make a joke, that’s perhaps a little bit less’ – sorry, this was a question that you were asked yesterday afternoon by the other barrister and I’ll ask you if you remember it. ‘Sometimes when people make a joke that’s perhaps a little bit less than accurate, that’s not telling a lie, is it?’ Do you remember about that? Do you remember being asked that question?
WITNESS:I think so.
COUNSEL:All right. When you spoke to the police officer on 14 March, in that video that we watched yesterday, were you making a joke?
WITNESS:No.
COUNSEL:Were you telling a lie?
WITNESS:No.
…
COUNSEL:When your mum banged on the window, where were your father’s hands?
WITNESS:In my undies.
COUNSEL:I’m sorry, [OKP], I didn’t hear you?
WITNESS:In my undies.
COUNSEL:Which hand or hands were in your undies? Can you say?
WITNESS:Dad’s, but I can’t remember which one.
JBE’s evidence
JBE is the daughter of the applicant by a previous marriage and was 26 years old at the time of trial. She gave evidence that the applicant had never treated her in an improper or indecent way. She said she had stopped living with the applicant when she was about 18 months old.
GROUNDS OF APPEAL
The following grounds of appeal were argued:
1.The learned trial judge
(a)failed to relate the facts to the law;
(b)failed to put
(i)the prosecution case;
(ii)the defence case;
(c)failed to summarise the evidence.
2.The learned trial judge erred in failing to give any direction as to complaint.
3.A miscarriage of justice occurred by the prosecution leading evidence of complaint that was
(a)non-spontaneous
(b)subsequent to the first complaint made.
4.The learned trial judge erred in failing to direct as to prior inconsistent statements.
5.A miscarriage of justice was occasioned by the failure of the court to enforce a subpoena compelling production of the
(a)optometrist records; and
(b)the medical records of [OSM].
6.The conviction was unsafe and unsatisfactory.
On 6 May 2009, this Court heard and refused the application relating to the subpoena compelling production of medical records. Vincent JA delivered ex tempore reasons on that occasion. Accordingly, these reasons relate to grounds 1-4 and 6 only.
Ground 1
Counsel for the appellant submitted that his Honour had not adequately summarised the evidence, related the facts to the law or explained the prosecution and the defence cases to the jury.
The court took counsel to sections of the jury charge in which his Honour explained the elements of the offence and referred to the facts pertaining to each element. Counsel conceded that his Honour had made some reference to the evidence, but contended that his Honour had not summarised the evidence adequately or made sufficient reference to the competing versions of events relied on by counsel for the Crown and the defence.
Counsel submitted that the jury direction was comparable to the jury directions which were found to be inadequate in R v Gose.[2] He relied on R v Yusuf[3] as authority for the proposition that the brevity of the trial did not relieve the trial judge of the responsibility to summarise the evidence. He also submitted that Pemble v R[4] required the judge to relate the facts to the law, even in circumstances where counsel had done so in their closing addresses.
[2][2009] VSCA 66 (‘Gose’).
[3](2005) 11 VR 492 (‘Yusuf’).
[4](1971) 124 CLR 107 (‘Pemble’).
Counsel for the Crown submitted that the trial was very short and the only significant evidence was that of the two Crown witnesses. He submitted that his Honour had referred to the elements of the offence, related the facts to those elements and refreshed the memory of members of the jury by referring to the points made in closing addresses by counsel on the previous day. No exception was taken to the charge and defence counsel had described it as being ‘very fair and proper’.
Counsel for the Crown also submitted that even if his Honour had not adequately directed the jury, the Court should apply the proviso in s 568(1) of the Crimes Act1958.
Conclusion on ground 1
In his jury charge, his Honour referred to the elements of the offence of committing an indecent act with a child under the age of 16 and explained that the elements in dispute were
· whether the accused committed the alleged act;
· whether the act occurred in indecent circumstances; and
· whether the accused wilfully committed the act.
His Honour then directed the jury as follows:
The first element is the actions of the accused. The first element relates to what the accused did. He must have committed the act alleged by the prosecution. Now in this case the prosecution allege that he inserted his hand under the undies of [OKP] on the pool deck at Main Ridge on 12 March 2006. You heard Mr Hughan refer to the evidence of [OKP] and her mother. You have had the opportunity to view the original tape of [OKP]. You have seen her under cross-examination and re-examination. You make your own assessment of her evidence. That is your role.
My comment is you are dealing with a ten year old girl in this case. You make your own assessment of her maturity and determine whether you can rely on her evidence or whether, as Mr Brewer suggests, she might be prone to suggestion.
You have heard the evidence of [OSM]. She gave a demonstration of what she saw through the window. You heard her responses under cross-examination. As Mr Hughan said to you, did she see what she says she saw? That is the question. You also heard the prosecutor refer to what she said was an admission by the accused man the following day in a conversation between them. That is the Crown case.
The defence responded that you could not be satisfied beyond reasonable doubt on the evidence of the complainant and [OSM] that the event as alleged occurred. Mr Brewer referred to the possible vision impairment of [OSM]. He referred to her vested interests elsewhere. He asked you not to accept her evidence. He asked you to look at her actions after the alleged event to see whether they are consistent with what she claimed happened. He said to you this morning look at what happened after 6.30 that night. Was it consistent with what she claimed was this event, or was it consistent with something else?
He submits to you that if you cannot accept her evidence then you cannot find the accused man guilty. Remember yesterday he referred to the text messages that she sent to him a short time after the incident. He referred to [OKP] and the environment she was in in the police station, the unusual environment of the police station and the fact that she may have adopted a false memory of what happened. He referred to her evidence that she did not see any hands when snuggling. He referred to the dynamics of the incident and put to you that it could not have happened, that [OPM] may have had to have had orang-utan arms. He referred to the conflict between the evidence of [OSM] and [OKP], the drawing of [OKP], as to where the bodies were located, the torso, and the dog and that [OSM] did not see the dog, so there is this conflict between the evidence of [OKP] as to where they were located on the pool deck, and what [OSM] said she saw.
The defence puts a lot of emphasis on [OSM]’s behaviour after the incident. You recall her evidence about that. She went outside, and whether there was a conversation or not, and [OKP] said there was no conversation, the parties just went on with what they were doing.
Now it is a matter for you. You have got to try and reconcile if necessary the conflicting evidence between [OKP] and [OSM], talk about it amongst yourselves, and decide whether, recalling that the onus of proof is at all times on the Crown and the burden of proof is on the Crown beyond reasonable doubt, you can be satisfied that in fact [OPM] did the act which it is asserted that he did.
Now you recall that [OSM] was asked to demonstrate where the hand was. Mr Brewer did not actually put to her that she is in fact lying – he has asked you not to accept her evidence. He did not specifically put to her in cross-examination: look, you are telling a pack of lies here and it did not happen, he did not have his hand in her pants. That is a matter for you and as Mr Hughan said there is a conflict between whether he had [his] hand above the vagina or on the vagina, whatever, so you have got to sort that out yourselves.
This is just a comment. Exhibit A, child’s undies. We do not know how big they were, whether they were bloomers or bikini briefs, whatever.
So the first critical matter in terms of what you are required to do is sort out, decide what actually happened on the pool deck, and the defence says you could not be satisfied beyond reasonable doubt that [OPM] had his hand down the undies.
Now the next critical element of this matter the prosecution must prove is that the alleged act occurred in indecent circumstances. Now you asked me about that a day or two ago. I said to you indecent is an ordinary everyday word and it is for you to determine whether the circumstances were indecent in this case. However, I direct you, and the law says, that indecent circumstances must involve a sexual connotation. The Crown put to you that this was an indecent act on either [OKP]’s or [OSM]’s version. Defence Counsel asked where is the indecency? He argued to you that you could not find a sexual connotation. You have got to find a sexual connotation here.
… [Y]ou are required to determine whether this alleged act occurred in indecent circumstances and that also requires and must have a sexual connotation here, and you have got to decide or infer from what you concluded about the act whether or not it had a sexual connotation. If it did not have a sexual connotation, you must find the accused man not guilty.
The third element is that the act has got to be done with the complainant, or the victim – there is no dispute about that. The fourth element: she is under 16. There is no dispute about that. The fifth element is wilfully. The accused’s person’s state of mind. The prosecution must prove that the accused wilfully committed the alleged indecent act, that is you must be satisfied that the accused’s participation in the act was deliberate and not accidental, and you heard the cross-examination about snuggling and it was put by Mr Brewer that the accused man, in relation to snuggling, had some surgery on his hip and he was trying to get comfortable. Nothing was put to that effect in relation to the pool deck, but you have got to be satisfied that it was deliberate. If you find that he put his hand down the undies that it was deliberate and not accidental.
…
Now to summarise, before you can find [OPM] guilty of committing an indecent act with a child under 16 the prosecution must prove beyond reasonable doubt that [OPM] committed the act of inserting his hand down [OKP]’s underpants on the pool deck, that this act occurred in indecent circumstances, the act was done with [OKP], she was under 16, he wilfully committed the alleged indecent act and she was not married to him, or they were not married.
If you find any of these elements have not been proved beyond reasonable doubt you must find him not guilty.
After his Honour completed his jury direction, counsel for the Crown submitted that he should give a further direction on the conflict between the evidence of OKP and her mother as to the position of the bodies. Counsel asked his Honour to tell the jury that it was not put to OKP or her mother that it would have been impossible for the applicant to touch the complainant if he was lying in a particular position. His Honour then re-directed the jury as follows.
Members of the jury, just going back to my charge to you, I omitted to make one point that I want to just make to you now, and that is that you recall Mr Brewer in his address to you he mentioned the dynamics of the bodies and he said it is a matter that you can take into account.
Now he made a lot of emphasis in his address to you of the conflict between the evidence of [OSM] and [OKP]. Just one point to note about what Mr Brewer said to you in his final address is that – and he mentioned the words ‘orang-utan arms’, I think that was the word, some monkey, but the point is he did not actually put that directly to either [OKP] or [OSM], that you would need to have long arms for this to have occurred.
Now that is a matter you can take into account in weighing whether or not you accept their evidence bearing in mind that at all times the burden of proof is on the Crown, to prove beyond reasonable doubt that the accused man committed the offence that he is charged with, and the weight that you put on any evidence, that is a matter for you, so at this point we will now re-show you the DVD.
The duty of a trial judge in directing a jury was summarised in R v AJS[5] as follows.
[5](2005) 12 VR 563 (‘AJS’).
Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.[6]
The fact that a trial is a short one does not relieve the trial judge from the responsibilities described above.[7]
[6]Ibid 577 [55].
[7]R v Dao [2005] VSCA 196, [24].
The fundamental question is whether the charge equipped the jury to perform its task by drawing attention to the evidence relevant to the elements of the offence and ensuring the jury understood how the evidence related to the Crown and defence cases. However, as Vickery AJA observed in Gose:
Directions given in a very short trial involving a simple factual issue … may vary considerably in their content from those required in a lengthy or more complex trial.[8]
[8][2009] VSCA 66, [28].
In my opinion, his Honour discharged that responsibility. His Honour carefully explained the elements of the offence, summarised the facts in issue and related the facts to the law. He reminded the jury of matters raised by counsel in their closing addresses, which the jury had heard only the day before.
I do not consider that any of the cases relied upon by counsel for the applicant assist him. In Gose, the questions in issue were whether the complainant had consented to having sexual intercourse with the appellant and whether the Crown had proved beyond reasonable doubt that the appellant knew the complainant was not consenting, or was aware that she might not be consenting. In that case the trial judge did not draw the jury’s attention to aspects of the appellant’s evidence which supported his version of events or to other evidence that supported the appellant’s claim that the complainant had consented, or that he believed that she was consenting. All that the trial judge said on that matter was that the appellant:
did give evidence and he swore on his oath that he believed she was consenting at all material times, and there is the straight conflict of evidence.[9]
[9]Ibid [39].
The court held that the trial judge’s summary of the evidence adduced by the Crown, coupled with the failure to refer to the evidence of the appellant, created ‘a grave imbalance in the cases to be considered by the jury’.[10] The provision of the full transcript of evidence to the jury did not redress that imbalance.
[10]Ibid [40].
In this case, by contrast, his Honour drew attention to matters put by defence counsel relating to the improbability of OSM’s evidence as to what she had seen the applicant do during the pool deck incident.
In Yusuf, where the applicant had been convicted of rape, the applicant’s version of events was that he had had consensual sexual intercourse with the complainant, who had then demanded money from him and said if he did not hand it over she would go to the police. The complainant’s version was that she had gone unwillingly to his room and had been forced to have intercourse. Winneke P said:
If that had been the only evidence in the case, there would have been a stark difference between the versions of the complainant and the applicant clearly determinable by the jury without further instruction.[11]
[11](2005) 11 VR 492, 500.
However, because there was other evidence relevant to the applicant’s and the complainant’s version of events, which bore materially on the central fact in issue, this Court held that the judge had not adequately related the relevant legal principles to the fact in issue.[12]
[12]This case concerned the jury direction that was required to be given under Crimes Act 1958 s 37(1)(c). However Winneke P said that the sub-section ‘[added] little to the obligations which are imposed by the common law upon the trial judge - namely to give to the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury’: Ibid 499.
Again, the circumstances which arose in Yusuf are clearly distinguishable from those in this case. In this case, there was ‘a stark difference’ between the mother’s evidence that she saw the applicant indecently touch the complainant on the pool deck and the defence case that this simply did not occur. Further, his Honour specifically referred to the differences in the evidence of the mother and complainant as to where the applicant and the complainant were located on the pool deck, whether the dog was present on the pool deck and what happened after the mother went outside.
In Pemble the appellant was convicted of murder. The defence case was that the applicant had intended to frighten the victim with a gun, which had accidentally discharged when he stumbled. The High Court held that the jury charge was inadequate because the jury had not been directed that the accused could not be convicted of murder by recklessness unless the jury were satisfied that the appellant had foreseen that death or serious injury was a probable consequence of his act in pointing the gun at the victim.[13] By contrast, in this case, his Honour did not fail to direct the jury on the defence case that the mother’s evidence should not be believed.
[13](1971) 124 CLR 107, 118-119 (Barwick CJ), 127 (McTiernan J) and 135 (Menzies J). Menzies and Owen JJ also considered that the trial judge had erred by implying that the case was one of murder or of manslaughter, and that complete acquittal was not open: see 137 (Menzies J) abd 141-142 (Owen J).
For these reasons I consider that ground 1 is not made out.
Ground 3
It is convenient to deal with ground 3, before turning to ground 2.
I have already referred to OSM’s evidence that immediately after the incident by the swimming pool, OKP had told her that her father had ‘done it many times’. The mother’s evidence-in-chief was that she talked to her daughter that evening ‘about how it was wrong [to do] what her dad did and to let me know if this ever happened again and that I was there for her and she could tell me anything’. I will refer to this as the ‘evening conversation’.
When asked if her daughter had responded OSM said:
That’s when I believe she confirmed that he’d done it a lot and that he used to rub her tummy a lot and then she said he was very sneaky with it – that his hand would be on her tummy and then it would be in her underpants. I asked her if he’d done anything else and she said no.
Counsel for the appellant submitted that the evidence of what OKP told her mother in bed on the evening of the event was hearsay, which was not admissible as a recent complaint. It was submitted that the answer given by the complainant to her mother when her mother told her to let her know if this ever happened again was not a complaint, but was the response to a leading and subjective question. It was said that the mother was, ‘in the context of unpleasant divorce proceedings’ questioning her daughter suggestively and seeking a particular answer.
Counsel for the Crown submitted that the conversation between the complainant and her mother was admissible as complaint evidence, because it was sufficiently proximate to the pool deck incident to be regarded as having been made at the first reasonable opportunity. It was said that this was a continuation and elaboration of the conversation which had occurred between the complainant and her mother immediately after the charged event. In any case, defence counsel had not objected to the admissibility of this evidence.
Conclusion on ground 3
I would reject the applicant’s counsel’s submission that OSM’s evidence of what her daughter told her on the evening of the pool deck incident was not admissible, because it was non-spontaneous and was made after the first complaint.
Evidence of more than one recent complaint of a sexual assault may be admissible to buttress the complainant’s credibility, provided the second or later statement satisfies the requirements of the recent complaint principle.[14]
[14]R v Freeman [1980] VR 1, 4.
It is also clear that answers to questions which provide a ‘spontaneous and unvarnished narrative’ of what has occurred may be admissible as a recent complaint, provided that they are not the result of suggestion and have not been induced as a consequence of the relationship between the complainant and the questioner.[15] There is no evidence that the complaint was the product of the mother’s suggestion. According to the mother’s evidence she did not question the applicant about past events, but told her daughter ‘to let me know if this ever happened again and that I was there for her and she could tell me anything’.
[15]Ibid 5.
At the hearing of the application, counsel for the applicant conceded that the written submission that the mother’s conversation with her daughter occurred in the context of divorce proceedings was misconceived. There was no evidence that the complainant’s parents’ relationship was unhappy, or that divorce was contemplated at the time of the pool deck incident. The couple did not separate until after the mother observed her husband touching his daughter. To her credit, she then acted very promptly to protect the complainant.
However, the complainant’s statement to her mother was probably inadmissible as a recent complaint for another reason. Her statement that her father ‘had done it many times’ did not refer to the incident which occurred on the pool deck, but complained generally that her father had touched her on many previous occasions. OKP did not describe these assaults with any particularity and there was nothing to indicate that the particular incidents occurred a short time previously. The situation is comparable to that in R v HG, where this Court held that generalised complaints which the complainant had made to friends and to her mother about her stepfather’s sexual assaults were not admissible as recent complaints.[16]
[16][2007] VSCA 55; see also R v MAG [2005] VSCA 47.
The applicant’s counsel did not challenge the admissibility of the mother’s evidence about what OKP told her immediately after the pool deck incident. For the reasons referred to below, such a challenge would not have succeeded. As I have said, counsel for the Crown submitted that the conversation in the evening was admissible, because it was simply a continuation of the earlier conversation when the daughter implicitly complained about the touching that occurred on the pool deck and volunteered that her father had touched her on previous occasions.
It is unnecessary for me to decide whether the evidence of the evening conversation was admissible on that basis. Even if it was not admissible, I do not consider that any miscarriage of justice occurred because of admission of evidence of the evening conversation. My reasons for that view are discussed below in the context of ground 2.
Ground 2
The applicant’s counsel submitted that the jury should have been directed that they could only use the mother’s evidence that her daughter had told her that her father had touched her on previous occasions as evidence relevant to the credibility of her daughter’s evidence, and not as evidence of the truth of the statements. Counsel conceded that the Crown relied on the daughter’s two statements to her mother that her father had touched her on other occasions as evidence of uncharged acts, to explain the context in which the pool deck incident occurred. Nevertheless, he submitted that both conversations were, in effect complaints, so that the learned trial judge should have warned the jury about the limited use which could be made of this evidence, in addition to warning them about propensity reasoning.
Counsel for the Crown submitted that the evidence of the conversation immediately after the pool deck incident was admissible, because it was part of the res gestae surrounding the incident which provided the basis of the charge. The mother’s evidence of the evening conversation was treated as a continuation of the previous conversation relating to uncharged acts, in relation to which his Honour gave a detailed propensity warning. The defence case was that the mother had lied or at least been mistaken as to what she saw happening on the pool deck. Because the main focus at trial was on the mother’s evidence of the pool deck incident, there was little focus on the complaints of previous sexual touching.
Even if a recent complaint direction was technically required, the applicant was represented by very experienced counsel and neither counsel had considered that a complaint direction was necessary. No miscarriage of justice had occurred as a result of the failure to give such a direction.
Conclusion on ground 2
Evidence of a spontaneous statement that is made by an observer or participant during or immediately after an event which gives rise to a criminal charge is admissible as part of the res gestae, as an exception to the hearsay rule. In Van Den Hoek v R, for example, the Western Australian Court of Criminal Appeal held that a victim’s spontaneous statement to a passer by who stopped to help him that ‘She’s trying to kill me’ made when the victim had just been stabbed and had a half brick thrown at him by his de facto wife, was admissible as part of the res gestae.[17]
[17](1985) 17 A Crim R 191, 200. See also Ratten v R [1972] AC 378, 389; Harriman v R (1989) 167 CLR 590, 606-607; R v Benz (1989) 168 CLR 110, 117 and 120-121.
The mother’s evidence of what her daughter said to her immediately after she banged on the window and went outside was admissible on this basis.
Since the res gestae evidence was admissible as evidence of the truth of OKP’s statement, and not simply as evidence relevant to the complainant’s credibility, I do not consider that the trial miscarried as the result of his Honour’s failure to direct the jury about the use of evidence of a similar statement made by the complainant to her mother later on the evening of the same day. In her original conversation with her mother OKP had said that her father had ‘done it many times.’ The later statement made by OKP simply confirmed that was the case and added detail about when the alleged touching occurred. Defence counsel, who was an experienced practitioner, did not object to the admission of this evidence and said to his Honour that the charge was ‘very fair and proper’.
I also consider that the mother’s evidence of the evening conversation was of limited significance, because of her observations of the pool deck incident. The applicant was convicted of one indecent act count, which was based on the mother’s direct observation of the pool deck incident.
I am fortified in my view by the strong warning his Honour gave the jury about the use they could make of evidence of uncharged acts.
I want to say something about the snuggling. The Crown says that there are other acts here, the snuggling, what happened in bed, when he was putting her to bed on other occasions. The Crown refers to that evidence. Now I must instruct you that the evidence of other uncharged acts, being the evidence of the complainant, that the accused put his hands down her undies when snuggling her to sleep, not on the 12th, but earlier, if you accept that this occurred and if you find such wilful and indecent actions occurred, it enables the evidence relating to the charged alleged offence to be placed in a more complete and realistic context.
You may, if you accept that the evidence of uncharged, indecent and wilful activity occurred, appreciate the significance of what may otherwise seem merely to be an isolated, indecent act occurring without any apparent reason.
You may only use the evidence in this way if you are satisfied that the alleged uncharged acts in fact occurred, so you have got to find that putting his hands down her undies when he is snuggling her occurred, and if you do that, you can use that to put in context, just for the purposes of context, what happened on the 12th.
You must understand however that although this evidence of uncharged indecent acts may be received by you it is admissible for that limited purpose only and only for that purpose.
I have also got to instruct you, and listen to this carefully, that the law does not allow evidence of a propensity to be given. That is evidence of the propensity to commit crime to be given. You may use the evidence of uncharged acts in the manner in which I have referred, but it would be fundamentally wrong if you were satisfied that those uncharged acts did take place and that they were wilful and indecent for you to reason that because the accused committed those acts, with which he has not been charged, it would be wrong to infer that he is the type of man who would be more likely to have committed the act with which he is charged on the pool deck on 12 March 2006. That is propensity reasoning and you are not allowed to do it.
Whether you are satisfied beyond reasonable doubt of the guilt of the accused man of the particular charge you are considering is something you must decide on the evidence which relates to the particular allegation which is the evidence of [OKP] and her mother, as the mother has seen through the window. You cannot substitute other evidence of some other incident not the subject of this charge for the evidence in support of the charged incident, so you cannot reason: look, he has been putting his hands – if you find he did it – he has been putting his hands down her undies when he is snuggling in the past, therefore he must be guilty of this offence. You cannot reason that way. You have got to look at the events of the 12th, look at the evidence, decide whether you accept what [OKP] says, whether you can rely on her, or whether as Mr Brewer put to you that she might have been the subject of suggestion, or whether you can rely on [OSM]’s evidence, or whether her conduct after the event is such that really is inconsistent with what she in a sense would assert was an egregious act by her husband.
Having regard to all the matters mentioned above I do not consider that any miscarriage of justice could have occurred as the result of the admission of evidence of the evening conversation, or of the judge’s failure to tell the jury about the limited use they could make of that evidence.
Ground 4
Counsel submitted that the judge was required to direct the jury that the effect of OKP’s prior inconsistent statement was relevant to her credibility. In that context he relied on the negative answer in OKP’s VATE tape to the question ‘Does dad touch you down there with his hand?’.
Counsel submitted that in her evidence-in-chief the complainant denied making that statement, then said she did not remember it, then said that she did make the statement and that it was true. He said that R v Schmahl[18] was authority for the proposition that in those circumstances the judge should have directed the jury on the relevance of the prior inconsistent statements.
[18][1965] VR 745 (’Schmahl’).
Counsel for the Crown submitted that while there were some inconsistencies in the evidence of the complainant as to the applicant’s previous behaviour, the complainant had not made a prior inconsistent statement in the sense dealt with in Schmahl. The jury had been directed as to the burden of proof and was capable of taking account of inconsistencies in the complainant’s evidence.
Conclusion on ground 4
This ground of appeal can be dealt with briefly. In Schmahl there were inconsistencies between the evidence given by a witness at the first trial of the appellant and at the second trial, to which the trial judge had made no reference in his jury charge. Winneke CJ, with whom Sholl and Pape JJ agreed, said:
The course in fact followed by the learned judge in delivering his charge was to state the general principles of law applicable to the case, omitting, however, the principle relating to the use of prior inconsistent statements, and then to leave the jury at large to apply those principles to the general body of evidence without explaining how they might be applied to the basic issues in the case before them. In a case such as the present, which extended over several days of hearing and involved many issues and a large body of evidence, and where an important part of the defence was derived from inconsistencies in the Crown case, and where so much depended on the reliability of the witness Goddard, it was, in my opinion, essential for a proper consideration of the defence that the jury be instructed on the use of the evidence in relation to the issues before them. Indeed, the inconsistencies had a two-fold application in this case: in the first place, they were obviously capable of being used to discredit the evidence of Goddard concerning the making of the representations and his inducement thereby, and, in the second place, they were capable of being used in support of the defence that the representations were not in fact made, or, if made, did not induce Goddard to act upon them.[19]
[19]Ibid 748.
The VATE tape was admitted as part of the complainant’s evidence-in-chief.[20] It was not a prior inconsistent statement which required a jury direction about its use. There were certainly inconsistencies between what OKP, then aged nine, said in her VATE interview and what she said in cross-examination, over a year and a half later. These would have been apparent to the jury, which was firmly instructed about the burden of proof. As I have already said, the jury direction on the facts and the law was an adequate one.
[20]Evidence Act 1958 s 37B.
Ground 6
In my opinion this ground is not made out. The mother testified that she saw the applicant with his hand down the complainant’s underpants. She was not shaken in cross-examination.
The daughter implicitly confirmed that this had occurred immediately after the pool deck incident. No doubt the jury made some allowance for the fact that the complainant, a young girl, may have become confused in cross-examination when she was asked about her earlier statement. In re-examination the complainant confirmed that the applicant had touched her in the area of her vagina. There is no basis for the applicant’s counsel’s submission that the verdict was unsafe and unsatisfactory.
For the above reasons I would refuse the application for leave to appeal against conviction.
COGHLAN AJA:
I agree with the reasons given by Neave JA.
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