R v P M C
[2004] VSCA 225
•7 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 108 of 2003
| THE QUEEN |
| v. |
| PMC |
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JUDGES: | CALLAWAY, EAMES AND NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 November 2004 | |
DATE OF JUDGMENT: | 7 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 225 | |
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Criminal law – Sexual offences against child under 16 years of age - Evidence – Admissibility – Cross-examination – Collateral facts going to credit - Finality rule –Applicant not entitled to cross-examine witness on applicant’s acquittal on other charges.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr N. Papas | Victoria Legal Aid |
CALLAWAY, J.A.:
I agree with the other members of the Court, for the following reasons, that leave to add the proposed ground 1(e) should be refused and that the application for leave to appeal against conviction should be dismissed.
The two grounds of appeal that were argued and the proposed ground 1(e), as set out in the notice of application for leave to appeal and the notice of intention to amend grounds, read:
“1.The Applicant was denied the opportunity to put his defence, and was thus denied a fair trial because
(a)The learned trial Judge did not permit the Defence to put to the witness [MPC] the fact that he had made false allegations against the Appellant that resulted in charges being brought against the Appellant, the Appellant having been acquitted at trial of these charges.
…
(d)The learned trial Judge did not permit evidence of the above matters to be elicited form the Appellant
(e)The learned trial judge erred by ruling that no reference should be made to the legal proceedings at which allegations made against the applicant by the witness [MPC] were determined and by so ruling deprived the applicant of a fair chance at acquittal.”
There are obvious deficiencies in their expression and typography.[1]
[1]They were not drawn by Mr Papas.
The applicant claimed that his brother had incited the complainant to accuse him falsely. That was denied by both the complainant and the applicant’s brother. Evidence that the applicant’s brother’s own allegations of sexual molestation had come to trial and that the applicant had been acquitted was not relevant to any fact in issue and did not establish bias on the part of the complainant. It is said that such evidence should have been received, but it was not admissible.
Complaint is also made that defence counsel was not permitted to ask the applicant’s brother questions about the previous trial as an attack on his credit.
There are a number of possible answers to that. One is that the applicant’s brother was called solely for the purpose of being cross-examined by defence counsel and his evidence formed no part of the Crown case. Another is that it was within the discretion of the trial judge to exclude a line of cross-examination, not relevant to a fact in issue or sufficiently relevant for the purpose of proving bias on the part of the complainant, that was calculated to distract the jury from their task.
A third answer, which is enough on its own, is that experienced defence counsel made a forensic decision not to challenge the prosecutor’s submission that no reference should be made to the previous trial.[2] Counsel sought to re-open the matter in the light of a question asked in re-examination of the informant, but the question was not of such moment as to oblige the judge to change the ruling that he had given in the light of the earlier concession.
[2]Reasons of Nettle, J.A. at [39].
EAMES. J.A.
For the reasons given by Nettle, J.A., I agree that the application for leave to appeal against conviction should be dismissed.
NETTLE, J.A.:
On 17 January 2001 the applicant, PMC, was committed to stand trial before the County Court at Geelong on charges involving twenty four sexual offences alleged to have been committed between 1972 and 1999 against his younger brother, MPC, his daughter, JSC, and his girlfriend, TER, and one further charge of living off the earnings of prostitution.
On 5 June 2001 a judge of the County Court ordered that the presentment be severed and that there be a separate trial in respect of each complainant. The trial in respect of TER began on 12 June 2001 but the jury were unable to agree and were discharged. A second trial began on 4 July 2001 but the jury were discharged on 5
July 2001 after the complainant gave a prejudicial and non-responsive answer in cross-examination. A third trial began on 13 August 2001 but the jury were unable to agree and they were also discharged. Thereafter application was made to the Director of Public Prosecutions to enter a nolle prosequi.
On 20 August 2001, the applicant was presented for trial in respect of JSC on one count of indecent assault between 1 June 1988 and 31 December 1989 (Count 1); four counts of incest at Cardigan Village between 1 January 1994 and 31 March 1995 (Counts 2, 3, 4, and 5); three counts of incest at Miners Rest between 1 April 1995 and 31 December 1996 (Counts 6, 7 and 8); one count of indecent act with a child aged under 16 years at Miners Rest between 1 April 1995 and 31 December 1996 (Count 9); one count of incest at Golden Square between 18 April 1997 and 17 April 1998 (Count 10); and one count of indecent act with a child aged under 16 years at Golden Square between 1 May 1999 and 1 August 1999 (Count 11). On 23 August 2001 the judge found that there was no case to answer on Counts 9, 10 and 11 and directed the jury to acquit on those counts. On the same day it was discovered that the applicant was keeping company with a woman who was the mother of one of the jurors and the jury was discharged. On 5 September 2001, it was ordered that there be a change of venue and that the matter be re-listed for trial to begin in February 2002
Preliminary argument began on 11 February 2002 and on 12 February 2002 the judge acceded to an application by defence counsel that the trial in respect of MPC should precede the trial in respect of JSC. A jury was empanelled on 13 February 2002 but was later that day discharged. A second jury was empanelled on 14 February 2002 and the trial in respect of MPC then continued until 19 February 2002. The jury returned a verdict of not guilty on all counts.
The trial in respect of JSC began on 19 February 2002 with preliminary argument as to the admissibility of the VATE tape interview. On 21 February 2002 the judge ruled it to be admissible. The matter was then adjourned to 5 August 2002 and ultimately re-listed to be heard on 31 March 2003. On that day the applicant was arraigned on one count of indecent assault between 1 June 1988 and 31 December 1989 (Count 1); three counts of incest at Cardigan Village between 1 January 1994 and 31 March 1995 (Counts 2, 3 and 5); one count of indecent act at Cardigan Village between 1 January 1994 and 31 March 1995 (Count 4); two counts of incest at Miners Rest between 1 April 1995 and 31 December 1996 (Counts 6 and 7); and one count of indecent act at Golden Square between 1 May 1999 and 1 August 1999 (Count 10), to all of which he pleaded not guilty.
One of the applicant’s sons, MJC, was called as a witness for the Crown. During the course of his cross-examination on 2 April 2003, defence counsel sought to question him on evidence he had given at the previous trial in respect of MPC and as to an intervention order which the witness was said to have taken out against MPC to prevent the latter assaulting him. Objection was taken on the ground that both matters were irrelevant to the matters in issue. Defence counsel attempted to meet the objection with a submission that he wished to establish that MPC had struck the witness in order to induce him to give evidence “along certain lines”.
In the argument which followed the judge observed that counsel for the applicant was entitled to explore the proposition that MPC was “the motivator”, but that it appeared that the other trial and the intervention order as such were not relevant, and after considering the matter over lunch the judge upheld the objection in accordance with those observations. His Honour ruled that reference should not be made to any other proceedings or to the fact of the intervention order. Otherwise, however, he left defence counsel free to pursue the possibility that the witness or MPC may have been biased against the applicant.
Upon the witness going back into the witness box, defence counsel put to the witness and the witness agreed that after he ceased to live at MPC house in June 2001, he had seen MPC in the street and there had then been an argument as to whether the witness would support MPC. He said that MPC had assaulted him and that he had reported the matter to the police. But that is as far as the questioning went.
On the following day, defence counsel put to the informant that the applicant had told the informant that there had been heated discussion between the applicant and his brother MPC about the applicant’s children being used to buy drugs for MPC. At first the informant said that he did not recall the conversation. But upon being shown a record of interview (which defence counsel took care not to identify as such to the jury) the informant confirmed that such a conversation had occurred. He was then re-examined, and in that process the prosecutor identified the document as a record of interview and led from the informant that the passage of the record of interview to which reference had been made in cross-examination had been excised from the record of interview at the request of the accused.
At that point defence counsel objected that the prosecutor was doing the very thing that the judge had ruled should not be done, namely, referring to any other proceedings; and that the jury now knew that the record of interview had been amended to excise matters relevant to MPC; and that the jury would take that to mean that the applicant had been charged with offences relating to MPC; and that he should thus be entitled to tell the jury that the applicant had been acquitted of those offences.
The judge was evidently of the opinion that it was unfortunate that the prosecutor had identified the document or said anything about excisions from it. But his Honour said that he considered that counsel was reading too much into what the jury would be likely to make of it. He then called back the jury and directed them that there was no evidence as to who had decided upon the excision of the passage from the record of interview, and that:
“…All you need to be concerned about is that that statement which was elicited in cross-examination by [counsel for the applicant] was in fact - it has now been established before you that it was a statement that was made during the recorded interview, but that it was excised from the recorded interview. You need not inquire further into that, and you are not to speculate as to who might have requested it or the mechanics whereby it was excised from the recorded interview. Is that clear? Thank you.”
The Crown next called MPC so that he might be cross-examined.[3] Defence counsel put to the witness that there had been a very heated argument by telephone between the witness and the applicant in relation to the fact that the witness was using the applicant’s son, WRC, to purchase drugs for the witness, but the witness denied it. He admitted in cross-examination that he did not like the applicant, although he volunteered that his dislike was not strong enough to motivate him to coerce anyone to give false evidence against the applicant. He also admitted that he had threatened WRC and punched him and that there had been a struggle, but he denied that the assault and struggle were an attempt to persuade WRC to give evidence against the applicant. He further admitted that he had had an altercation with JSC and that he had told her not to alter or change or do anything to the statement which she had made against the applicant. He denied that he had endeavoured to influence JSC to give false evidence against the applicant.
[3]The Crown did not seek to adduce any evidence from him.
After the close of the Crown case the judge directed the jury to acquit on Count 2. On 8 April 2003 the jury returned verdicts of guilty to all other counts. Following a plea in mitigation, the judge sentenced the applicant to imprisonment for twelve months on Count 1, three years on Count 3, twelve months on Count 4, three years and six months on Count 5, three years on Count 6, three years and six months on Count 7 and six months on Count 8, with a degree of cumulation making for a total effective sentence of eight years and a non-parole period of six years.
The applicant now applies for leave to appeal against conviction on grounds that the judge erred in:
“1(a) prohibiting defence counsel [putting] to [MPC] that he had alleged falsely, to the police and in Court, that the applicant had sexually assaulted him;
…
1(d)not permitting the applicant to give evidence on those allegations”,
and upon the following further proposed ground, for which leave is sought:
“1(e)ruling that no reference at all be made to the trial at which the allegation were heard”.[4]
[4]All other grounds of appeal were abandoned.
The question of whether leave should be granted to add ground 1(e) was reserved until after the application had been heard.
The original argument
The argument originally put in support of the grounds 1(a), (d) and (e) was that the judge erred by preventing disclosure to the jury of the fact that the applicant had been charged with but acquitted of offences concerning MPC. It was contended that the acquittal meant that the applicant was to be treated as entirely innocent and, on that basis, that counsel should have been permitted to put the acquittal to MPC as demonstrative of the falsity of his allegations. Counsel who appeared for the applicant upon the hearing of this application made clear that he was not the author of that contention and that he did not wish to pursue it. In my opinion he was right to adopt that course. The fact that the applicant was acquitted of the charges concerning MPC proved nothing about the truth or falsity of the allegations on which those charges were based - it proved only that the other jury was not satisfied of the truth of the charges beyond reasonable doubt - and even if the acquittal said something about the views of the other jury as to the reliability of MPC as a witness, those views were irrelevant to the assessment of the jury in the trial of the charges concerning JSC.[5]
[5]Humphries v. The Queen (1987) 17 F.C.R. 182 at 186; cf. S v. Damalis (1984) (2) S.A. 105 at 113.
The new argument
Counsel for the applicant argued that the effect of the judge’s prevention of disclosure of the applicant’s acquittal in the earlier trial was to prevent defence counsel from putting to MPC that he had made false allegations against the applicant. In my opinion that is not so. Defence counsel was free to put that the allegations were false. The only prohibition was upon using the acquittal as a means of establishing that the allegations made in the earlier trial were false and, as I have said, he was properly so precluded. The acquittal established no such thing.
Counsel for the applicant next contended that the applicant was entitled as a matter of law to the full benefit of the acquittal and that the benefit necessarily included the right to prove the fact of the acquittal in any subsequent proceedings. That proposition, it was said, derived from the decision of the High Court in The Queen v. Storey[6] and was confirmed by the more recent decision of that court in The Queen v. Carroll[7].
[6](1978) 140 C.L.R. 364.
[7](2002) 213 C.L.R. 635.
I reject that contention. Storey was concerned with the problem of whether evidence may be admitted in support of a prosecution for an offence notwithstanding that it may tend to show that the accused was guilty of another offence of which he has been acquitted. The case is authority that evidence of that kind is admissible, provided the jury are adequately directed that the evidence is not to be interpreted as denying the acquittal (and subject to the overriding discretion of the trial judge to exclude the evidence if the risk of prejudice to the accused cannot sufficiently be confined without impairing the utility of the evidence). The case is also authority that the accused is also entitled to rely on the acquittal insofar as it might be relevant to his defence in the later trial. But none of that has anything to do with the question of whether an accused may prove an acquittal on another charge in order to discredit a witness who gives evidence against him in the later trial. Nor does the decision in Carroll.
Counsel for the applicant put emphasis on an observation of Barwick, C.J. in Storey that counsel for the accused in that case had cross-examined the prosecutrix in an endeavour to establish that she was not believed by the jury in the earlier trial. He submitted that the observation was a recognition of the propriety of the course that defence counsel had sought to adopt in this case.
Again I disagree. In the passage cited Barwick, C.J. said only that:
“It is not without significance in this connexion that counsel for the accused cross-examined the prosecutrix in an endeavour to emphasize the possibility that she had not been believed by the jury at the trial for forcible abduction. The emphasis that her evidence was then given cannot very well be set against the prosecution when considering whether the accused were given the full benefit of the acquittal even if it is correct to say that, but for the admission of the evidence, the cross-examination in this respect might not have taken place.
I have read and re-read the relevant portion of the summing up. It is set out verbatim in the reasons prepared by my brother Jacobs. It seems to me that the judge unnecessarily discussed the elements of the charge of forcible abduction and unnecessarily put before the jury the possible explanation of the verdict of acquittal. But in the course of that discussion he made no error of fact or of law. What he said was correct but, as I think, unnecessary to be said. It would have been enough to have emphasized that the respondents had been acquitted and that the jury he was addressing must give full effect to that verdict: that they must approach their task in relation to the charges of rape on the footing that the accused had been acquitted of having forcibly taken her away from the Clifton Hill railway station. He made it clear to the jury that they were not to consider whether or not the respondents were guilty of abduction: they could not be tried twice for that crime as they had both been acquitted of it.”[8]
As I read that, his Honour was concerned only with whether the fact of the cross-examination was relevant to the content of the direction which the trial judge had to give.
[8](1978) 140 C.L.R. 364 at 375.
Counsel for the applicant also placed reliance upon a passage in the judgment of Mason, J. in Storey in which his Honour said that:
“There are some cases, and the present is one of them, in which the exclusion of a part of the testimony of a material witness in deference to the principle of res judicata would render the balance of the witness' testimony so incomplete and artificial as to provoke dangerous speculation on the part of the jury. In such circumstances, provided that it works no injustice to the accused, it is preferable that the evidence of the witness should be led and precise instructions should be given to the jury as to the use to which that evidence can be put. In this case the adoption of this course will in all probability advantage the accused because it tends to suggest that the testimony of the witness to the extent to which it was relied on by the Crown to support an earlier charge may have been found to be unacceptable. At the same time the Crown is not precluded from leading evidence which is relevant to the offence charged.”[9]
Counsel submitted that that too showed that it is permissible to use the fact of an earlier acquittal to discredit the testimony of a witness in a subsequent trial.
[9](1978) 140 C.L.R. 364 at 397, emphasis added.
I disagree once more. That passage cited is surely confined to cases in which evidence given by a witness in an earlier trial for one offence is relevant to facts in issue in a subsequent trial for another offence. So, for example, if the subject of the earlier trial were a charge of forcible abduction, as it was in that case, and the subsequent trial is for a charge of rape, the accused’s acquittal in the earlier trial might conceivably reflect on so much of the witness’s evidence in the second trial as concerns facts in issue in the earlier trial upon which the witness there gave evidence. But if the subject of the earlier trial were unrelated to the subject of the second, as it was in this case, the accused’s acquittal at the first trial would be irrelevant to the second.
In this case there was too a further degree of separation from the acquittal at the earlier trial. In Storey the witness was prosecutrix in both trials and her evidence went directly to the facts in issue at each trial. In this case, MPC was not the complainant in the second trial, and he gave no evidence of any fact against the applicant at the second trial, and he was not in any way involved in the facts in issue at the second trial. His involvement was limited to the suggestion that he had influenced other witnesses in the second trial to give false evidence. In those circumstances, the fact of the applicant’s acquittal at the first trial could not be of any more significance than something which reflected obliquely on the credit of those other witnesses.
Counsel for the applicant contended to the contrary that evidence of the acquittal was more than merely collateral, in as much as it showed that MPC had made false allegations, which went to establish that MPC was biased against the applicant, and thus made it more likely that he had influenced other witnesses to give false evidence against the applicant. But that contention is not persuasive. Apart from the fact that the acquittal in the earlier trial does not establish that MPC’s evidence in that trial was false or even that the jury in that case thought it was false, defence counsel did not seek to put to MPC that he had made false allegations against the applicant. The most that was put to MPC on that front was that he had very strong feelings against the applicant; an emotional condition which I should have thought equally consistent with the allegations having been true as that they were false.
Moreover, while the fact of having made false allegations against the applicant might have been relevant as tending to show that MPC was biased against the applicant[10], and thus as making it more likely that MPC attempted to influence other witnesses to give false testimony against the applicant, it could not have established that those other witnesses succumbed to the influence.[11] Their evidence was that that their allegations were true, and it follows from the fact that they swore that their evidence was true, that any evidence of MPC having made false allegations against the applicant went only to their credit and thus was collateral and inadmissible.[12]
[10]Thomas v. David (1836) 7 Car & Pay 350 [173 E.R. 156]; Goldsmith v. Sandilands (2002) 76 A.L.J.R. 1024; [2002] HCA 31 at [35], per Gleeson, C.J.
[11]Attorney General v. Hitchcock (1847) 1 Exch 91 at 260-261 154 E.R. 38; Cross on Evidence, Australian Ed. at [190-40]; R. v. Roberts and Urbanec [2004] VSCA 1 at [91] and [92], per Batt, J.A.
[12]cf. R. v. Phillips (1936) 26 Cr.App.R. 17 at 20; R. v. LSS [2000] 1 Qd.R. 546 at 553-4 at [ 27]–[30].
Admittedly, that may not be an answer in itself. For as McHugh, J. said in Goldsmith v. Sandilands[13]:
“39.Despite the longevity of the finality rule, it has increasingly come to be regarded more as a flexible standard than a fixed rule of law. Starke J recognised this in Piddington v. Bennett and Wood Pty Ltd when he said that the finality rule was ‘a rule of convenience, and not of principle’. Similarly, in Natta v. Canham, the Full Court of the Federal Court said that the rule should be regarded ‘as a well-established guide to the exercise of judicial regulation of the litigation process’. In Natta, the Full Court held that, where a person claimed that she had been injured in a car accident, evidence was admissible to contradict her denial that she had asked another person to stage a car accident so that she could claim compensation. The Full Court said that ‘[a] trial judge should not be precluded from determining in an appropriate case that the matter on which a witness' credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted’.
40. The need for flexibility in applying the finality rule is supported by the difficulty that courts often find in determining whether the evidence concerns a collateral matter or a fact in issue or a fact relevant to a fact in issue. A well-known example is Piddington v. Bennett and Wood Pty. Ltd. where this Court divided 3-2 in holding that the defendant could not call evidence that indirectly tended to prove that a witness was not at the scene of an accident…”
[13](2002) 76 A.L.J.R. 1024; [2002] HCA 31 at [39] and [40], citations omitted.
But here it appears to me that the position is relatively clear. The only bias suggested was bias said to result from the dispute between the applicant and MPC as to the use of the applicant’s children to purchase drugs for MPC. The contention was that MPC was so upset over that altercation that he not only made false allegations leading to the charges concerning himself but sought to influence other witnesses to give false evidence against the applicant in relation to themselves. It was not suggested, and it could not have been, that MPC was biased as a result of his dissatisfaction with the applicant’s acquittal at the earlier trial. That trial did not occur until after the acts of influence or attempted influence which were said to be the result of bias. The acquittal was not in any sense immediately connected with the facts in issue or facts relevant to the facts in issue.[14]
[14]cf Goldsmith v. Sandilands, ibid at [34], per Gleeson, C.J.
Counsel’s final contention was that the judge had at one stage intimated that he would permit defence counsel to cross-examine witnesses on the applicant’s acquittal at the earlier trial, and that defence counsel had shaped the defence case on the faith of that indication and, consequently, that defence counsel should have been permitted to prove the earlier acquittal as a matter of fairness and completeness. In principle that proposition is unexceptionable. But it falls down on the facts. I am not persuaded that the judge did give such an indication or that defence counsel fashioned the defence case in the belief that such an indication had been given and, so far as the transcript goes, it tends to suggest the contrary.
The indication that the judge would allow cross-examination on the acquittal was said to be found in the judge’s ruling on defence counsel’s application that the trial of the charges concerning MPC should precede the trial of the charges concerning JSC. The relevant part of that ruling was as follows:
“In summary, [defence counsel] wishes to explore all the circumstances surrounding MPC’s attendance at the police station at the relevant time. Such an investigation would no doubt be intended to detract from the credibility of the evidence of JSC, in respect of the substantive matters about which she complains. That is the entitlement of the accused.
“[Defence counsel] then contends that the investigation must necessarily be impeded by the constraints which would derive from the fact the accused is awaiting trial for sex offences alleged to have been committed by him upon MPC. [Defence counsel] contends that if the trial in respect of MPC is conducted first, then those constraints will be removed, because any discussion between MPC and JSC about JSC’s complaint at the police station on the relevant occasion, would be irrelevant to the trial in respect of MPC, because it is irrelevant to the origination of MPC’s complaints.
[Defence counsel] then argued that if the accused is acquitted of the charges in respect of MPC, he will have the forensic advantage that he can cross-examine JSC in the trial of the alleged offences relating to her, without the prospect of the prejudicial effect of the jury’s knowledge that that accused is awaiting trial in respect of MPC. If the accused is convicted of the offences against MPC, then [defence counsel] acknowledges that he must make the forensic decision during his cross-examination of JSC at the trial relevant to her, as to whether he allows the interrogation to proceed to the point at which the jury might become aware that the accused has been convicted of offences involving MPC.” [Emphasis added]
…
…I consider that it is appropriate…in this case…to order that the trial of the accused in respect of the offences alleged against MPC, be conducted prior to the trial of the offences alleged against JSC.”
Particular reliance was placed on the words to which I have added emphasis.
I do not see in that or in the rest of the ruling any suggestion that counsel would be permitted to prove the fact of the acquittal or to rely upon it as establishing anything about the truth of the allegations made by JSC. The furthest that his Honour’s observations seem to me to go is that defence counsel would be free to cross-examine in the knowledge that a witness could not blurt out that the applicant had been convicted of offences against MPC.
The reliance which defence counsel was supposed to have placed upon the judge’s ruling was said to be evidenced by the fact that defence counsel put to JSC in cross-examination that MPC had told her that he had been sexually abused by the applicant and that he had endeavoured to influence her to make false allegations against the applicant, and that she had done so. I do not find that convincing. JSC denied each of those suggestions and defence counsel did not say a word to her about the applicant’s acquittal at the earlier trial.
Further evidence of reliance was said to inhere in the fact that defence counsel put to the applicant’s son, MJC, that MPC had told the witness that he, MPC, had been sexually assaulted by the applicant and had attempted to persuade the witness to give evidence against the applicant in support of MPC, and that defence counsel had then asked the witness the following questions:
“[Defence counsel] In the year 2001, about June of 2001, the matter involving your father coming on for trial in relation to JSC---?---Yes.
[Defence counsel] ---and your uncle?---Yes.”
The difficulty with that proposition is that as soon as those questions had been asked, the prosecutor objected to any mention of the earlier trial or the acquittal, and defence counsel appears to have agreed or at least not to have opposed the idea that it would be impermissible to mention those matters. Thus, as it is recorded:
“[Prosecutor] Objection, Your Honour I have a matter I want to raise in the absence of the jury….
[Jury sent out]
[Prosecutor] Your Honour, it is, in my submission, totally impermissible to inquire of this witness, which my friend is now embarking on, what happened in June 2001 in Ballarat in relation to any trial involving the uncle.
[Defence counsel] Can I say that I object to that, I was---
[His Honour] Can I hear his objection first and then give you the opportunity?
[Defence counsel] You are guessing now?
[His Honour] Yes.
…
[Prosecutor] Your Honour, whatever happened in any other trial, it is impermissible to inquire as to the result---
[His Honour] Yes.
[Prosecutor] ---or even to alert the jury there was an outcome. It is totally unhelpful to the jury for them to be---
[His Honour] It might go close to causing – to aborting this trial, that’s the difficulty.
[Prosecutor] Yes, that’s why I rose at this point rather than let it go.
[His Honour] I understand. Let me hear [defence counsel] now.
[Defence counsel] I wasn’t going to ask him a question about it.
…
[His Honour] What do you propose to put to this witness in respect of the situation in relation to the brother [MPC]?
[Defence counsel] That as a result - that he was walking along the street, that he was assaulted, that he was told certain things, I think, that as a result of what he was asked to do or told to do he than took out an intervention order in order to stop [him from attacking him]--.”
If defence counsel had conceived himself entitled to mention the previous trial and to put the fact of acquittal, I should have expected him to say so immediately the prosecutor took objection to the mention of the previous trial or the acquittal, or at least when the judge observed that any mention of such things might result in the current trial being aborted.
Counsel for the applicant submitted that what then occurred at the trial should be understood as confined to the question of whether reference might be made to the intervention order proceeding and was not intended to foreclose or at least would not have been interpreted by defence counsel as foreclosing the admissibility of the earlier trial or the acquittal. That submission is also unconvincing. Apart from its inherent improbability, the judge concluded the debate with a ruling in which his Honour held that:
“…no reference should be made to the intervention order or to other unassociated legal proceedings.”,
If defence counsel had interpreted the ruling about the order of trials in the way which is alleged, he would surely have thought that this further ruling was wholly inconsistent with it. In those circumstances one would expect defence counsel immediately to point out and to complain about the inconsistency and the invidious position in which it placed him. He was after all very experienced criminal counsel. The fact that he said nothing of the sort speaks volumes to the contrary.
Finally, counsel for the applicant referred to the exchange, which I have already mentioned, which occurred when the informant was re-examined about who it was that had requested the excision from the accused’s record of interview of any reference to MPC. When that happened defence counsel complained to the judge that:
“[Defence counsel] By raising these matters with this witness in re-examination, it gets out that my client is charged with offences relating to [MPC].”,
and on that basis defence counsel submitted that he should then be permitted to tell the jury that the applicant had been acquitted of those offences.
That too was said to show that defence counsel had proceeded in the earlier part of the trial on the basis that he would be entitled to prove the fact of the acquittal, and on the faith of that assumption had put in evidence that MPC had alleged that the applicant had sexually abused him, so that it was unfair and unjust to deprive him of that ability.
In my opinion that contention is untenable. It is manifest that defence counsel had understood that the earlier ruling precluded him from referring to the earlier trial and acquittal. The exchange between defence counsel and the judge puts it beyond doubt:
“[Defence counsel] Your Honour, you forbade me yesterday from going into events about MPC and that sort of thing and I followed your instructions.
[His Honour] What did I forbid you from doing?
[Defence counsel] Remember yesterday, matters involved in other court cases should be not referred to and I have kept away from it. All I wanted to establish – and your Honour is fully aware what I was establishing was that there was a row.
[His Honour] Yes, you certainly established that.
[Defence counsel] And that he had told the police that. I don’t understand why my learned friend want to bring in A, that there was another court hearing or other charges, and B, that I asked it to be excised. I never asked for anything to be excised from this record of interview.” [My emphasis]
So far from evidencing a belief on the part of defence counsel that he would be entitled to put the fact of acquittal at the earlier trial, the exchange which arose out of the re-examination of the applicant presents as a further indication that counsel had no such expectation and was seeking to find another basis to get in what he knew he was not otherwise entitled to get in.
Conclusion
In the result, I would refuse the applicant’s application to add the proposed ground 1(e) and the application for leave to appeal.
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