R v Rahme
[2004] NSWCCA 233
•14 July 2004
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Charbel Rahme [2004] NSWCCA 233 revised - 28/07/2004
FILE NUMBER(S):
60364/03
HEARING DATE(S): 16 April 2004
JUDGMENT DATE: 14/07/2004
PARTIES:
Regina
Charbel Rahme
JUDGMENT OF: Sully J James J Hulme J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02 /11/ 0426
LOWER COURT JUDICIAL OFFICER: Woods DCJ
COUNSEL:
P. Ingram - Crown
P. Byrne SC/G. Brady - Appellant
SOLICITORS:
S. Kavanagh - Crown
Phillip Stewart - Appellant
CATCHWORDS:
Sexual intercourse with child - child prostitution - detaining for advantage - unreasonable verdicts - inconsistent verdicts - evidence of previous sexual experience or activity of complainant - Criminal Procedure Act s 105 (now s 293) - probative value of evidence
LEGISLATION CITED:
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
DECISION:
Appeals against the appellant's convictions on counts 1, 3 and 7 allowed, the convictions on those counts set aside and quashed and verdicts of acquittal entered
(2) Appeals against the appellant's convictions on counts 4 and 5 allowed, the convictions on those counts set aside but there be a new trial of the appellant on counts 4 and 5.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60364/03
SULLY J
JAMES J
HULME J14 July 2004
REGINA v CHARBEL RAHME
Judgment
SULLY J:
Introduction
In March 2003 the appellant, Mr. Rahme, stood trial in the District Court at Sydney before his Honour Judge Woods QC and a jury. He was presented for trial upon an indictment containing seven counts.
Count 1 charged that between about 4 January 2001 and 8 April 2001 he had sexual intercourse with a named complainant N, a child then between the ages of 10 years and 16 years, namely of the age of 15 years. Count 2 charged that between the same dates he had supplied a prohibited drug, namely cocaine, to the same complainant. Count 3 charged that between the same dates he coerced N, being then aged 15 years, to participate in an act of child prostitution with a person whose name is unknown. Count 4 charged that between the same dates he received certain money knowing that it was derived from an act of child prostitution. Count 5 charged that between the same dates he was a person capable of exercising lawful control over certain premises at Rockdale in which the complainant N, then being aged 15 years, participated in an act of child prostitution. Count 6 charged that between the same dates he assaulted the complainant N occasioning to her actual bodily harm. Count 7 charged that between the same dates he detained the complainant N with intent to hold her for his advantage.
The offence charged in Count 1 attracted upon conviction a statutory maximum penalty of imprisonment for 8 years. The offences charged in Counts 2, 3 and 4 each attracted upon conviction a statutory maximum penalty of imprisonment for 10 years. The offence charged in Count 5 attracted upon conviction a statutory maximum penalty of imprisonment for 7 years. The offence charged in Count 6 attracted upon conviction a statutory maximum penalty of imprisonment for 5 years. The offence charged in Count 7 attracted upon conviction a statutory maximum penalty of imprisonment for 14 years.
The appellant pleaded not guilty to all seven charges thus preferred against him. The jury found him guilty on each of Counts 1, 3, 4, 5 and 7; and not guilty on each of Counts 2 and 6. The appellant stood for sentence on 30 May 2003; and he was sentenced to various terms of imprisonment which were partially cumulated so as to produce an end result of imprisonment for 8 years commencing on 1 May 2003 and expiring on 30 April 2011, with a non-parole period of 5 years and 4 months commencing on 1 May 2003 and expiring on 30 August 2008.
The appellant now appeals against each of his four convictions; and he applies simultaneously for leave to appeal against the sentences passed upon him
The Competing Cases at Trial
The written submissions lodged on behalf of the appellant contain a helpful précis of the competing cases. It is convenient to reproduce it by way of providing an overview of the course of evidence at the trial. It will be necessary, when dealing with particular grounds of appeal, to return in more detail to parts of the evidence given at trial.
The Crown case thus summarised was to the following effect:
“(i) ..(N).. ran away from her parents’ home near Newcastle on 4 January 2001. She was 15 years old. She caught a train to the railway station at Strathfield on that day. While she was sitting outside the train station wondering what to do she was approached by the accused. The accused was at the station with his father Cliff Rahme and his sister Sonia Rahme. They had arrived in Cliff’s car.
(ii) The accused spoke to her and convinced her, with the assistance of Sonia and Cliff that she should stay with the Rahmes. She travelled to the accused’s home where she stayed for about 2 months.
(iii) After about a month of staying at the accused’s house the accused seduced the complainant knowing that she was 15 years of age and embarked on a sexual relationship with her in the home.
(iv) Shortly after commencing the sexual relationship the accused asked the complainant to accompany him to his work at the Delarose brothel. She did so. Thereafter, for approximately a month, she accompanied the accused to the brothel when he was working, approximately 4 days a week.
(v) During that period the accused introduced ..(N).. to cocaine and supplied cocaine to her on a regular basis.
(vi) The complainant only attended the brothel with the accused.
(vii) After a period of time the accused became violent towards the complainant. They had a falling out and the accused told the complainant she had to work as a prostitute in order to pay for the cocaine she had used.
(viii) The accused forced her to work as a prostitute to meet her cocaine debt.
(ix) The complainant commenced working as a prostitute about three to four weeks prior to 8 April 2001.
(x) During this time she had stomach pains from working and Cliff took her to his doctor.
(xi) She continued to use cocaine.
(xii) The accused arranged with his cousin Nick Ziena to prepare a false birth certificate for the complainant.
(xiii) When the complainant decided she wanted to leave she attempted to do so but the accused prevented her. He did so initially by assaulting her and striking her over the head with a gun. He then continued to detain her by threatening her and her parents.
(xiv) Eventually the complainant left with the assistance of a man called Danny who worked at the brothel.
(xv) She was collected by her parents who took her back to Newcastle.
(xvi) After a period of time at her parents’ home she returned to the Delarose in order to assist a friend to leave the Delarose as well. She decided that her friend was okay and she once again escaped from the Delarose.”
The defence case as thus summarised was to the following effect:
“(i) ..(N)..was involved in an internet chat room, through which she met Mark Boumansour.
(ii) The complainant, over the internet chat room spoke to Mr. Boumansour about moving to Sydney to make money as a prostitute so that she could visit her boyfriend overseas. Mr. Boumansour knew the Rahme family and suggested that she could work at the Delarose.
(iii) The complainant made arrangements for Mr. Boumansour to collect her at the Strathfield Railway Station. Mr. Boumansour did so and then drove the complainant to the Delarose and introduced her to Cliff Rahme.
(iv) The complainant told Cliff Rahme that she wanted to work. She further told the people at the Delarose that she was over 18 but couldn’t produce any identification.
(v) The complainant was allowed to stay at the Delarose with other girls as she indicated that she was arranging for identification to be sent to her. The Rahmes anticipated that the complainant would work for them. Some of the girls, who were working, stayed at the Delarose.
(vi) The complainant did not work, however, she stayed at the Delarose and assisted with minor jobs around the Delarose.
(vii) The complainant stayed at the Delarose for about 3 weeks. At the end of the 3 weeks the complainant still did not have identification. Cliff Rahme learnt that the complainant was under 18 and removed her from the Delarose to the Rahmes’ home.
(viii) The complainant stayed at the Rahmes’ house for 2 nights only. She was asked to leave by Daad Rahme. She returned to the Delarose briefly and then was asked to leave.”
Ground 1 (Conviction)
The ground is:
“that the verdicts of guilty were unreasonable and unsupportable by the evidence.”
The relevant principles are not in doubt. They are established by the decisions of the High Court of Australia in M v The Queen (1994) 181 CLR 487, in particular at 492-495; and in MFA v The Queen (2002) 193 ALR 194, in particular at paragraphs [25] and [59].
The submissions for the appellant, and in particular the written submissions, isolate five topics, an examination of any or all of which is said to entail that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of any one of the five counts upon which the jury found that he was guilty. The written submissions are, with respect, so well and so clearly drawn that it is convenient, as to each of the nominated topics, to begin the necessary discussion by quoting the particular submission.
The first of the five topics is dealt with as follows in the written submissions:
“17.Version of the Complainant’s first attendance to the Delarose
Complainant’s version
(i) The complainant gave evidence that on 4 January 2003 (sic: but read 2001) she caught a train to Strathfield railway station (T. 56 – 57).
(ii) She was met there by the appellant and his father, Cliff Rahme and his sister, Sonia Rahme, and she then travelled directly to the Rahmes’ house (T.59, 228.15)
(iii) The complainant stayed at the Rahmes’ house for approximately a month before she began a sexual relationship with the appellant.(T 228)
(iv) She did not go to the Delarose until not long after she commenced a sexual relationship with the appellant (“maybe a week, if that), being at least the beginning of February 2001. (T 62, T228.45)
(v) At least on the first 2 days no one knew her second name, but just knew her as Nicky.(T 250)
(vi) The complainant said in re-examination that she may have given her number to Sonia not long after she met her. (T 302)
(vii) The complainant’s parents’ phone number was an unlisted number.
(viii) The complainant stated that it would be impossible for a phone call from the Delarose to her parents’ place to have been made on 4 January 2001. (T 250)
(ix) The complainant further said that it would not be possible that calls were made to her parents’ place from the Delarose on 7 and 8 January 2001. (T 251)
Evidence contradicting Complainant’s Version
(x) Telephone records obtained by the prosecution for the “blue phone” at the Delarose showed that there was a telephone call from the Delarose to the complainant’s parents’ place on the very evening that she arrived in Sydney, that is 4 January 2001.
(xi) Further phone calls were made from the blue phone at the Delarose to the complainant’s parents’ home on 7 and 8 January 2001.
(xii) This evidence of phone calls really has no other rational explanation other than the complainant was at the Delarose on 4 January 2001.
(xiii) The fact that the complainant went straight to the Delarose on the day she arrived in Sydney is supported by the evidence of Mark Boumansour, Laticia Barton, Kim McLeod and Sonia Rahme.
(xiv) Mark Boumansour gave evidence that he collected the complainant from the Strathfield Railway Station at her request and delivered her directly to the Delarose (T 681-682). He said that she had told him she wanted to work as a prostitute to make money to visit her boyfriend in the States (T 679).
(xv) Sonia Rahme gave evidence that she did not meet the complainant at the railway station (T 731).
(xvi) Kim McLeod gave evidence that she worked at the Delarose for the three weeks prior to 26 January 2001 (T 720), coming down from Brisbane to do so. She was able to fix the date firmly due to returning to Queensland on 26 January 2001 for her boyfriend’s birthday on 27 January 2001. (T 720.31)
(xvii) During this time she met the complainant at the Delarose, and shared a room with her. (T 720-721)
(xviii) Laticia Barton gave evidence that the complainant came to stay with her for a short period of time (T 707). She further gave evidence that when she first met the complainant at the Delarose she was there with a guy (T 708).
(xix) The appellant gave evidence that the complainant was brought to the Delarose by Mark Boumansour (T 612).
Conclusion
(xx) The overwhelming evidence was that the complainant went directly to the Delarose from Strathfield Railway Station on 4 January 2001.
(xxi) Clearly the complainant’s version of events in relation to being collected by the accused, taken to his home, seduced by him and taken to the brothel at his suggestion, is not true.
(xxii) The basis on which the Crown case was run in relation to counts 1, 3 and 7 falls if the complainant went directly to the Delarose. The sexual relationship alleged with the appellant commenced, on the Crown case, after the complainant lived with the appellant and his family for a month. Further, if the complainant attended the Delarose on 4 January 2001 then it would be difficult to accept she attended as anything other than a volunteer, undermining completely the basis of count 3 and count 7.”
Evidence led at trial, and uncontradicted, established that three telephone calls were made from the Delarose brothel on, variously, 4, 7 and 8 January 2001. Each such call was made to a land-line then leased by the complainant’s father. The service number was a silent one. According to the relevant records, the call made on 4 January was made at about 11.54 p.m; that of 7 January was made at about 4.39 p.m; and that of 8 January was made at about 9.40 a.m. According to the records, the call of 7 January lasted for 1 second. The calls on 4 and 8 January are marked in a fashion indicating: “(That) a call was originated but either the call was not answered by the called party, the call number was engaged or an invalid service number was dialled”. The evidence produced by the telephone service provider does not identify, and there is no other way of identifying independently, the identity of the person who, variously, made or attempted to make any one of the three calls. The complainant in her evidence at trial was adamant that it was not possible that such calls had been made; and in particular that it was not possible that a call had been made on 4 January.
It seems to me to be beyond dispute that in fact an attempt was made at almost midnight on 4 January to place a telephone call from the premises of the brothel to the home of the complainant’s father. According to the complainant, she was at that stage known to the appellant and the members of his family only by her first name in its then colloquial form. There is no evidence suggesting that by mid-night, or thereabouts, on 4 January the complainant had given her father’s unlisted telephone number either to the appellant or to anybody else then having access to the relevant telephone at the brothel premises.
In those circumstances it seems to me that the overwhelming inference is that the complainant was physically present within the brothel premises at about mid-night on 4 January. Such a conclusion entails that the complainant’s evidence at trial, insofar as it asserted that she had been taken directly from Strathfield Railway Station to the appellant’s family home, and that she had not been physically present at the brothel premises at any time until quite some time later at or about the beginning of February 2001, cannot be correct.
As has been noted in the previous quotation from the appellant’s written submissions, the appellant argues for a conclusion that the complainant went directly to the brothel from the Strathfield Railway Station on 4 January. The appellant’s submissions then build upon that proposition in the way set out more particularly in (xxi) and (xxii).
The examination, the cross-examination and the re-examination of the complainant did not really engage the question whether she could offer any, and if so what, explanation for, in particular, the call of 4 January. That being so, the evidence at trial did not really progress beyond the bare proposition that, on the view most favourable to the appellant, the complainant was physically present at the brothel shortly before mid-night on 4 January. It was the appellant’s case at trial that such fact was consistent with the complainant’s having gone directly to the brothel upon her arrival in Sydney, and by pre-arrangement with in particular the man Mark Boumansour, in order to obtain work as a prostitute in the brothel. That version drew some support from the evidence called in the appellant’s case at trial from Mark Boumansour, Laticia Barton, Kim McLeod and Sonia Rahme.
There are, in my opinion, two flaws in the reasoning upon which the appellant relies. First, it was open to the jury to reject the evidence given by the four witnesses called by the appellant; and it is not unlikely, given the verdicts returned by the jury, that the jury did in fact reject that evidence. Secondly, the jury might well have thought that the complainant had stopped off at the brothel in company with the appellant and en route to the appellant’s home; and that she had attempted while there to place a call to her father’s unlisted telephone number. It was open to the jury to accept the complainant’s evidence that her subsequent drug addiction had caused her recollection to miscarry as to such an incident. There was no evidence fixing in any precise way the time at which the complainant arrived in Sydney; the time at which she was first collected by the appellant at the station; or the time at which she first arrived at the appellant’s family home.
In those circumstances, I do not see why it was not reasonably open to the jury to take the view that some at least of the things said by the complainant were manifestly unreliable; but that the broad thrust of what she had to say with regard to the matters giving rise to the particular counts in the indictment was sufficient to persuade them beyond reasonable doubt of the appellant’s guilt as charged.
The second of the five topics identified in the written submissions of the appellant is there canvassed as follows:
“18. The Complainant’s stay at the Rahmes’ house
Complainant’s version
(i) The complainant gave evidence that she lived at the Rahmes’ house for approximately 2 months. (T 236)
(ii) She further gave evidence that she travelled to and from the Rahmes’ house and the Delarose, four or so times a week for over a month. (T 229)
(iii) She gave evidence that for the first month she had very little to do with the appellant. (T 230)
(iv) She further stated that for the first month she barely left the house except to go to dance classes with Sonia. (T 230, 239)
(v) The complainant drew a map of the interior of the house and accepted the proposition that it would be absolutely perfect. (T 239, 245)
Evidence contradicting Complainant’s version
(vi) The most startling evidence contradicting the complainant’s version is that the complainant could not pick out the house about 7 months later, even though she drove directly past it on a number of occasions. She indicated that it looked familiar, but also said that about the house next door and a house in Fountain Street. (T 65, 236)
(vii) Opposite 12 Walsh St, Croydon Park is a very distinctive block. A block which the complainant indicated would be memorable. (T 238)
(viii) Further, the complainant did not know the address, nor even the number of the house (T 65). Though she stated that she gave the address to her boyfriend to send a letter to her (T 233). But that she had written down the address in her address book wrongly. (T 234)
(ix) The complainant was able to pick out a doctor’s surgery that she had been to once (T 240), indicate one of two buildings in which Laticia Barton lived in which she had stayed for 2 days (T 240), and point out landmarks on the way to picking out Jason’s house, a drug dealer to whom she went a couple of times. (T 267)
(x) The complainant’s map of the house was not the same as the one drawn by Terry Hawkins, who went to the house for the purpose of drawing a sketch (T 414) although he, it is submitted unusually prevaricated about how accurate his sketch would have been. (T 414)
(xi) Sonia Rahme gave evidence that the complainant stayed at the house for 2 nights. (T 731)
(xii) Sonia Rahme further gave evidence that she has never been to dance class. (T 731)
Conclusion
(xiii) The above evidence points overwhelmingly to the complainant not staying at the Rahmes’ house for 2 months.
(xiv) That evidence in conjunction with the matters raised at paragraph 17 must lead to the conclusion that the complainant’s version of how she came to be at the Delarose cannot be true. That undermines the basis of the Crown case in relation to counts 1, 3 and 7.”
I do not agree with the proposition advanced in paragraph (xiii). It was open to the jury to reject the relevant evidence given by Sonia Rahme. It was reasonably open to the jury to take the view that the obvious deficiencies in the plaintiff’s recollection were explicable upon the basis of a combination of circumstances: her very young age at the relevant times; the circumstances generally, as she explained them, of her going to and from the relevant premises while she had been staying there; and the effect of drug abuse upon her powers of detailed recall.
The third of the five topics identified by the appellant’s written submissions is there canvassed as follows:
“The complainant commencing work as a prostitute
The Complainant’s version
(i) The complainant gave evidence that she was working as a prostitute from the moment she first started working there and that she worked for weeks, maybe a month if that. (T 87)
(ii) The complainant gave evidence that she started working mid-March until 8 April 2001, working for about 3 to 4 weeks. (T 229, 242) Further, that she was taken to the doctor by Cliff Rahme after working a particularly busy Saturday night sometime between mid March and 8 April. (T 242)
(iii) The complainant went to the doctor and obtained only 1 prescription in the time she was in Sydney. (T 242)
(iv) The complainant said that she stayed at the Delarose only once she started working as a prostitute. (T 229)
Evidence contradicting Complainant’s version
(v) The doctor’s prescription, supposed to corroborate the complainant’s evidence, had a date of 5 February 2001.
(vi) Kim McLeod gave evidence that the complainant was sharing a room with her for the 3 weeks prior to 26 January 2001 (T 720-721). Further that while she was there the complainant did not work as a prostitute (T 721) and that she would have seen if the complainant did work (T 721).
(vii) Laticia Barton said that the complainant was staying at the Delarose (T 708), that the complainant was not working (T 709) and that the complainant could not have worked without being seen by her (T 709).
Conclusion
(viii) The prescription, far from supporting the complainant, actually leads to the conclusion that her version of events cannot be true. It is impossible, the appellant submits, that the complainant could be so mistaken as to the dates and times that she worked as a prostitute. If it is simply a mistake then the complainant is out by over a month, that is more than twice the length of time she initially indicated.
(ix) The evidence that she only stayed at the Delarose once since she started working is contradicted by both Kim McLeod and Laticia Barton. That evidence, coupled with the prescription, leads inevitably to the conclusion, the appellant submits, that the complainant cannot be believed.”
As to the proposition advanced in (viii), I agree that the dating of the medical prescription does not support the dating given by the complainant in her version of events. To that extent it must be accepted, I think, that the complainant was plainly mistaken in certain aspects of her dating of relevant events. It does not follow, however, that to establish that she was mistaken establishes necessarily that she was untruthful either as to the relevant dating or as to the balance of her version.
As to the proposition advanced in (ix), it is no doubt the case that the evidence given by Kim McLeod and Laticia Barton was contradictory of the complainant’s own evidence. There was, however, no obligation on the jury to accept the evidence of Kim McLeod or of Laticia Barton.
The fourth of the five topics identified by the appellant’s written submissions is there canvassed as follows:
“20. The complainant being detained against her will
(i) The evidence given by the complainant in relation to her inability to leave the Delarose is clearly adversely affected by the matters set out in paragraphs 17, 18 and 19. Moreover, there were startling inconsistencies in her evidence and between her evidence and what she had stated to the police.
(ii) One of the significant episodes given by the complainant about her detention (T 107) was where she indicated she was hit over the back of the head by the appellant with a gun. The jury acquitted the appellant on count 6 which reflected that episode. That was the first time that the complainant attempted to leave (T 263). The evidence the complainant gave did not reflect what she had initially said to the police. (T 262). The difference was significant, with a complete change in the complexion of the event. On the version to the jury the complainant simply, when confronted by the appellant, turned and walked to the door and was struck once reaching the door. On the version she gave the police the appellant punched her in the stomach, she pushed him, turned and ran and was struck from behind.
(iii) The evidence given by the complainant in relation to the first time that she saw her parents was also different in a significant way to what she had told the police. At T 90 she gave evidence that when she first told John Rahme that she was meeting her parents, John told her that Charlie would be watching, however she didn’t see Charlie watching. He was however waiting for her when she returned (T 275). The complainant had told the police that the appellant had turned up an hour after she called her parents, came back later, drove her to the train station to meet her parents, and told her she was not to go with her parents (T 278-279).
(iv) Bearing in mind that this is the first time she had seen her parents, and the complainant gave evidence that she didn’t leave because of the fear engendered by the appellant it could not reasonably be accepted that she simply forgot that the appellant came to the Delarose, took her to see her parents and told her not to go with them.
(v) The complainant’s mother gave some support to the complainant’s version, in relation to conversations and the demeanour of the complainant. That evidence, however it is submitted was unreliable. First she was unable to say when she had come down. Second, and more importantly, the evidence is contradicted by the complainant’s father who gave evidence that the complainant appeared calm and stated that she did not wish to return home.
(vi) The evidence the complainant gave about the second time she left the Delarose changed significantly within 4 pages of transcript (T 112, 115). She gave evidence at T 112 effectively about an incident which, even on her evidence, just didn’t occur. (T 273)
(vii) On her own evidence the complainant left the Delarose on a number of occasions, even close to 8 April. She left to go to Laticia Barton’s (T 269-270), though that was before the allegation in count 6. She went out to score from Jason, towards the end (T 267). She wrote to Scott about checking the post office every day.
(viii) The complainant gave evidence that she returned to the Delarose after “escaping” the first time. (T 286)”
In connection with the foregoing submissions, the significant matter, in my opinion, is the acquittal of the appellant on Count 6. It is clear that the jury was not prepared to accept beyond reasonable doubt the version given by the complainant in support of Count 6. It seems to me to be a fair inference that the explanation for that conclusion is to be found in the starkness of the contrast between the version initially given to the police and the version given before the jury.
I cannot see for my own part any logical basis upon which the jury, having taken that stance in connection with Count 6, could have been persuaded nevertheless to accept beyond reasonable doubt the balance of what the complainant had told them about her alleged detention. The contrasts and the inconsistencies to which the appellant’s submissions invite attention are, in my opinion, substantial and troubling. Even allowing to the full for the factor of demeanour, it seems to me that the jury, having had a reasonable doubt on Count 6, ought to have had, in the M sense, a reasonable doubt on Count 7.
I would uphold Ground 1 in its application to Count 7 and quash the conviction on that count, directing in its stead the acquittal of the appellant.
The fifth and final of the topics to which the written submissions of the appellant invite attention is there canvassed as follows
21. The Complainant working as a prostitute at the Delarose
The Complainant’s version
(i) The complainant gave evidence that she was forced to work as a result of the appellant telling her she had to pay for the cocaine she had used. (T 77)
(ii) Evidence was given by the complainant that the appellant had cocaine at the Delarose all the time (T 285-286) and that he had a brick of it upstairs (T 286).
(iii) At T 122 the complainant stated that Cliff spoke to her about a fake birth certificate and then Nick Ziena asked her questions about the fake birth certificate. She effectively denied she tried to get the fake birth certificate off Nick Ziena (T 289).
(iv) The complainant gave evidence that she went to the Rahmes’ for a “cooling off period” as a result of police attendance at the Delarose.
Evidence contradicting Complainant’s version
(v) The jury rejected the evidence of the Complainant in relation to the appellant supplying the complainant with cocaine.
(vi) A search of the Delarose by the police failed to locate any cocaine at all (Costello T 521)
(vii) Nick Ziena gave evidence that he was asked by the complainant, not the accused, to make a false birth certificate. (T 479, 493). Further, that no one had asked him to speak to her about a fake birth certificate (T 482).
(viii) No evidence was lead by the prosecution to support the complainant’s evidence that she left the Delarose to go to the Rahmes’ house as a result of police attendance.
Conclusion
(ix) Coupled with the matters contained in paragraphs 17 – 20 the above matters support significantly the version put forward by the appellant rather than that version put forward by the complainant.
(x) Particularly the evidence of Nick Ziena supports the fact that the complainant was attempting, herself, to obtain false identification in order to be able to work at the Delarose. That is completely consistent with not being able to work there until she produced identification.
(xi) The version of her attendance at the Rahmes’ surely, if it occurred, could have been supported by police records to show an attendance at the Delarose at the time alleged by the complainant.”
It is, of course, the case that as the appellant’s submissions point out, the jury did not accept beyond reasonable doubt the complainant’s assertion that it was the appellant who had first supplied her with cocaine. It was, however, the complainant’s evidence that persons other than the appellant had also provided her with cocaine. It was a recurring assertion of the complainant throughout the course of her evidence at trial that the adverse effects of her cocaine abuse had affected, at least to some extent, her capacity to recall matters of particular detail. It does not seem to me to have been illogical for the jury to have taken the view that the complainant had indeed been supplied with cocaine at the brothel, but that there was at least a reasonable possibility that the supplier had been someone other than the appellant himself.
As to the evidence given by Nick Ziena, it was open to the jury to reject that evidence; and the verdicts ultimately returned by the jury suggest to me that the jury did in fact reject that evidence.
I agree with the submission that the evidence concerning the police attendance was left in a most unsatisfactory condition; but I do not agree that the particular blemish was destructive of the credit overall of the complainant.
I have dealt separately with the submissions put separately by the appellant as to each in turn of the five topics upon which the appellant rests Ground 1. In doing that I have tried to keep in mind, in the way that the authorities say should be done, that the trial of the appellant was very much an example of a trial in which the impressions made upon the jury by the witnesses as the jury saw and heard them, and in particular the impression made by the complainant and by the appellant as the jury saw and heard them, must be taken into account with a proper respect for the jury’s own role in the trial.
For the whole of the foregoing reasons, I would uphold Ground 1 in its application to the conviction on Count 7; and I would reject Ground 1 in its application to the convictions on Counts 1, 3, 4 and 5.
Grounds 2, 3 and 4 (Conviction)
The grounds are:
“2. that the verdict of guilty in relation to Count 3 was inconsistent with a verdict of not guilty on Count 2;
3. that the verdict of guilty in relation to Count 7 was inconsistent with a verdict of not guilty on Count 6;
4. that the verdicts of guilty were inconsistent.”
The relevant principles are those stated by the High Court of Australia in Mackenzie v The Queen (1996) 190 CLR 348 at 365 and following.
So far as concerns Count 3, a convenient starting point are some extended directions given to the jury by the learned trial Judge in response to a note from the jury. His Honour said this:
“Members of the jury, that charge is that between about 4 January 2001 and 8 April 2001 at Sydney in the State of New South Wales, the accused did cause ..(N).. a child then under the age of 18 years, namely the age of 15 years, to participate in an act of child prostitution with a person whose name is unknown.
Now the word “cause” is a word which can have many meanings in different contexts. In the universities there are whole courses set on the meaning of the word “cause” and it can have a great deal of argument attached to it. However, in a court of law the word “cause” depends on the way the Crown presents its case.
You might think to yourself, well, does it mean that the accused simply allowed the girl to be on the premises, thereby bringing about the result that she prostituted herself? Well, that sense of the word is not available to you. The way the Crown has presented its case here, the word “cause” means “forced”.
The relevant evidence is that which was given by ..(N).. where she said that in the relationship between the two of them, it was verbal and it was physical as well. She said he kicked and punched her. She said, he made me work in the brothel. “We had been fighting really bad, it was getting a lot worse and he said that I had to work”.
Then you recall she gave evidence that he pulled her along and she was dressed in certain clothes, she sat in the corner and started to cry. Then she indicated in her evidence that she was very reluctant and that she was in effect threatened and forced into acts of prostitution, in particular, the first act of prostitution about which she gave the most evidence.
So I repeat, the meaning that you should give and must give to the word “cause” in count 3, is “force”. So you would understand it as requiring proof to the requisite standard, that at the relevant place on the relevant date, the accused did force ..(N).. of the relevant age, to participate in an act of child prostitution.”
Both the Crown Prosecutor and the accused’s counsel at trial indicated expressly that they did not seek any further directions on the topic.
The effect of these directions was to instruct the jury, correctly as I respectfully think, that the causation upon which the Crown case depended was a composite of direct physical violence; of the enticing by the appellant of the complainant into a cocaine habit; and of verbal abuse and emotional pressure.
I do not see why it was not open to the jury to come to conclusions that it remained open on the whole of the evidence as a reasonable possibility that it was someone other than the appellant who had supplied cocaine to the complainant; but that it had been established to the jury’s satisfaction beyond reasonable doubt that the appellant had “caused” in the sense explained in the extended directions above quoted, the complainant to take part in an act of child prostitution.
In my own opinion the verdicts on Counts 2 and 3 are not inconsistent.
As to the verdicts on Counts 6 and 7, I have come to the contrary conclusion. I have said in the preceding section of this judgment all that I usefully can say in that connection. As there indicated, I am of the opinion that the conviction on Count 7 should be quashed and replaced by a directed judgment of acquittal.
Ground 5 (Conviction)
The ground is:
“that the Crown addressed the jury on a different factual basis than (sic) that on which it opened, and one not supportable by the evidence, leading to a prejudice to the accused.”
The written submissions of the appellant put these propositions:
“40. In the learned Crown’s address, he virtually conceded difficulty with the complainant’s evidence about her initial attendance at the Delarose. That was as a result of the phone call made from the Delarose on 4 January 2003 (sic). Effectively the Crown then varied the Crown case by addressing on the basis that even though there were difficulties in the complainant’s evidence about when she commenced at the Delarose, she was treated in an extraordinary fashion from which could be inferred she had a sexual relationship with the appellant.
41. This, in the appellant’s submission, was a change of theory that was not available on the evidence. This allowed, unfairly, a minimisation of the difficulties of the Crown case.”
I have not seen a transcript of the concluding addresses of the Crown Prosecutor and of counsel at trial for the appellant. There are, however, two passages in the summing-up which seem to me to justify a conclusion that, insofar as there was any change in the Crown position, it did not result in any prejudice to the appellant.
At page 40 of the summing-up the learned trial Judge charged the jury in these terms:
“However it is hard to avoid the conclusion that telephone records of 4 January 2001 and the following day demonstrate a telephone call to the …(parents’)… house ……… from a telephone at the brothel………..
It is difficult to think, members of the jury, of any way this could have occurred if the story told by ..(N).. is true – at least in its initial part, that she was picked up on 4 January 2001 at Strathfield Station and taken to 12 Walsh Street where she stayed for several weeks. If you accept that ..(N).. has given a false version about being picked up at Strathfield Station, and not being taken to the brothel for at least several weeks, you may conclude that she has set out to distort the truth. If so, you may conclude that none of her story, and certainly none of her story which is not convincingly supported by independent evidence, should be accepted.”
Later, and at page 43 of the summing-up, his Honour charged the jury as follows:
“(Counsel for the appellant at trial) submitted to you that you would regard it as a reasonable possibility that the complainant ..(N).. was attractive to the brothel managers as a potential source of future income; that they were carefully keeping her out of actual prostitution until clear evidence arrived that she was actually over eighteen. If you regard this as a reasonable possibility you must find the accused not guilty of counts 4 and 5. On the other hand, you might ask whether given her appearance as shown in Exhibit AA, and before you in the witness box, anyone seriously thought that evidence that she was over eighteen was ever going to arrive unless it was faked. You might think that it would have been an unusually charitable brothel keeper who happily would keep a fifteen year old on the premises, in virtual seclusion for several weeks, or longer, living in a kind of hotel room at their expense, without putting her to work. You might think that this would be a fairly improbable scenario, but as I say, if you regard the version put forward by ..(counsel).. and by the accused that they were keeping her out of actual prostitution until clear evidence arrived that she was actually over eighteen, if you regard that as a reasonable possibility, you must find him not guilty.”
I would not uphold Ground 5.
Grounds 6, 7, 8 and 9 (Conviction)
The grounds are:
“6. That the learned Trial Judge erred in refusing to allow cross-examination of the complainant in relation to the complainant’s prior sexual history as given in evidence on the voir dire by Mark Boumansour and Sonia Rahme.
7. That the learned trial judge erred in not allowing evidence of the complainant’s prior sexual history as given in evidence on the voir dire by Mark Boumansour and Sonia Rahme.
8. That the learned Trial Judge erred in refusing to allow cross-examination of the complainant in relation to whether, during the period 4 January 2001 and 8 April 2001 she worked as a prostitute at the brothel known as “The Black Garter”.
9. That the learned Trial Judge erred in refusing to allow evidence from Noelle Bennett in relation to whether the complainant, during the period 4 January 2001 and 8 April 2001, worked as a prostitute at the brothel known as “The Black Garter”.”
At the conclusion of the complainant’s evidence-in-chief an application was made by counsel then appearing for the appellant for leave to cross-examine the complainant, and ultimately to lead evidence in his own case, about the complainant’s previous sexual history. A voir dire hearing was conducted in order to determine whether either or both of those proposed courses of action should be permitted. Three statements were tendered as part of the evidence on the voir dire: one from Mr. Mark Boumansour; a second from Miss Sonia Rahme, the appellant’s sister; and the third from Miss Noelle Benett, a former prostitute working at the Black Garter brothel. Each of those three persons gave oral evidence on the voir dire.
Leave of the Court was required by reason of the provisions of section 105 of the Criminal Procedure Act 1986 (NSW). That section provided, relevantly:
“Section 105 of the Criminal Procedure Act 1986 sets out rules governing the admissibility of evidence of sexual experience of the complainant. Relevantly, it is as follows:
(1)This section applies to prescribed sexual offence proceedings.
(2)Evidence relating to the sexual reputation of the complainant is inadmissible.
(3)Evidence that discloses or implies:
(a)that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b)has or may have taken part or not taken part in any sexual activity, is inadmissible
(4)Subsection (3) does not apply:
(a)if the evidence:
(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed.
(b)if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, ……….
(f)if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked ………………… and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked:
(a)to give evidence that is inadmissible under subsection (2) or (3), or
(b)by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6)If the court is satisfied:
(a)that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i)had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii)had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b)the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7)On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8)If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.
(9)In this section:
Accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence.
Complainant, in relation to any proceedings, means the person, or any of the persons, on whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed.
Prescribed sexual offence proceedings means proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other……”
Mr. Boumansour’s evidence, put simply, was to the effect that he had become acquainted with the complainant through the medium of an internet chat room. The complainant had allegedly posted a message in the chat room to the effect that she was willing to provide sex in exchange for money; but that she required that any man taking up the offer had to be located in Sydney. The complainant said that she was wanting to make money out of prostitution in order to visit her boyfriend in the United States. Mr. Boumansour subsequently introduced the complainant to the brothel conducted by the appellant and other members of his family.
According to Mr. Boumansour, he asked the complainant, during the initial discussions which he said that he had with her about her internet proposal, how long she had been working, i.e. working as a prostitute. The complainant allegedly replied that she “had only done it a few times”. The learned trial Judge refused to allow this evidence to be led, or to be put to the complainant in cross-examination.
The evidence of Miss Bennett was to the effect that she had worked at the Black Garter brothel from about 1998 to about August 1999; and that from August 1999 until April 2002 she had worked at the Delarose brothel. She said that while working at the latter brothel she had met the complainant. Her evidence was that in all the time during which she worked at the Delarose, she never saw the complainant working there. It was proposed to lead from her evidence to the effect that there had been an occasion when she had finished her shift at the Delarose and was walking on Princes Highway. She allegedly “bumped into” the complainant who was coming out of the street leading to the Black Garter brothel. According to Miss Bennett, the complainant told her that she had been working at the Black Garter and that she needed the money so that she could go and see her boyfriend in the Unites States. The learned trial Judge excluded evidence of this particular meeting.
Miss Sonia Rahme gave evidence that in or about January or February 2001 the complainant had come to stay at the Rahme family home at 12 Walsh Street, Croydon Park. Miss Rahme herself was then living at that address. According to Miss Rahme, the complainant slept in her, Miss Rahme’s, bed-room on the first night of the complainant’s stay. According to Miss Rahme, the two of them had a social chat over some pizza and “began to talk about …(the complainant’s) … background and the reasons behind her coming to Sydney”. The learned trial Judge excluded the proposed evidence of this conversation “to the extent that it may deal with alleged prostitution in Newcastle”.
It is convenient to consider first that part of the rejected evidence which goes to the proposition that the complainant, prior to coming to Sydney on 4 January 2001, had had prior experience as a prostitute in Newcastle.
It is true that the rejected evidence does not stipulate in terms of months and years quite when it was that the supposed prior experience is supposed to have occurred. Nonetheless, bearing in mind that the complainant was aged 15 years in January 2001, it is unlikely to have been, in the nature of things, any great time before January 2001 that she had whatever prior experience was to be suggested to her in cross-examination, or proved against her by the affirmative evidence of the particular witnesses upon whom the defence relied in that connection.
As to the necessary connection required in terms of section 105(4)(a)(ii), it seems to me that there was a clearly discernible connected set of circumstances of the kind contemplated by the statute. It can be expressed as follows:
[1]The complainant was besotted by a young American who was then located in the United States.
[2]She was determined to get to him in the United States.
[3]For that purpose she needed to earn quickly a lot of money.
[4]She was alive to the potential of earning a lot of money by prostituting herself.
[5]She was alive to the fact that her prospects of prostituting herself for quick financial reward were better in Sydney than in, for example, Newcastle.
[6]That she conceives, thereupon, the idea of actively pursuing such an opportunity in Sydney.
[7]That she did not do so as, so to speak, an innocent abroad; but she did so, rather, as somebody who knew very well who was who and what was what in the dark world of prostitution; and that she had that knowledge by reason of her own personal antecedent experience.
That connected set of circumstances, if accepted by the jury, did not go only to the credit in a narrow and pedantic sense of the complainant herself. It went to the very heart of the facts in issue at the trial.
It is, of course, true that to have permitted the opening up of the complainant’s antecedent experience, if any, in Newcastle would have caused her distress, humiliation and embarrassment. It is, however, my view that the potential probative value of the material which the defence wished to elicit was in fact very high. In cases of the present kind there is no way of avoiding distress, humiliation and embarrassment to the complainant who has to admit, even in camera as was the case in the present trial, to a past course of sexual behaviour which intelligent, reasonable and fair-minded members of the public might consider to have been licentious and discreditable in the highest degree. If, in the circumstances of the particular case, a choice has to be made between that degree of discomforture of the complainant and the potential conviction of an innocent accused, then there can be, surely, no doubting t all of where the preponderant balance should lie.
In my opinion, the whole of the rejected material touching upon the alleged prior sexual experience of the complainant in Newcastle was admissible under section 105(4).
It was, in my opinion, permissible as well to cross-examine the complainant upon those allegations.
It would not be fair, in my opinion, to suggest that the complainant had put herself forward, or been put forward by the Crown, as a virgin who had no prior sexual experience at all. What is, in my opinion, incontrovertible is that she put herself forward, and was put forward by the Crown, as a 15 year old runaway from home; who had been spotted by the appellant at a time when she was peculiarly vulnerable to an advance from somebody presenting as, so to speak, a welcome port in a storm; who had accepted innocently the initial overtures of the appellant; who had thereafter been skilfully seduced by him into a sexual “relationship”; who had then been corrupted by him by her introduction a regime of drug abuse; and who had thereafter been, in effect, strong-armed by him into working as a prostitute in a brothel conducted by him and members of his family. I think that it is clear from the evidence that the complainant put herself forward, and was put forward by the Crown, as an emotionally vulnerable young girl who was horrified and repelled by the proposal that she should become a prostitute at the appellant’s brothel, but who felt that she had no practical alternative to swallowing her feelings of revulsion and going along with his proposal.
In those circumstances, in my opinion, it would have been permissible within the ambit of section 105(6) to have cross-examined the complainant about her alleged prior experience as a prostitute in Newcastle.
As to the Black Garter material, I am of the opinion that his Honour made, with respect, a fundamental error in his approach to the assessment of the probative value of that evidence. It is true that section 105(4) required his Honour to form a view about the probative value of the adumbrated evidence. That did not mean, however, that his Honour was simply to put himself in the shoes of the jury and to form for himself a view, definitive of the exercise of his discretion, as to what he thought was the probative value of the evidence. It seems to me that a fair reading of section 105(4) entails that the assessment which has to be made is of the probative value of the adumbrated evidence in the event that it were to be accepted by the jury.
It is undoubtedly true that Miss Bennett might have made upon the jury as unfavourable an impression as she made upon by his Honour. It is, however, equally open to be reasonably inferred that the jury might have accepted what she said. His Honour expressed, after all, very decided views about the unreliability of various of the counts in the indictment; and yet the jury, as correctly instructed by his Honour, preferred the contrary view, as was their right and duty as the ultimate tribunal of fact. There is no reason that I can see to think that the jury, had the jury been given the opportunity of assessing for itself Miss Bennett’s evidence, might have accepted it notwithstanding that his Honour was not at all disposed to tht view.
Had the jury heard and accepted Miss Bennett’s evidence, then it would have been open to the jury, in my opinion, to have drawn either of two rational inferences. One was that the complainant did not work as a prostitute at the Delarose for the reason that she had no need to do so, being already employed at the Black Garter brothel. The other was that the complainant was so anxious to acquire quickly the funds necessary to go to her boyfriend in the United States that she was prepared to work not at one brothel but at two. The former inference would have undermined the Crown case. The latter inference would have strengthened it. The choice between those two rational possibilities was, in my opinion, a matter proper to be left to the consideration of the jury.
In my opinion, therefore, it would have been proper to have left for the consideration of the jury all of the rejected material. Given the way in which the issues for trial were formulated at the trial; and given, also, the way in which the complainant appears to have presented herself and to have been presented by the Crown, judging that matter as best one can from the bare written word of the transcript, I think that the rejected material was admissible, both under section 105(4)(a) and for the purposes of section 105(6).
I would uphold this collected group of grounds of appeal. That entails, in my opinion, that there was a significant miscarriage of justice at the appellant’s trial; and that there should be a new trial upon Counts 1, 3, 4 and 5 of the indictment.
Ground 10 (Conviction)
The ground is:
“that the learned Trial Judge erred in allowing the re-examination of the complainant in relation to the reason she ran away from home.”
In my opinion the short answer to this ground is to be found in the following interchanges which are recorded at pages 307 and 308 of the transcript for 11 March 2003, and in the immediate aftermath of a question asked by the learned Crown Prosecutor in re-examination of the complainant as to why she had run away from home “in the first place”:
“CROWN PROSECUTOR: I am not happy with your Honour’s ruling, if your Honour would hear me. The witness was questioned, in fact was put to her that the reason she left her home to come to Sydney was to come to Sydney to work as a prostitute to earn enough money to go to the United States to meet up with her mate. On that basis I will be seeking to ask her the question, what was the reason she left home. Because the jury is left with only that idea in the evidence.
HIS HONOUR: Mr. Brady, that seems to have some logic to it. What do you expect the evidence will be? In general terms that there were family problems?
CROWN PROSECUTOR: More specific than that, she had a younger brother by five years who had HADD, he was getting all the attention, she felt unloved, she felt she wasn’t wanted any more. That was what she said in cross-examination.
HIS HONOUR: You could have led that in chief.
CROWN PROSECUTOR: I could have, but I chose not to because I didn’t think it was relevant.
HIS HONOUR: Were you not aware of the general thrust?
CROWN PROSECUTOR: No, not then. The only time I had become aware by Mark Boumansour was at the close of the evidence in chief, when I was handed the proof at the same time your Honour was.
HIS HONOUR: I think that’s right, yes. What do you say, Mr. Brady?
BRADY: My friend’s argument has got some merit. I say the questions were directed at why Sydney?
HIS HONOUR: You started out asking general questions then you confined yourself about general background.
BRADY: That’s right, without the general issue, basically why Sydney, then in order to make some money. I suppose I am in your Honour’s hands.
HIS HONOUR: It struck me that there having been certain material on the second voir dire of a kind provided to the parents, in particular her father, that you would have exercised your discretion as counsel to restrain yourself, and you deliberately took the position that you did.
BRADY: I did, but I understand what my friend is saying, I suppose the jury can infer from that --
HIS HONOUR: I am inclined to allow it, providing he leads it.
BRADY: If the answer is what my friend indicates, I don’t know that I would have much to say about it.”
Ground 11 (Conviction)
The ground is:
“The Crown failed to discharge its obligation to provide all relevant statements of witnesses to the accused, leading to a prejudice to the accused.”
I gather from the written submissions of the Crown that the statement referred to in Ground 11 is a statement dated 30 January 2001 made by the complainant to a Constable Sheather; and that the existence of the statement emerged, non in the appellant’s trial, but in a subsequent trial of the appellant’s brother and father.
I have not been able to find in the appeal papers a copy of the statement. Ground 11 received no particular attention at the hearing of the appeal.
In those circumstances I am not persuaded that the ground has been made good.
Grounds 12, 13, 14 and 15 (Sentence)
The grounds are:
“12. That the learned Trial Judge erred in admitting into evidence the Victim Impact Statement.
13. That the learned Trial Judge erred in failing to take into account the totality of the sentences.
14. That the learned Trial Judge placed too little weight on the appellant’s subjective circumstances.
15. That the total sentence is manifestly excessive.”
Having regard to the conclusions to which I have come on the conviction appeals, I do not think that it would be appropriate to make any particular examination of these grounds.
Conclusions and Orders
I am of the opinion that the Court should make the following orders:
[1]That the appellant’s conviction upon Count 7 of the indictment and the sentence passed pursuant to such conviction be quashed; and that in lieu there be entered judgment of acquittal on that count.
[2]That the appeals against the appellant’s convictions on Counts 1, 3, 4 and 5 of the indictment be allowed; that those convictions be quashed and the sentences passed pursuant respectively to them be set aside; and that there be an order for a new trial of the appellant upon those counts
JAMES J: I have had the advantage of reading in draft the judgment of Sully J. I agree with much of what his Honour has written but there are parts of his Honour’s judgment with which I am, respectfully, unable to agree. His Honour’s judgment relieves me of the need to set out in this judgment many matters which are fully and appropriately dealt with in his Honour’s judgment and I can turn immediately to the grounds of appeal against conviction.
1.That the verdicts of guilty were unreasonable and unsupportable by the evidence.
2.That the verdict of guilty in relation to count 3 was inconsistent with a verdict of not guilty on count 2.
3.That the verdict of guilty in relation to count 7 was inconsistent with a verdict of not guilty on count 6.
4. That the verdicts of guilty were inconsistent.
These four grounds of appeal are interrelated and a number of the submissions which were made on the hearing of the appeal related to both the first ground of appeal and to one or more of the second, third and fourth grounds of appeal.
The various counts in the indictment are summarised in Sully J’s judgment. I will simply note that count 1 in the indictment was a charge of sexual intercourse with a child between the ages of ten and sixteen, count 2 in the indictment was a charge of supplying a prohibited drug (cocaine), count 3 in the indictment was a charge under s 91D of the Crimes Act of causing a child to participate in an act of child prostitution, count 4 in the indictment was a charge under s 91E of the Crimes Act of receiving money knowing that it was derived from an act of child prostitution, count 5 in the indictment was a charge under s 91F of the Crimes Act of being a person capable of exercising lawful control over premises in which a child participated in an act of child prostitution, count 6 in the indictment was a charge of assault occasioning actual bodily harm and count 7 was a charge under s 90A of the Crimes Act (since repealed) of detaining a person with intent to hold her for advantage.
It was submitted by counsel for the appellant that the verdicts of guilty on all of the counts on which the appellant was found guilty, that is counts 1, 3, 4, 5 and 7, were unreasonable and could not be supported having regard to the evidence. Alternatively, it was submitted that the verdicts of guilty on all of counts 1, 3 and 7 were unreasonable and unsupportable. In accordance with the second ground of appeal, it was submitted that the verdict of guilty on count 3 was inconsistent with the verdict of not guilty on count 2 and, in accordance with the third ground of appeal, that the verdict of guilty on count 7 was inconsistent with the verdict of not guilty on count 6.
As Sully J states in his Honour’s judgment, counsel for the appellant in pars 17-21 of written submissions identified five topics, on which it was submitted that the complainant’s evidence was so demonstrably unreliable that all the verdicts of guilty or, alternatively, the verdicts of guilty on counts 1, 3 and 7 should be held to be unreasonable and unsupportable. On each of these topics the passages in counsel for the appellant’s written submissions setting out the complainant’s version, the evidence said to contradict the complainant’s version and the conclusions which it was submitted should be drawn are quoted verbatim in Sully J’s judgment and I will not repeat them in this judgment. I will proceed to deal with each of these five topics in turn.
1. The complainant’s first attendance at the Delarose Brothel
I agree with Sully J’s conclusion that the overwhelming inference from the evidence is that the complainant was physically present at the Delarose brothel (“the brothel”) at the time of the telephone call at about midnight (11.54 pm) on 4 January 2001.
I agree with Sully J’s further conclusion, which is drawn from his Honour’s first conclusion, that the complainant’s evidence that on 4 January 2001 she had a chance meeting with the appellant near Strathfield Railway Station, that she was then taken to the appellant’s family home at Croydon and that she did not first go to the brothel until some weeks later cannot be true.
Sully J would appear to accept conclusion (xx) argued for by counsel for the appellant, namely that the complainant went directly to the brothel from Strathfield Railway Station on 4 January 2001. However, his Honour does not accept that the further conclusions (xxi) and (xxii) argued for by counsel for the appellant should be drawn. His Honour gives two reasons for not accepting that these further conclusions should be drawn, namely:-
(i) It was open to the jury to reject the evidence of the witnesses Mark Boumansour, Leticia Barton, Kim McLeod and Sonia Rahme, who gave evidence in the defence case at the trial.
(ii) The jury could have thought that on 4 January 2001 the complainant had stopped off at the brothel while en route to the appellant’s family home and that the complainant had attempted while at the brothel to telephone her parents.
Sully J remarks in his judgment that there was no evidence at the trial fixing in any precise way the time at which the complainant arrived in Sydney, the time at which she was collected by the appellant or the time at which she first arrived at the appellant’s family home.
As to (i) I agree with Sully J that it would have been open to the jury to reject the evidence of these witnesses, all of whom were associated with the appellant. However, as to (ii), I am, respectfully, unable to agree with Sully J.
It seems to me that it would have been sheer speculation on the jury’s part to find that the telephone call was or might have been made by the complainant at the brothel while she was en route to the appellant’s family home. Such a finding would not have been supported by any of the evidence of either the complainant or the appellant and would not appear to have been the subject of any submission by the Crown Prosecutor.
It is true that the times at which, on the complainant’s version, the complainant arrived in Sydney, was collected by the appellant and arrived at the appellant’s family home were not precisely fixed by the evidence given in the trial. However, such evidence as there was, in my opinion, tended to militate against any finding that the complainant and the appellant had stopped off at the brothel at about midnight on 4 January 2001 on their way to the appellant’s family home.
The complainant’s parents were vague about the time at which, having returned home from shopping, they discovered that the complainant had left home, leaving a note. The complaint’s father thought it was about 1 o’clock in the afternoon. The complainant’s mother thought it was between 10.30 and 11 o’clock in the morning.
On such evidence as was given by the complainant it is unlikely that she could have stopped off at the brothel at about midnight and then have arrived at the appellant’s family home as late as some time after midnight. The complainant gave evidence that, after leaving home, she travelled from where she lived near Newcastle to Stockton and from Stockton to Newcastle, that she “hung around” Newcastle and then travelled by train from Newcastle to Strathfield. It is unlikely that the train would have arrived late at night. According to the complainant’s evidence she wandered around Strathfield Station only “for a couple of minutes” and then sat outside the station “not long, probably about five minutes” before the appellant came along. It would not have taken long for the complainant to be driven from just outside Strathfield Railway Station to the appellant’s home in Croydon. The complainant gave evidence that at the appellant’s home she saw the appellant’s mother and a little girl, who the complainant said was about three years old and who was apparently awake. After arriving at the home the complainant ate some Lebanese food.
Sonia Rahme gave evidence that the complainant had arrived at the appellant’s family home some time in the afternoon of 4 January 2001.
Apart from the telephone call on 4 January 2001, the evidence discloses that further calls were made from the brothel to the complainant’s parents’ telephone number on 7 January and 8 January. In cross-examination the complainant said that it was “not possible” that she had made any of the calls on 4 January, 7 January and 8 January, because “I can definitely say I wasn’t there (at the brothel) during the period you have just named (the period covered by the calls)”.
In my opinion, findings, which I consider the jury should have made, that the complainant was physically present at the brothel at the time of the telephone call at about midnight on 4 January 2001 and that the complainant was also physically present at the brothel at the times of the telephone calls on 7 January and 8 January ought to have been regarded by the jury as throwing serious doubt on the general accuracy of the complainant’s evidence.
2. The complainant’s stay at the Rahme home
The complainant’s evidence about how long she had stayed at the appellant’s home varied as between the evidence she gave in examination in chief and the evidence she gave in cross-examination.
In her evidence in chief the complainant said that, after being picked up by the appellant she had lived at the appellant’s home “a couple of weeks”, during which time she left the house only a couple of times to go to a dance class with Sonia Rahme and during which time she first had sexual intercourse with the appellant, and that she then, whilst still living at the appellant’s home, went to the brothel with the appellant on a number of occasions for “two weeks, maybe three”. She then started to work as a prostitute at the brothel, living in at the brothel.
In cross-examination the complainant agreed that what she had said in the statement made by her to police in September 2001 was correct and that she had been living at the appellant’s home for about a month before she had sexual intercourse with the appellant and that subsequently to having sexual intercourse with the appellant she had gone to the brothel with the appellant for more than a month and that it was about mid March that she had commenced working as a prostitute at the brothel. Accordingly, in her statement and in her evidence in cross-examination, which the complainant in cross-examination said was the correct version, the complainant said that she had lived at the appellant’s home for more than two months.
The complainant agreed in her evidence that on a “run around” on 10 October 2001 of places referred to in the statement she had made to police in September 2001, she had had difficulty in picking out the appellant’s house No.12 Walsh Street. The complainant gave evidence in cross-examination that, in looking for the appellant’s house on the “run around”, she directed police up a wrong street, she then said to police that both of two streets looked familiar, she was driven up Walsh Street a first time without picking the appellant’s house, she then directed police up another street (Fountain Street) and picked a house in that street as being similar to the appellant’s house, she did ultimately point out the appellant’s house as looking familiar but also said that the house next door to the appellant’s house also looked familiar.
There were some features of the appellant’s house which should have assisted the complainant in remembering the house. The number of the house, No. 12, appeared on the verandah of the house and the complainant agreed that the house was opposite a “particularly rememberable” corner.
On this appeal it was submitted by counsel for the appellant that it was improbable that the complainant had lived in the house for as long as two months or more between January and March 2001, if she had had such difficulty in identifying the house on the run around conducted in October 2001. The difficulty the complainant had had in identifying the appellant’s house was contrasted with the ease with which she identified the doctor’s surgery to which she had been only once.
The complainant gave reasons for having had difficulty in identifying the house, including that during the first month she had rarely gone outside the house and that when she returned to the house during the period in which she was accompanying the appellant to the brothel, it was usually dark and that there had been some changes in the house by the time of the run around (the gates were closed, the house had changed slightly and the garden was a lot tidier).
On this topic Sully J is of the opinion that “the obvious deficiencies” in the complainant’s recollection are explicable on the basis of her youth, the circumstances of her going to and from the house and the effect of drug abuse on her powers of recollection.
In my opinion, even allowing for the reasons for her poor recollection of the appearance of the appellant’s house given by the complainant herself and the explanation of the deficiencies in her evidence suggested by Sully J, I consider that the difficulty the complainant had in identifying in October 2001 the house in which she said she had lived for more than two months earlier that year casts some doubt on her assertion that she had lived at the house for as long as two months and also on her general version of the sequence of events, that is that before commencing to work as a prostitute she had lived at the house for a period during which she seldom left the house and that she had then lived at the house for a further period during which she made frequent trips to the brothel and then back to the house.
3. The Complainant commencing to work as a prostitute
I have already, in dealing with the second topic, referred to the different evidence given by the complainant in her evidence in chief and in her evidence in cross-examination about how long she initially stayed at the appellant’s home and for how long she made visits to the brothel while still living at the house, and when it was that she began working at the brothel as a prostitute. According to the evidence given by the complainant in evidence in chief, she began working as a prostitute at the brothel about four or five weeks after 4 January 2001. However, according to the evidence given by the complainant in cross-examination, which was in accordance with the statement she had made to police in September 2001 and which she said in cross-examination was probably more accurate than the evidence she had given in chief, the complainant started working in the brothel in about mid March.
The complainant gave evidence in her evidence in chief that at some time after she had started working as a prostitute at the brothel she had had a particularly busy Saturday night at the brothel and that afterwards she felt “really sick”. On the following day she told the appellant’s father how she felt. The appellant’s father took her to a doctor, who examined her and wrote a prescription. The doctor was paid, using the appellant’s father’s Medicare card. The appellant’s father told the complainant that, if anyone asked who she was, she was to say that she was his daughter. The complainant had the prescription which the doctor had written filled at a chemist.
The prescription written by the doctor was admitted into evidence at the trial and became exhibit “C”. The complainant’s name is written on the prescription as being the name of the patient and the address written on the prescription as being the address of the patient is the address of the brothel. The date written on the prescription as being its date is 5 February 2001. There was also admitted into evidence a Medicare form in the names of members of the Rahme family, indicating that a medical service was performed on 5 February 2001.
The complainant’s evidence which I have summarised, including her evidence about the conduct of the appellant’s father, and the evidence of the prescription and the Medicare form, which corroborate the complainant’s evidence, are, in my opinion, quite strong evidence that as at 5 February 2001 the complainant was working as a prostitute at the brothel and, accordingly, quite strong evidence of some elements of some of the offences charged. However, evidence that the complainant was already working as a prostitute at the brothel in early February 2001 is inconsistent, and seriously inconsistent, with her evidence that she had started working as a prostitute at the brothel in about mid March 2001. The complainant herself conceded in cross-examination that “my timing must be very, very out” and that “it’s a very big mistake”.
Sully J accepts that the complainant was mistaken in certain aspects of her dating of relevant events but considers that it does not necessarily follow that the complainant was otherwise untruthful.
In my opinion, the error in the complainant’s evidence about when it was that she started working as a prostitute casts some doubt on the complainant’s general credibility and also, as with the second topic, casts some doubt on her general version of the sequence of events.
4. The complainant being detained against her will
Evidence given by the complainant about an alleged assault on her by the appellant is accurately summarised in par 20(ii) of counsel for the appellant’s written submissions.
In evidence in chief the complainant said that, when she was attempting to leave the brothel, the appellant appeared. The appellant had a gun. She had a short conversation with the appellant in which she told the appellant that she was leaving. The complainant kept walking towards the exit door. The appellant “hit me with something on the back of my head”. The complainant felt “woosy”. The appellant grabbed hold of her, physically pulled her back into the main part of the brothel and “shoved her” into the girls room in the brothel.
In cross-examination the complainant agreed that this occasion on which she was assaulted was the first time she had really made an attempt to escape from the brothel and the first time that physical force had been used to prevent her leaving.
In cross-examination the complainant agreed that in the statement she had made to police she had said, in describing this incident, that the appellant had punched her in the stomach, an allegation she had not made in her evidence in chief. The complainant said in cross-examination that what she had said in her statement had happened, would have happened.
The alleged assault of the complainant by the appellant on this occasion was the assault charged in count 6 of the indictment on which the appellant was found not guilty. I agree with Sully J that the jury’s verdict of not guilty on count 6, indicating that the jury had at least a reasonable doubt on count 6, ought to have led to the jury having a reasonable doubt whether the appellant was guilty on count 7.
Notwithstanding the explanations advanced by the complainant, I consider that other conduct of the complainant in returning to the brothel after she had the meeting with her parents at Rockdale Railway Station and in returning to the brothel after she had left it the first time reinforce the conclusion that the jury ought to have had a reasonable doubt about whether the complainant was being detained at the brothel against her will.
As regards the Black Garter evidence and s 105(4)(a), it was submitted that evidence that the complainant was working (by inference voluntarily) at another brothel was relevant inter alia to whether she was being forced to participate in acts of prostitution at the Delarose brothel and whether she was being detained against her will at the Delarose brothel and that the conditions in sub-par (i) and sub-par (ii) and the tailpiece to s 105(4) were satisfied.
As regards the tailpiece to s 105(4), it was submitted that the trial judge had erred in taking into account, in his assessment of the probative value of the Black Garter evidence, his own views about whether Noelle Bennett’s evidence should be accepted. It was submitted that the trial judge should have assessed the probative value of Noelle Bennett’s evidence, on the assumption that it was accepted by the jury and that to do otherwise was to usurp the jury’s function. It was submitted that, in any event, there would be nothing odd or unreal in two prostitutes who had met by chance near their places of work having a conversation in which one of them said where she had just been working.
It was submitted by the Crown that the finding by the trial judge with respect to the Newcastle evidence, that the evidence was not evidence of sexual experience or sexual activity taken part in by the complainant “at or about” the time of the commission of the alleged offences, the finding by the trial judge with respect to the Newcastle evidence that he was not satisfied that it was implied in the case for the prosecution that the complainant had a lack of sexual experience as a prostitute and the finding by the trial judge that the Black Garter evidence had little probative value were all findings of fact or exercises of discretion by the trial judge with which the Court of Criminal Appeal could not interfere.
I accept that in determining these grounds of appeal it is necessary to keep in mind the limited nature of an appeal to the Court of Criminal Appeal and the limited powers of the Court of Criminal Appeal to interfere with a finding of fact made by a trial judge or an exercise of discretion by a trial judge.
In R v O’Donoghue (1988) 34 A Crim R 397 Hunt J (as his Honour then was), with whose judgment Carruthers and Wood JJ concurred, said at p 401:-
“It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below…..Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge’s findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice….”.
This passage in Hunt J’s judgment in O’Donoghue has frequently been referred to with approval. See for example R v Khouzame [2000] NSWCCA 505 at par 38 per Greg James J, Priestley JA and Kirby J concurring; See also R v Knight (2001) 120 A Crim R 381 at 397 (84) per Greg James J, Heydon JA and Studdert J concurring; R v Park [2003] NSWCCA 142 per Hidden J at par 37, James J concurring.
The principles on which an appellate court may review an exercise of a judicial discretion as stated in House v The King (1936) 55 CLR 499 are well known. At p 505-506 Dixon, Evatt and McTiernan JJ said:-
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so”.
With respect to the Newcastle evidence and s 105(4)(a), I have concluded that the trial judge’s finding, that the evidence was not evidence of sexual experience or sexual activity by the complainant “at or about” the time of the commission of the alleged offences is not a finding in relation to which this Court, consistently with the principles stated in O’Donoghue, can properly intervene. The times at which the complainant, according to the evidence of Mark Boumansour and Sonia Rahme, took part in acts of prostitution while she was living in the Newcastle area were not fixed by the evidence and were, of course, prior to the complainant travelling to Sydney and prior to the commencement of the period within which the Crown alleged that the offences had been committed. In my opinion, it was open to the trial judge to find that the Newcastle evidence was not evidence of sexual activity or sexual experience either at or about the time of the commission of the alleged offences. I would reject ground of appeal 7.
I turn to the Newcastle evidence and s 105(6) of the Criminal Procedure Act.
I would agree with the trial judge that the views expressed by Heydon JA in par 70 of his Honour’s judgment in Tubou are, quite expressly, obiter dicta and I also agree with the trial judge that, if an implication would in fact be conveyed to the jury by evidence adduced by the Crown that the complainant has had sexual experience or has taken part in sexual activity or has not had sexual experience or has not taken part in sexual activity, then s 105(6)(a) can be satisfied, notwithstanding that the Crown Prosecutor tells the judge that he does not intend the evidence to convey such an implication.
Section 105(6) requires a court to determine whether it is “satisfied” of the matters set out in pars (a) and (b).
In Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 at 360 Dixon J said, with reference to whether the Federal Commission of Taxation should have been “satisfied” of a certain state of affairs:-
“His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review”.
This passage in Dixon J’s judgment in Avon Downs has subsequently been referred to with approval on many occasions where a decision by a primary decision maker as to whether he is “satisfied” has been challenged. See for example, Minister for Immigration v Wu (1996) 185 CLR 259 at 275 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It is apparent that the grounds on which a decision by a judge of first instance or some other primary decision maker as to whether he is “satisfied” of some matter can be reviewed are either the same as, or substantially similar to, the grounds on which an exercise of a discretion can be reviewed and I consider that they are the grounds on which on the present appeal the trial judge’s satisfaction, or rather lack of satisfaction, can be reviewed.
In my opinion, the trial judge, in deciding that he was not satisfied that it was implied in the case for the prosecution that the complainant lacked sexual experience as a prostitute and had not taken part in sexual activity as a prostitute and that all that was involved in the complainant’s evidence were allegations that she had been “beaten up” and compelled to engage in prostitution, should be regarded as having failed to take into consideration the complainant’s evidence quoted earlier in this judgment that, when the appellant demanded that she work as a prostitute, she repeatedly said that she could not do so and her further evidence suggesting that it was quite novel to her to take part in an act of prostitution. In my opinion, this evidence given by the complainant required a conclusion that the trial judge be satisfied that an implication within s 105(6)(a) was being conveyed.
I also consider that the trial judge should have been satisfied of par (b) of s 105(6). Accordingly, I would uphold ground of appeal 6,
The trial judge decided that the Black Garter evidence of Noelle Bennett was not admissible under s 105(4)(a), for the reason that under the tailpiece to s 105(4) the probative value of the evidence did not outweigh the distress, humiliation and embarrassment the complainant might suffer as a result of the admission of the evidence. This reason depended on his Honour’s findings that the Black Garter evidence of Noelle Bennett was “of little probative value” and that the distress, humiliation and embarrassment the complainant would suffer as a result of admitting the evidence would be manifest and substantial.
In finding that the evidence was of little probative value the trial judge took into account that he himself found the evidence of Noelle Bennett “less than convincing; indeed, considerably less than convincing”, that the conversation with the complainant which Noelle Bennett asserted that she had had appeared to the trial judge to be “odd” and “to lack much connection with reality” and that the evidence appeared to the trial judge to be inconsistent with evidence which had already been admitted in the trial, being the evidence of the prescription (exhibit “C”) and the circumstances in which the prescription had been written. As I have previously noted, counsel for the appellant submitted that his Honour had erred in taking these matters into account in assessing the probative value of the Black Garter evidence.
The expression “probative value” used in s 105 (or s 293) of the Criminal Procedure Act is not defined in the Criminal Procedure Act. However, the expression “probative value” is defined in the Evidence Act. Section 105 (or s 293) of the Criminal Procedure Act is concerned with the admissibility at trials of certain kinds of evidence and I consider that, in interpreting the expression “probative value” in s 105, it is legitimate to refer to the definition of that expression in the Evidence Act, which is the statute generally governing the admissibility of evidence at trials.
In Pt 1 of the dictionary at the end of the Evidence Act the expression “probative value” is defined as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
The language of the definition of “probative value” closely parallels the language of the definition of what evidence is relevant in s 55 of the Evidence Act, namely that “the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.
The definition of relevant evidence in s 55 includes, whereas the definition of “probative value” in the dictionary does not include, the words “if it were accepted”, giving rise to a possible argument that, while the relevance of a piece of evidence is to be determined on the assumption that the evidence is accepted, the probative value of a piece of evidence is to be determined without making this assumption. In Papakosmos v The Queen (1999) 196 CLR 297 McHugh expressed the view at 323 (86) that the assessment of the probative value of evidence necessarily involves considerations of the reliability of the evidence.
However, in my view, notwithstanding that the definition of “probative value” in the dictionary at the end of the Evidence Act does not include any express requirement that the probative value of the evidence is to be determined on the assumption that the evidence is accepted, the definition should be interpreted so as to contain such a requirement. The use of the word “could” in the definition of “probative value” lends some support to the view that a trial judge, in determining the probative value of a piece of evidence, is not to attempt to make a final determination of the extent to which the evidence does affect the assessment of the probability of the existence of a fact in issue.
In Adam v The Queen (2002) 207 CLR 96 Gaudron J said at 115 (59)(60):-
“The dictionary to the Act defines ‘probative value’ to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. That definition echoes the substance of s 55(1) of the Act which provides that ‘evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. It is to be noted that the dictionary definition differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted.
The omission from the dictionary definition of ‘probative value’ of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition…”.
At common law prior to the introduction of the Evidence Act, when it was necessary for a trial judge to determine the probative value of evidence, for example, in exercising the common law discretion to exclude evidence the prejudicial effect of which exceeded its probative value, it was settled that the probative value of the evidence was to be determined on the assumption that the evidence would be accepted and that the trial judge was not to attempt to determine whether the evidence should be accepted. In R v Carusi (1997) 92 A Crim R 52 at 65-66 Hunt CJ at CL said:-
“It was for the jury, and not for the trial judge, to determine the factual issues at the trial… and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where taken at its highest, its probative value is outweighed by its prejudicial effect…”.
On the hearing of this appeal counsel for the Crown accepted that what Hunt CJ at CL said in Carusi is applicable to the expression “probative value” in the tailpiece to S 105(4).
I conclude that, as was submitted by counsel for the appellant, the trial judge erred in taking into account in assessing the probative value of the Black Garter evidence of Noelle Bennett that he himself found the evidence unconvincing, odd and lacking much connection with reality and that he himself considered that the evidence was inconsistent with other evidence which had been admitted. Accordingly, the trial judge’s exercise of his function of determining the probative value of the evidence, whether that function is classified as fact finding or an exercise of discretion, miscarried.
In my opinion, the Black Garter evidence, if accepted by the jury, would have had considerable probative value. For example, evidence that the complainant was working as a prostitute, by inference voluntarily, at another brothel would cast doubt on whether she had been coerced into working as a prostitute at the Delarose brothel and would cast doubt on whether she was being detained against her will at the Delarose brothel.
The trial judge considered that the Black Garter evidence, if admitted, would cause the complainant substantial distress, humiliation or embarrassment. I do not doubt that the Black Garter evidence, if admitted, would have caused the complainant distress, humiliation and embarrassment. However, it is necessary, in assessing the extent of the distress, humiliation and embarrassment the complainant would have suffered if the Black Garter evidence was admitted, to have regard to the other evidence which had already been admitted in the trial. That other evidence showed among other things that the complainant had worked as a prostitute at a brothel (the Delarose brothel), had lived in the brothel and had become a drug addict. Although evidence that a complainant has worked in a brothel would ordinarily be likely to cause a complainant very serious distress, humiliation and embarrassment, the additional distress, humiliation and embarrassment the present complainant might have suffered if the Black Garter evidence had been admitted, over and above the distress, humiliation and embarrassment she had suffered from the evidence already admitted, would have been likely to have been less substantial than the trial judge considered.
In my opinion, the Black Garter evidence satisfied the condition in sub-par (i) of s 105(4)(a), as the trial judge in fact held; the evidence satisfied the condition in sub-par (ii) as forming part of a connected set of circumstances in which the alleged offences were committed, adopting the liberal interpretation of this condition stated in R v Morgan; and the probative value of the evidence outweighed any additional distress, humiliation or embarrassment that the complainant might have suffered as a result of its admission.
I conclude that ground of appeal 9 should be upheld and that ground of appeal 8 should also be upheld.
10.That the learned trial judge erred in allowing the re-examination of the complainant in relation to the reason she ran away from home.
11.That the Crown failed to discharge its obligations to provide all relevant statements of witnesses to the accused, leading to prejudice to the accused.
I agree with Sully J that there is no substance in either of these grounds of appeal.
There is no need for me to deal with the remaining grounds of appeal which relate only to the sentences passed on the appellant.
CONCLUSION
I have held that one or more of grounds of appeal 1, 2, 3 and 4 should be upheld in relation to the convictions of the appellant on counts 1, 3 and 7 and that, accordingly, the convictions of the appellant on these counts should be quashed absolutely.
I have held that grounds of appeal 1, 2, 3 and 4 should be rejected in relation to the convictions of the appellant on counts 4 and 5. However, I have held that some of grounds of appeal 6, 7, 8 and 9 should be upheld and I consider that, these grounds of appeal having been upheld, the convictions of the appellant on counts 4 and 5 must be set aside. However, I consider that there should be a new trial of the appellant on counts 4 and 5.
In my opinion, the Court should make the following orders:-
1. Appeals against the appellant’s convictions on counts 1, 3 and 7 allowed, the convictions of the appellant on those counts set aside and quashed and verdicts of acquittal entered.
2. Appeals against the appellant’s convictions on counts 4 and 5 allowed, the convictions on those counts set aside but there be a new trial of the appellant on counts 4 and 5.
HULME J: In these proceedings I have had the advantage of reading the reasons for judgment of Sully and James JJ. I agree with the orders proposed by James J, and subject to one matter, with his Honour’s reasons.
The reservation I have concerns the evidence of the witness Noelle Bennett, conveniently referred to as the “Black Garter” evidence. Influenced by his own assessment that Ms Bennett’s evidence on the topic was “considerably less than convincing” and having little or no probative value and that, if it were given, the “distress, humiliation and embarrassment” which would ensue was “manifest” and would be “substantial”, Judge G D Woods QC excluded the evidence. James J and Sully J regard his Honour as having erred in taking into account his own assessment of the credibility of Ms Bennett, taking the view that the “probative value of the evidence” which his Honour was required by s105(4) of the Criminal Procedure Act 1986 to assess, had to be assessed upon the basis that the evidence was accepted.
That approach accords with the pre-Evidence Act decision of R v Carusi (1997) 92 A Crim R 52 at 65-66 which the Crown ultimately accepted should be followed. It is contrary to the view of McHugh J in Papakosmos v R (1999) 196 CLR 297 at [86] who pointed out that the Act makes a distinction between relevance and probative value.
Section 55(1) of the Evidence Act provides that “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect …. the assessment of the probability of the existence of a fact in issue …”. The dictionary in the Act defines “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. In Adam v R (2002) 207 CLR 96 at [60], Gaudron J said:-
“The omission from the dictionary definition of “probative value” of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition.”
With respect to her Honour, I have difficulty in accepting the proposition in the second sentence just quoted. Questions of admissibility, to which an assessment of probative value generally goes, are made prior to most decisions as to whether evidence should be accepted. In the context of issues of admissibility, if there is an issue whether Jones was the person who robbed a shop, evidence from A and B that they saw him do so, and evidence from C and D that the robber was not Jones but Smith, can and, prior to any decision being made as to which, if any, of that evidence should be accepted does, rationally affect the probability of the fact in issue.
Furthermore, given the history and care that went into the drafting of the Evidence Act, I am unable to accept, consistently with general canons of construction, that the omission in the definition of “probative value” of any reference along the lines “if it were accepted” should be treated as a matter of no significance, when those words do appear in the exposition of relevance in s55. In this regard, i.e. the approach to the proper construction or interpretation of the Evidence Act, see R v PLV (2001) NSWCCA 282.
By virtue of the words used in the definition, any consideration under the Evidence Act of the probative value of evidence requires an assessment of ”the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. Take for example the evidence of a witness of generally bad credibility who had said on a number of occasions that he did not see an event occur but who, at the time of trial, is disposed to give evidence to the effect that he did see the particular event. It does not seem to me that a judge, asked to exercise his discretion under s135 should be obliged to proceed on the basis that the proposed evidence would be accepted. Why could he not say that, given the earlier contrary assertions, the evidence could not, rationally affect the probability of the existence of any fact in issue?
The need to consider the “extent” in the context of “rationally affect” to my mind argues for an assessment of the credibility of the author and the likelihood of the evidence being accepted. That is not to deny that operation must also be given to the word “could” in the expression “could rationally affect”. When a judge is required to consider the probative value of evidence, the test is not simply whether the judge believes it.
Many of the occasions contemplated by the Evidence Act as to requiring an assessment of probative value also point in the direction of requiring, or at least permitting, as assessment of the credibility or reliability of the evidence under consideration. These include comparison with “any prejudicial effect it (the evidence) may have on the defendant” – s101, “the danger (the evidence) might be unfairly prejudical … misleading or confusing, or cause or result in undue waste of time” – s135, and “the danger of unfair prejudice” – s137. It strikes me that a far more useful comparison with these matters can be made if a comprehensive assessment of the value of the evidence under consideration can be made, rather than an assessment circumscribed by a prohibition on considering the credibility or reliability of the author of the evidence.
In the preceding discussion, I have been paying attention to provisions of the Evidence Act 1995. The particular provisions relevant here, as has been said, are contained in s105(4) of the Criminal Procedure Act 1986. These substantially reproduce provisions introduced, as s409B, into the Crimes Act 1900 in 1981 and accordingly it cannot be simply assumed that “probative value” in s105 has the same meaning in both Acts. However, a consideration of both Acts indicates no reason to give the expression different meanings. Both statutory provisions operate in the same field and both employ the concept of a weighing of probative value against other considerations. In the case of s105 this is against “any distress, humiliation or embarrassment”. In these circumstances, the expression should be given the same meaning and operation in both the Evidence Act and in the Criminal Procedure Act.
Thus I take the view that Judge Woods did not err in taking into account his own assessment of the credibility of Ms Bennett and of the strength of her evidence.
However, this Court is holding that his Honour erred in refusing to admit what has been referred to as “the Newcastle evidence” and which independently of Ms Bennett suggested that the complainant had engaged in prostitution independently of the Appellant’s influence. The nature of that evidence and the fact it comes from a source independent of Ms Bennett means that any weighing of the probative value of Ms Bennett’s evidence should take account of it. In consequence of his decision not to admit “the Newcastle evidence”, his Honour obviously did not take the Newcastle evidence into account in this regard and accordingly his assessment of the probative value of Ms Bennett’s evidence and thus of whether that value outweighed any “distress, humiliation or embarrassment” the complainant would suffer was affected by error.
His Honour also, as I have said, assessed the “distress, humiliation or embarrassment the complainant might suffer as a result of” the admission of Ms Bennett’s evidence as “manifest” and would be “substantial”.
In that a major component of the complainant’s evidence was that she had been working as a prostitute in one brothel, to the extent to which Ms Bennett’s evidence merely suggested that the Plaintiff had worked in a second, the “distress, humiliation or embarrassment” could only have been incremental. However in that Ms Bennett’s evidence also suggested, albeit implicitly, that the working in a second brothel was voluntarily and a major aspect of the complainant’s evidence was that her working in a brothel was something she was forced to do, the evidence was calculated to make any “distress, humiliation or embarrassment” substantial and I am unable to detect error in his Honour’s finding to that effect.
Although Judge Woods J did not say so in terms, when regard is had to the totality of his remarks, it seems to me that he placed some weight on the impression Ms Bennett created. This Court has not seen her and although a reading of the Appeal Books makes me inclined to the view that the probative value of the evidence of Ms Bennett did outweigh any distress, humiliation or embarrassment the complainant might suffer from its admission, it does not seem to me that a decision to that effect can properly be made on only the printed word. However, in light of the other conclusions at which I have arrived, I do not need to make a decision on the question.
As I have said, I agree with the orders of James J.
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LAST UPDATED: 28/07/2004
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