R v RGP
[2006] VSCA 259
•30 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 260 of 2005
| THE QUEEN |
| v. |
| RGP |
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JUDGES: | CALLAWAY and REDLICH, JJ.A. and SMITH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 October 2006 | |
DATE OF ORDERS: | 30 October 2006 | |
DATE OF REASONS: | 30 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 259 | |
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Criminal law – Incest – Confession by applicant – Applicant giving evidence that confession was false – Evidence sought to be led that applicant made another false confession in not dissimilar circumstances three years before – Whether sufficiently relevant to be admissible – Step-children of applicant giving evidence against him – Whether a step-child is a child entitled to seek exemption from giving evidence – Crimes Act 1958, s.400.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.G. Priest, Q.C. with Mr G.M. Hughan | Paul Vale Criminal Law |
CALLAWAY, J.A.:
The applicant, who is now aged 42, was found guilty in the County Court on one count of incest. The complainant was his step-daughter. He was sentenced to three years’ imprisonment with a non-parole period of 18 months. On 8th September 2005 he sought leave to appeal against both conviction and sentence. A full statement of grounds, in relation to each application, was filed on 9th February 2006. Substituting “S” for the name of the complainant and “C” for the name of her brother, the grounds of appeal against conviction read:
“1.A miscarriage of justice resulted from the trial judge refusing permission to the applicant to lead evidence that he had previously made a false confession.
2. The trial miscarried as a result of the trial judge –
(a)holding that neither of the witnesses [S] nor [C] might be exempted from giving evidence pursuant to s.400 of the Crimes Act 1958;
(b)failing to make the witnesses [S] and [C] aware of their right to be exempted from giving evidence pursuant to s.400(6) of the Crimes Act 1958.”
(Transcript references omitted.)
The application for leave to appeal against sentence was abandoned.
On 30th October 2006 the Court granted leave to appeal against conviction, allowed the appeal, quashed the conviction and directed a new trial to be had. These are my reasons for joining in those orders.
The circumstances of the alleged offending and of the applicant, as I shall continue to call him for convenience, sufficiently appear, for present purposes, from the sentencing remarks. Addressing the applicant, the learned judge said:
“2.At the time the offence took place you were living with your wife, [W], and four step-children in a house at [a] naval base. Your eldest daughter from your first marriage was also living with you. The offence took place in November 2004. In a record of interview you said that you had been watching TV with [S] in the lounge room and she sat on your knee and kissed you good night and you had a cuddle. She retired to her bedroom and shortly afterwards you followed. You took hold of her pyjama bottoms and pulled them off along with her underwear. [S] was then naked from the waist down and you admitted to touching her in the vaginal area with your fingers and placing your fingers between the labia and rubbing in the region of the clitoris.
3.[W] gave evidence that when she and your step-son [C] came into the room you were on the far side of the bed kneeling with one knee on the bed and your face to [S’s] cheek. She yelled at you and told you to get out of the house. She described your reaction as that of someone where the lights were on but no one was at home. You eventually left the house and went to the naval police station, where you informed a security guard that you had just assaulted your daughter and asked him to contact the police. You admitted to Lieutenant McCoy, the naval officer acting in charge of the base at the time, that you had put your hands down [S’s] pants. You told police that you had touched [S] on the vagina and you made admissions in a record of interview. However, in your trial before this court you pleaded not guilty to the charge and you denied sexually abusing your 11 year old step-daughter.
…
6.One of the matters raised in your plea was your mental condition at the time the offences were committed. You have a long history of depression and anxiety. You saw a psychiatrist in 1989 because of nightmares you were suffering because you were involved in an incident in which a submarine you were on dived with two crew members on deck. After four years on submarines you were released in the early 1990s for anxiety problems. You continued to see a psychiatrist for anxiety and depression in the 90s and in 1997 you started on antidepressant therapy. You have been on antidepressants ever since. Another factor that affected you was a fire on [a RAN vessel]. You knew the four officers who were killed in that fire. You were ordered to go into the fire ravaged engine room with forensic police. You have recollections and nightmares of the fireball that you believe killed the officers in the engine room. You started seeing Dr John Cronin in 2001, and you have seen him regularly until these offences were committed.
7.After you committed this offence, you were admitted to Victoria House for some time, and then to Pine Lodge Clinic until early February 2005. In his assessment, Dr Pinta’s opinion was that you suffered from post-traumatic stress disorder and major depression. The latter illness probably followed the two traumatic incidents you suffered in the navy. …In conclusion he says that you suffer from chronic psychiatric illness that will require ongoing and long term therapy. You are currently on medication and you are attending a day patient group program at the Pine Lodge Clinic.”
Ground 1
A voir dire was conducted in relation to the admissibility of the applicant’s record of interview and whether s.400 of the Crimes Act 1958 permitted his step-children to seek exemption from giving evidence against him. In the course of the interview, which took place on 8th November 2004, the applicant confessed to digital penetration of S. That was the admission referred to by the judge in paragraph 2 of the sentencing remarks set out above. It was the only evidence of penetration at the trial. The defence was that the confession the applicant had made was not true.
In re-examination on the voir dire, defence counsel asked the applicant whether making a false confession was something that he had ever done before. The prosecutor objected on the ground of relevance. Defence counsel said that there was sufficient similarity in the circumstances of the earlier confession to make it relevant to the issue whether the present confession was true. The applicant was then asked the following questions and gave the following answers:
“[DEFENCE COUNSEL]: In circumstances of a similar nature to the circumstances of this night, have you previously made a false confession? --- Yes, I have, Your Honour.
Could you explain firstly in what circumstance of a similar nature have you done so? --- It was a nature of I’d grabbed my step-son around the throat. I went the next day and handed myself to a navy doctor who contacted a DOHS [Department of Human Services] team, they came out and the DOHS team proved that I didn’t grab my son by the throat at all, that he’d done it himself. Actually he admitted it to them.
…
When did that incident that you’re speaking of, that is your going and handing yourself in to naval doctors, did you say? --- Yes.
When did that occur? --- That was when I was in Sydney so it would have been 2001.
In what way do you say the circumstances of that incident, you handing yourself in there, are similar to what’s happened here? --- The same – same in the – in the way that I thought I’d done something, my wife yelled at me, the next day I went and handed myself in to somebody and then it was proven that I didn’t do it.
…
You said that you handed yourself in the next day to a navy doctor, is that so? --- That is correct.
You said that your wife had yelled at you, is that right? --- Yes.
What had she yelled at you on that occasion? --- The same thing get out of the house or I’ll contact the police.
What did you; did you get out of the house? --- No, I – I locked myself in the bedroom overnight, by myself.
The navy doctor, when did you go and see him or her? --- The first available opportunity the next day.
Had you on that occasion in fact assaulted your son in the way that you told the naval doctor you had? --- No, I hadn’t.
You said that your wife yelled at you and told you to get out of the house. Did that happen just once or on more than one occasion? --- On several occasions.”
The voir dire proceeded and, after a ruling on s.400 of the Crimes Act and the record of interview, counsel returned to the proposed evidence of the previous confession. The prosecutor renewed her objection that it was irrelevant. Defence counsel submitted that the previous confession was relevant. It was said to have been made, as in the present case, after the applicant had been yelled at by W. So, too, at the first available opportunity, the applicant had confessed. Counsel foreshadowed that the evidence that the confession was false would come not only from his client but, by way of cross-examination if he were permitted to ask questions about the topic, from W and C. Counsel’s understanding was that C would confirm that he had alleged that the applicant had assaulted him and that his mother “took it on board”, but that it was a false allegation.
The judge ruled that the proposed evidence was insufficiently relevant. There was no formal ruling, but an important part of her Honour’s reasoning was that this was a single incident in 2001. It did not disclose a pattern of making false confessions. The evidence was also said to be self-serving, but it was not a prior consistent statement and counsel had indicated an intention to elicit evidence from W and C as well. There is no reason to doubt counsel’s instructions that at least C would confirm that the earlier confession was untrue. No doubt the judge was also influenced by the fact that the earlier confession did not relate to a sexual assault and the victim was a boy, not a girl.
For practical purposes the only issue in this case was whether the confession of incest was true. The applicant gave evidence, both in examination-in-chief and in cross-examination, as to why he had confessed. It is sufficient to set out the following question and answer:
“Why did you tell the police that you did in the way that we hear on the tape?---My wife yelled at me to get out of the house. I went to the police station – well, I went to the naval police station. I was over-medicated, I was confused. I was distressed.”
Mr Priest submitted that evidence that the applicant had previously made a false confession, in not dissimilar circumstances, might rationally affect the jury’s determination of the critical issue in the case. He referred to R. v. Hazim,[1] Jackson v. The Queen,[2] R. v. Hay[3] and R. v. Nelson,[4] as well as to two general statements about the nature of relevance.[5]
[1](1993) 69 A.Crim.R. 371 at 378.
[2](1962) 108 C.L.R. 591 at 596-597.
[3](1983) 77 Cr.App.R. 70 at 75.
[4](1991) 105 F.L.R. 121.
[5]Smith v. The Queen (2001) 206 C.L.R. 650 at 653 [6]-[7] and Nicholls v. The Queen (2005) 219 C.L.R. 196 at 215 [37].
Mr McArdle argued that the evidence defence counsel proposed to elicit was not relevant. Even if it was logically relevant, which was denied, it was not sufficiently relevant to be admissible in accordance with the principle enunciated in R. v. Stephenson.[6] In that case Young, C.J., Nelson and Harris, JJ. said:
“Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.”
[6][1976] V.R. 376 at 380-381.
A subsidiary point Mr McArdle made was that, if evidence of this kind could be relevant, that would be so only because it was propensity evidence. Unfavourable propensity evidence is not excluded because it is irrelevant, but because it is prejudicial. I did not understand counsel to deny that. His point was that the proposed evidence in the present case did not establish even propensity.
The admissibility of the evidence is to be decided as a matter of common sense. Decisions on relevance rarely establish a legal precedent. We are dealing with a mentally disturbed accused who had taken an overdose of prescription medication at the time of the alleged offence. The only evidence against him was his confession. He said that the confession was false and that, three years earlier, he had falsely confessed to physically assaulting the complainant’s brother. On that occasion, too, he said that he was confused because his wife had yelled at him. In 2004 he had confessed to the police. In 2001 he had confessed, as a sailor, to a naval doctor.
I consider that the applicant’s evidence of the previous confession and the evidence that defence counsel proposed to elicit from W and C were sufficiently relevant to satisfy the test in R. v. Stephenson. They did not go solely to credibility. They went to the likelihood that this man, in these circumstances, would panic and admit to an offence that he had not committed. If that is propensity evidence, so be it. It is sufficient, in my opinion, to say that it was probative in the circumstances.[7] The jury should have been given the opportunity to accord it such weight, if any, as they thought fit.
[7]Thus, Sir Frederick Pollock, writing to Mr Justice Holmes on 23rd April 1931, said of the expression res gestae that it “merely fudges the truth that there is no universal formula for all the kinds of relevancy.”
Before turning to ground 2, I observe, with respect, that it would have been better if the learned trial judge had allowed this evidence to be received. If her Honour was clearly of opinion that it was inadmissible, I suppose it was her duty to rule on the issue presented by the prosecutor; but the prosecutor, too, might have been wiser to let the applicant tell his story. It was not going to do any harm. In particular, the compass of the evidence and proposed cross-examination would not unduly lengthen or complicate the trial. If the judge had any doubt, the prudent course was to allow the evidence to be led.
Ground 2
At common law, a son or daughter is both competent and compellable to give evidence against his or her parent. In some circumstances that rule may operate harshly. Accordingly, Parliament has made the following provision in s.400 of the Crimes Act:
“(3)In any proceedings against the accused, the presiding judge or magistrate shall exempt the accused’s wife, husband, mother, father or child (in this section called the ‘proposed witness’) from giving evidence on behalf of the prosecution, either generally or in relation to a particular matter, if, but only if, he is satisfied upon application made to him in the absence of the jury (if any) that, having regard to all the circumstances of the case, the interest of the community in obtaining the evidence of the proposed witness is outweighed by –
(a)the likelihood of damage to the relationship between the accused and the proposed witness; or
(b)the harshness of compelling the proposed witness to give the evidence; or
(c)the combined effect of the matters mentioned in paragraphs (a) and (b).”
Sub-sections (4), (5) and (6) contain ancillary provisions, including a non-exhaustive list of the circumstances to be taken into account pursuant to sub-s.(3). Sub-section (6), referred to in ground 2, imposes an obligation on the presiding judge or magistrate to satisfy himself or herself that a child is aware of the right to apply for exemption.
It was submitted below, and again in this Court, that “child” in s.400 includes a step-child. It was unnecessary to resolve that question in order to decide the application for leave to appeal against conviction. Ground 1 having succeeded, ground 2 could make no difference. In particular, success on the latter ground would not entitle the applicant to a judgment and verdict of acquittal. It is necessary to decide the question presented by ground 2 solely because it may arise at the new trial, if the Director proceeds with that trial. The Crown case was not strong and the applicant has already served 14 months of the sentence.
In my opinion “child” in s.400 does not include a step-child.[8] The only basis for an expansive reading would be purposive construction, but the purpose to be served is not clear. The community has an interest in protecting family relationships, including the relationship between a parent and step-child, but the community also has an interest in witnesses being compelled to give evidence in criminal proceedings. The balance is to be struck by the legislature, not by the courts.[9] Parliament has used language which, according to its natural meaning, does not include a step-child. For what it is worth, there are other provisions of the Crimes Act in which step-children are expressly mentioned. As it happens, they include s.44, the prohibition against incest.
REDLICH, J.A.:
[8]The position will be different if the Uniform Evidence Act comes into force in Victoria. See the definition of “child” in the Dictionary referred to in s.3 and the substantive provisions of s.18.
[9]Compare R. v. Pearce [2002] 1 Cr.App.R. 39.
My reasons for joining in the orders made by this Court on 30th October 2006 were substantially the same as those now articulated in the judgment of Callaway, J.A.
SMITH, A.J.A.:
I concur in the reasons published by Callaway, J.A.
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