R v T, CN - [2008] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, CN
[2008] SASC 350
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
11 December 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appellant charged with one count of aggravated indecent assault and one count of unlawful sexual intercourse with a child under 14 years – complainant was the appellant’s daughter – complainant was 11 years of age at the time – appellant was convicted by a jury on both counts.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appellant argues prosecution failed to call material witnesses – trial judge directed jury not to speculate about evidence that was not before them – whether trial judge erred by failing to give a Jones v Dunkel direction to the jury.
Held: Prosecution notified defence that only complainant would be called – defence did not request other witnesses to be called – prosecutor acted appropriately in advising defence – trial judge’s direction not to speculate was appropriate in the circumstances – ground 1 of appeal dismissed.
Dyers v The Queen (2002) 210 CLR 285, applied.
Jones v Dunkel (1959) 101 CLR 298; Whitehorn v R (1983) 152 CLR 657; R v Apostolides (1984) 154 CLR 563, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Prosecutor cross-examined appellant about his relationship with his children – prosecutor suggested appellant was “disengaged” from his children, and therefore more likely to commit the offences against the complainant – appellant argues that prosecutor’s conduct was improper – whether prosecutor’s conduct resulted in unfairness to the appellant.
Held: Prosecutor entitled to cross-examine on the appellant’s relationship with the complainant – although prosecutor’s closing address used unnecessary language, trial judge’s directions restored any potential imbalance – ground 2 of appeal dismissed.
Libke v R (2007) 230 CLR 559, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Held: Appellant not denied a fair trial – verdict was not unsafe and unreasonable – no miscarriage of justice – ground 3 of appeal dismissed.
HELD: APPEAL DISMISSED.

R v T, CN
[2008] SASC 350
ANDERSON J.
Introduction

The appellant was charged with one count of aggravated indecent assault and one count of unlawful sexual intercourse with a child under the age of 14 years. The complainant in each instance was the appellant’s daughter who at the time of the offences was 11 years old. Both incidents are alleged to have taken place on the one occasion on 27 January 2007
The appellant pleaded not guilty and the matter proceeded to trial before a jury. The appellant was convicted on both counts.
The appellant appeals on the following grounds:
1.The learned trial judge erred in law in failing to give a Jones v Dunkel direction to the jury. (Jones v Dunkel is reported in (1959) 101 CLR 298.)
2.The prosecutor invited the jury to engage in unfounded and unfair speculation as to why the applicant might have engaged in the conduct the subject of the alleged offences.
3.By reasons of the matters set out in grounds 1 and 2—
3.1    the applicant has been denied a fair trial;
3.2    the verdict is unsafe and unreasonable;
3.3    there has been a miscarriage of justice.
Background
At the time the alleged offences took place the appellant and his wife, who was the complainant’s mother, were not living together, although they lived on the same property. The appellant in fact lived in a “granny flat” on the property. The alleged incidents occurred in the granny flat. The first count of the aggravated indecent assault was alleged by the prosecution to involve the appellant touching the complainant on her nipple. The second count of unlawful sexual intercourse was alleged to involve the appellant inserting his finger into the complainant’s anus.
The complainant gave evidence and the prosecution called no other witness. The appellant also gave evidence. They were the only two witnesses in the trial.
The circumstances alleged by the prosecution through the evidence of the complainant were that the appellant was on the veranda between the house and the granny flat, having a cigarette, at about the time the sun set. The complainant went out on the veranda to join her father. After dark it was alleged that she went with the appellant to the granny flat. It was alleged that the offending took place sometime after midnight and that after the offending the complainant returned to the main house where she then spoke with her mother, who was asleep on the floor. The complainant was not feeling well and said that she was sick during the night. This was the only occasion on which the complainant had ever gone to her father’s granny flat.
The alleged offending
The complainant said that it was cold on the veranda and she suggested that she and her father should continue their conversation inside. She told the court that they went into the granny flat and her father got ready for bed. He then got into bed and she sat on the bed talking to him.
She said he put his hand on her thigh and when he did that she moved away from him. She then got off the bed and he asked her for a hug and during that time when he was hugging her he put his hand under her shirt and played with her nipple. That was the complainant’s evidence regarding the first count on the information.
The complainant said she laughed it off and went to leave when her father asked her for another hug. This time he put his hand on her vagina and rubbed it. He then hugged her again when he partly pulled down her pants, touched her bottom and put a finger into her anus. That is the allegation relating to count 2 on the information, namely unlawful sexual intercourse.
The appellant denied the alleged offending and denied also the event, namely the fact that the complainant went to his flat on the occasion in question.
The appellant gave evidence and said that the complainant had never come to the granny flat at any time when he was going to bed. He denied any incidents such as those described by the complainant.
Ground 1 – Jones v Dunkel
The appellant argued that both the complainant’s mother and her 16 year old sister, who were present in the house when the complainant returned after the alleged incidents, should have been called as material witnesses. This was on the basis of the prosecution’s obligation to call all material witnesses. It was not suggested that the complainant’s older brother should have been called, even though he was also present in the house when she said that she returned from the granny flat.
Prior to the trial commencing the prosecution advised counsel for the defence that it intended to call only the complainant but that the complainant’s mother would be present and available. The prosecutor added that he did not see any purpose in calling the mother. Defence counsel had been provided earlier with a copy of the statement taken from the mother.
That was clearly an invitation to the defence should they disagree with the prosecutor’s assessment. There was no response to the prosecutor’s invitation.
The statement which the police had obtained from the complainant’s mother was taken on 22 March 2007. The events earlier described by the complainant were alleged to have taken place shortly after midnight on 26 January 2007 and therefore on 27 January 2007. The complainant’s mother in her statement said that the complainant told her the details about the incident on 12 March 2007. It was on that occasion that her daughter told her that “on Australia Day Dad had done something wrong to her”.
Mr Algie, who appeared for the appellant, submitted there was no reference in the statement taken from the mother to the actual events of the evening of 26 January 2007. The declaration made no reference at all to any discussion between the complainant and her mother on the night of the alleged offences.
In her evidence the complainant said that she told her mother that she was not feeling very well. She went to bed in the lounge room and not in her bedroom. Her mother slept in the lounge room normally. She said that her sister got a blow-up mattress for her because she was not feeling well. The complainant told the court that she vomited during the night.
In cross-examination she confirmed that her mother was in bed in the lounge room when she returned from the granny flat. She said that her mother stirred when she came in. She said that she had a conversation with her mother but she was not asked for details.
The complainant told her mother about the alleged offences on a later date and her mother then went to the police and gave a statement.
Mr Algie argued that the mother was a material witness and that there was an obligation on the prosecution to call her, in order to give evidence confirming or denying the events surrounding the incidents.
The principles applicable to the obligation of a prosecutor to act objectively are clear. See, for instance, Whitehorn v The Queen (1983) 152 CLR 657 and R v Apostilides (1984) 154 CLR 563. The role of the prosecutor clearly includes making decisions as to which witnesses should be called as part of the prosecution case. The decisions by the prosecutor as to which witnesses to call would normally follow upon the prosecutor interviewing the witness. The prosecutor made the decision in this case not to call the complainant’s mother and appropriately advised the defence of that decision.
In attempting to support his Jones v Dunkel point Mr Algie acknowledged the difficulty facing him in view of the High Court decision of Dyers v The Queen (2002) 210 CLR 285 at 291. In Dyers, the High Court confirmed that the prosecution has an obligation to call all available material witnesses unless there is some good reason not to do so. (See Dyers per Gaudron and Hayne JJ at [11] and per Callinan J at [118].) However, a further proposition emerging from that case is that generally juries in criminal trials should not be invited to draw inferences from the failure of either party to call witnesses. In particular, the High Court held that as a general rule a Jones v Dunkel direction should not be given in a criminal trial in relation to the failure of the prosecution to call a particular witness. This proposition was enunciated in the joint judgment of Gaudron and Hayne JJ at [6]:
… as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
Mr Algie accepted that he was bound by the proposition enunciated in Dyers at [6].
Mr Algie argued in the alternative that even if this was not a case for a Jones v Dunkel direction because of the reasoning in Dyers case, nevertheless the absence of the witnesses, that is, the complainant’s mother and sister, meant that his client was convicted of the offences following an unfair trial. The unfairness alleged was that not all the relevant material evidence was before the jury.
Mr Pallaras QC, the Director of Public Prosecutions, argued that there was no lack of fairness in the way the trial was conducted. He pointed out that the defence made no response to the letter from the prosecution advising that only the complainant would be called to give evidence. Furthermore, no complaint was made following the opening address by counsel for the prosecution in relation to the absence of other witnesses. He further pointed out that there was no point taken during the prosecution case. Counsel for the defence did request later that a Jones v Dunkel direction be given to the jury.
The point made by Mr Pallaras was that once the prosecutor advised that the complainant’s mother was not to be called, the control of that issue was in the hands of the defence who could have called the witness or asked that the witness be presented for cross-examination. No such request was made.
The direction of the trial judge
The direction given by the learned trial judge on the absence of the mother and sister was in the following terms:
... the onus is always on the prosecution to call all relevant evidence. However, in this case, you know a couple of facts about these other potential witnesses: you know [Mrs T] did not give a statement to police until nearly two months after these events; it has not been explained why the two siblings did not give statements at all. In some circumstances it is appropriate to consider whether these is anything inappropriate about that, whether there is anything sinister about the fact that the evidence is not before you. But in a case like this I suggest to you it is inappropriate to speculate on what witnesses may or may not have told you had they been called to give evidence, particularly in circumstances like this where, as I said, family dynamics can well be complex, and we know only very scant information about what may or may not have transpired. What I suggest you do is concentrate on the evidence that we do have, and not speculate about evidence that is not before you. Having said that, I need to emphasis: if there are gaps in the prosecution evidence, if there are matters about which you find unsatisfactory about the prosecution case as a whole, then it is for the prosecution to satisfy you about any such concerns.
(Emphasis added)
In his summing up the learned trial judge reminded the jury of defence counsel’s suggestion that the jury should be concerned that neither the complainant’s mother nor her sister were called to give evidence. The judge directed the jury that it was inappropriate to speculate on what witnesses may or may not have said had they been called to give evidence. His Honour told the members of the jury that they should concentrate on the evidence before them and not speculate about evidence which was not before them. Following the High Court’s decision in Dyers v The Queen it seems to me that this was entirely appropriate in the circumstances of this case. In my opinion, it would have been, in fact, a misdirection by the trial judge if he had given a Jones v Dunkel direction.
I would therefore dismiss ground 1 of the appeal.
Ground 2 – Unfair speculation by the prosecutor
The prosecutor cross-examined the appellant on what he termed the “disengagement theory”. The matters put to the appellant in cross-examination were that he had distanced himself from his children and had made a decision to have nothing more to do with them. The disengagement theory, it seems, was that because of his disengagement it was more likely that the appellant did not regard the complainant as his child, and that this could explain how he had come to commit the offences.
Mr Algie emphasised the final address of the prosecutor, the relevant portion of which is set out hereunder:
So, accepting all of that, you might think his evidence was that he was a man, on his evidence, that was completely disengaged from his family, completely disengaged from his children, and specifically disengaged from [the complainant], and he said that he didn't go to sport things or any activities the kids had because he didn't have a car and he didn't drive. He did tell you though that he would walk to the [suppressed] Hotel to get a drink or would walk to [suppressed] to get a drink. He was prepared to do that but he just wasn't engaged with those children. Now, it's a matter for you but you might think he was so disengaged from his children - they're not his stepchildren, they're not someone else's children, they're his children, he brought them into the world - that he was so disengaged that he no longer looked on [the complainant] as his child. And those of you with children you will know, you love and protect and nurture your children, and I emphasise the word 'protect' them. If you're so disengaged and you don't think about them as your kids, and you don't think about them in that nurturing, loving, caring way, you might be prepared to cross the Rubicon, ladies and gentlemen, to step over the line because this is not your child that you love and care for.
(Emphasis added)
Mr Algie characterised the disengagement theory as a psychological thesis. He referred to the decision of the High Court in Libke v The Queen (2007) 230 CLR 559, and in particular in the judgment of Kirby and Callinan JJ at paragraphs [34] and [35]:
The principles governing the conduct of a prosecutor are well settled. They were restated by Deane J in Whitehorn v The Queen:
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.
In the same case, Dawson J said this:
No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process.
The role of prosecuting counsel is not to be passive. He or she may be robust, and be expected and required to conduct the prosecution conscientiously and firmly. Because a criminal trial is an adversarial proceeding, there is at least the same expectation of defence counsel. The obligation of counsel extends to the making of timely objections to impermissible or unacceptable questions and conduct. But it is also the duty of the trial judge to make appropriate interventions if questions of those kinds, capable of jeopardising a fair trial, are asked. The duty of the trial judge is the highest duty of all. It is a transcendent duty to ensure a fair trial.
[Citations omitted]

Mr Algie put his primary position as being that the prosecutor’s remarks were “so inflammatory and so personally demonising of the accused as a father” and therefore so potentially damaging in the minds of the jury as to make the comments incurable by any subsequent direction. He described it as “a crescendo of speculative theory” following “a careful and calculated development over the course of the entire cross-examination”.
Mr Algie criticised the prosecutor for his cross-examination. Mr Pallaras argued that it was entirely proper for the prosecution to conduct that cross-examination to establish the actual relationship which existed between the complainant and the appellant. In my view it obviously was a relevant relationship and it was relevant and necessary for the prosecutor to explore it. I therefore do not accept Mr Algie’s criticism of the cross-examination by the prosecutor.
Prosecuting counsel must be at pains to ensure that nothing which is said by the prosecutor in his or her address to the jury conveys in any way at all a personal opinion. Likewise, the language used by the prosecutor should be carefully chosen. Prosecutors should guard against expressing themselves in terms which could be regarded by a jury as inflammatory or intemperate.
Mr Pallaras conceded that the manner in which the prosecutor addressed the jury was not in the same category as the cross-examination. He conceded that it may have been in some respects inappropriate but directed the court to the real issue, namely, whether, if it was inappropriate, there was a resultant miscarriage of justice. Mr Pallaras argued that not only was it capable of being cured but that it was in fact cured by the trial judge in his charge to the jury.
Mr Pallaras submitted that the issue was effectively taken away from the jury because the judge told the jury that it was dangerous for them to reason in the way suggested by the prosecutor.
In his summing up the learned judge raised the prosecutor’s disengagement theory. He reminded the jury of what counsel for the defence had said in a strong attack both on the words chosen and on the theme of the address by the prosecutor. More importantly the judge reminded the jury that there was no evidence before them that the appellant no longer looked upon the complainant as his child. His Honour said:
I do not recall him saying that. I do not think he did. He told you that he did not interact well with people. He told you that he was irritated by interruptions from his children, that he was not a person who enjoyed conversation when he was reading a book or watching the TV or whatever.
He then went on to say:
Leaving aside what anybody might think about a person who holds those attitudes, it is a long step from there to say that he no longer regarded these people as his children.
He then went on to talk about family dynamics and told the jury that they should not reason that a person who held certain attitudes is more or less likely to have committed offences such as the ones before the court. He told the jury again that it was a very dangerous step to draw such conclusions from the evidence.
The judge then went on to tell the jury that they must only consider the evidence and put the other considerations aside. In particular he reminded the jury that the prosecutor had asked them to accept the complainant as a witness of truth. That was precisely the issue and the judge was correct in focusing the jury on that aspect.
Mr Pallaras suggested that a combination of all those references by His Honour effectively removed the disengagement theory from the jury.
Although the language in the impugned passages of the prosecutor’s address to the jury contained some emotive and unnecessary language, the judge did nevertheless restore any potential imbalance by his clear directions.
In my opinion there was nothing wrong with the way the prosecutor conducted the cross-examination. Indeed, it was quite appropriate and necessary for the prosecutor to cross-examine on the issue of the relationship between the appellant and his children. However, despite that, the overall effect of the cross-examination, the closing address, the language used, and the development of the “disengagement theory”, was such that it could have potentially sent the jury down a path of reasoning not open to them. In particular the whole of the passage in the address of the prosecutor which terminates with the suggestion that the appellant “might be prepared to cross the Rubicon” because he no longer regarded the complainant as his daughter, was inappropriate. The conclusion which the prosecutor invited the jury to reach and the language he used, in my view, went too far. It was a departure from the standard of fairness expected of a prosecutor.
This situation required careful handling by the trial judge to avoid a potential miscarriage of justice. However, in my view the judge did appropriately restore any potential imbalance by his clear directions. He correctly focussed the jury on the relevant issues and clearly warned the jury against any form of propensity reasoning. It follows therefore in my view that the appellant fails on ground 2.
Ground 3 – Miscarriage of justice
Ground 3 is, of course, a combination of the matters set out in grounds 1 and 2, and for the reasons which I have already given, it is my view that the appellant was not denied a fair trial, the verdict was not unsafe and unreasonable and there has been no miscarriage of justice.
Conclusion
For these reasons, I would dismiss the appeal.
WHITE J. I would dismiss the appeal. I agree with the reasons of Anderson J.
KELLY J. I agree that this appeal should be dismissed for the reasons given by Anderson J.