R v T G W
[2000] VSCA 28
•16 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 15 of 1999
| THE QUEEN |
| v |
| “T.G.W.” |
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JUDGES: | PHILLIPS, C.J., BROOKING, J.A. and HAMPEL, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 February 2000 | |
DATE OF JUDGMENT: | 16 March 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 28 | |
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CRIMINAL LAW – Appeal against conviction on two counts of commission of an indecent act with a child under 16 – Grounds alleged unsafe and unsatisfactory verdicts - Possible effect on jury’s deliberations of directed acquittals on other counts; wrongful admission of evidence obtained in breach of s.464C Crimes Act 1958 or wrongful exercise of discretion thereon – Appeal dismissed – M. v. The Queen (1994) 181 C.L.R. 487, applied.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr R.A. Elston | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr P. Mellas | McNamaras |
PHILLIPS, C.J.:
The applicant, who is aged 41, was convicted in the County Court at Melbourne in February, 1999 on two counts of commission of an indecent act with a child under 16 to whom he was not married (counts 1 and 4 on the presentment). These offences, which carried maximum penalties of ten years’ imprisonment, were allegedly committed at Ardeer between 1 January and 31 December, 1994 and 1 January, 1996 and 20 August, 1997 respectively. The jury, by direction of the learned presiding judge, acquitted the applicant of three other counts (2, 3 and 5) of taking part in an act of sexual penetration with a person aged between ten and 16 to whom he was not married. These offences had allegedly taken place between 1 February and 31 July, 1997. (The presentment herein wrongly shows amendments to count 3 which were, in fact, allowed as to count 4.)
After hearing a plea for leniency, his Honour sentenced the applicant, who had no convictions for similar offences, to a total effective sentence of three years which was wholly suspended for a like period. The applicant subsequently lodged notices of application for leave to appeal against conviction and sentence. That touching sentence was subsequently, by leave of this Court, abandoned. The grounds pleaded touching conviction were subsequently amended by leave of this Court so as to read:
“1.The verdicts in relation to counts one and four were unsafe and unsatisfactory because the evidence of the complainant was contradictory and manifestly unreliable, and, of such poor quality that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt.
2.The learned trial judge erred in allowing the admission into evidence of the record-of-interview dated 2 September, 1997, in that:
(i)He erred in finding that there had been no breach of s.464C of the Crimes Act; and,
(ii)(if a breach of s.464C had in fact occurred) in exercising his discretion to admit the record-of-interview in any event.”
It is now necessary to set out in summary form the evidence adduced at the applicant’s trial.
The complainant was born in August, 1982. At the time of the alleged offences she lived with her mother and stepfather and a brother. The applicant is related to the stepfather and was considered by the applicant to be her uncle.
During the time encompassed by the alleged offences the complainant’s parents worked for various employers and the complainant and her brother would, after school hours, return to their home until one of their parents arrived. As to count 1, the complainant gave evidence that in 1994 the applicant came to her house while her parents were at work. Her brother was home. She admitted the applicant to the house. He made a cup of coffee in the kitchen and then walked into her bedroom, shutting the door. During a period of five or ten minutes he touched her over her clothes on her breast and vagina. The complainant could not put a day of the week to this incident nor could she say if it occurred on a school day. She said that she knew at the time sexual conduct was involved.
The complainant failed to give any evidence-in-chief as to counts 2 and 5. As to count 3, the complainant gave evidence that she had been present when the applicant performed some work at Sunshine. (He was a self employed hydraulic hose fitter.) After the completion of the work, according to the complainant, the applicant drove to a Bi-Lo store where he took a packet of condoms off a shelf and then asked her to go to his van, as he was concerned a woman in the shop might be suspicious. He made the purchase, took her home and went with her into the house. The complainant went to her bedroom and the applicant followed some five minutes later shutting the door. He asked her to take off her clothes and she took of her pants and top so that she was only wearing her underclothes. She sat on the bed. The applicant, she said, pushed her back on the bed and got on top of her taking off her underpants. He put his penis in her vagina and was breathing heavily, pushing her up and down for some ten to 15 minutes. She could not recall if he was dressed or undressed, but she did see a blue condom wrapper on the floor which was gone after he had left. She could not say whether he ejaculated. He finished, did up his pants and told her “Don’t tell anybody or else we’re both going to get into trouble.” He then left.
Cross-examined, the complainant accepted that the incident may have occurred in 1996. She said she did not see the applicant naked. (The above evidence as to dates led to an application by the Crown Prosecutor later in the trial for count 3 to be amended. After argument this application was withdrawn.)
As to count 4, the complainant said that this offence occurred at the applicant’s house. She thought his wife and children had gone away. He had called at her house and asked if she would go and help him clean concrete. Her father agreed to this. At his house the applicant pulled her into the bedroom telling her he wanted her to look at something. She gave a description of the bedroom, “walk-in wardrobes”, a dressing table, “an ensuite bathroom” and a bed with black sheets and a doona cover which was “black with pink and green flower things on it”. She thought the bed was a water bed. Directed by the applicant she sat on the bed with her underwear on. The applicant pushed her, got on top of her, held her down and put his penis in her vagina. He was breathing heavily for about five or ten minutes but she was unable to say whether he ejaculated. After this, they both got dressed and cleaned the concrete with a machine. The applicant paid her $15 and took her home.
Cross-examined, the complainant admitted she was happy to help clean the concrete and although worried he might try and have sex with her she went to his home anyway.
The complainant also gave evidence of a number of uncharged acts committed upon her by the applicant. She said he had started touching her on her breast and vagina from when she was nine years old and therefore in grade 4 or 5. This conduct, she said, occurred repeatedly at the applicant’s house or in his van. She also gave evidence that she had complained to a teacher at her school, Miss L. who had questioned her as to concerns relating to her school work. She told the teacher, untruthfully, that her father had recently died and she had attended his funeral. The teacher asked her if anyone had been touching her and she assented to this. There was evidence that the teacher then alerted the complainant’s mother and the complainant first spoke to the police in August, 1997.
The prosecution called the complainant’s mother who described hours she kept during early 1996. She said she was then working with a catering company for about a year on a shift of 5:00 p.m. to 8:00 p.m. She then started working afternoon shift at a nursing home. Cross-examined, she said she started working for Safeway in March, 1996 some four days a week on an afternoon shift finishing at approximately 9:00 p.m. Re-examined, she said she worked for Safeway in 1997.
The prosecution also called her stepfather. He said in 1992 he was working for the railways and would arrive home about 5:30 p.m. In 1994, he was truck driving, arriving home between 5:00 and 6:45 p.m. In 1995 he worked for Optus with various arrival times at his home after his work. In 1996 he worked for Coles for four months on an afternoon shift 4:00 p.m. till midnight. He also worked another shift 7:00 a.m. to 5:45 p.m. In 1997 he returned to truck driving with a home arrival time of 8:00 p.m.
A police officer named Miller gave evidence that he and a colleague (one Keating) called at the applicant’s home in Ardeer “between 6:30 and 7:00” on 2 September, 1997. (At the time of trial, Keating was ill and did not give evidence.) The applicant was required to accompany them to the Sunshine Police Station. They arrived there about 7:00 a.m. The applicant’s wife, who had been present at the home, was not really informed as to the subject of the police activities. Indeed, Miller’s evidence was that it “may’ve happened” that the applicant was advised there was no need to tell his wife why he was going with the police, “Just tell her you’re coming with us”. I shall return, when dealing with ground 2, to a more detailed account of subsequent events at the police station. At the trial, the Crown relied on a tape of a record-of-interview, taken on the above date (Exhibit A), in as much as, in it, the applicant admitted frequent visits to the complainant’s home and entering her bedroom on occasions. He completely denied any improper conduct with her. A tape of a second record-of-interview made on 8 June, 1998, Exhibit B, was tendered without objection.
The applicant stood mute at his trial but called his wife who gave evidence that their family had never had a black doona with pink or green flowers or anything similar. Cross-examined, she agreed, however, that they had had a water bed and there was an ensuite to the bedroom. She said that she had visited her mother with her children on the day the washing of the concrete was undertaken by the applicant.
I now turn to the arguments of counsel. Mr Mellas, for the applicant, elected to address ground 2 at the commencement of his submissions. This ground arose out of a challenge, at trial, to the admissibility to the record-of-interview of 2 September, 1997. Counsel then appearing for the applicant had submitted that it was obtained in breach of s.464C of the Crimes Act1958 and, therefore, it ought to be excluded from the evidence upon a discretionary basis or, alternatively, if it was lawfully obtained, it should be excluded on the basis that its admission would operate unfairly to the applicant.
That section, materially, reads:
“(1)Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she-
(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
(b) may communicate with or attempt to communicate with a legal practitioner-
and, unless the investigating official believes on reasonable grounds that-
(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed-
the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.”
A voir dire was undertaken at the trial to assist in determining the admissibility of the record-of-interview, and the witness Miller and the applicant gave evidence. A record of the use of the applicant’s mobile phone was also produced. The learned judge, after hearing argument, found there had not been a failure to comply with the provisions of s.464C. His Honour added that should he be wrong in this finding he was not persuaded to exercise his discretion against the admission of this record-of-interview. It had been submitted to him that it ought to be excluded in the exercise of the discretion to exclude evidence unlawfully obtained or the discretion to exclude evidence where its admission would operate unfairly to an accused person.
Mr Mellas submitted that nothing had turned on the credibility of the witnesses at the voir dire. Further, he explained, it had been common ground in this exercise that s.464C had application and that the applicant had been properly informed of his rights under the Act.
Mr Mellas submitted that on the facts which were common ground or otherwise found, it was not open to the judge to find the section had been complied with. He also submitted that the learned judge’s purported exercise of his discretion miscarried in that:
(1)He placed too much weight upon the applicant’s demeanour during the record-of-interview.
(2)He failed to consider the prejudicial content of a record-of-interview (otherwise not the subject of proof) and consequential damage to the standing of the applicant.
(3)He placed insufficient weight upon the nature of the breach and its impact upon the applicant’s defence of the allegations made.
(4)He did not appear to consider that the failure to comply with the provision might arise in circumstances where such failure was neither deliberate nor flagrant but in fact reckless.
(5)He failed to consider the prospect of a response from the lawyer and whether or not the deferment of questioning had been for a reasonable period (and in turn what period of time would have been reasonable) having regard to the requirements of the section and the circumstances prevailing at the time the applicant was interviewed.
The result of these errors, omissions and failures, counsel submitted, led to the wrongful introduction of material prejudicial to the applicant, which material he might not otherwise have to contend with. Accordingly, so the argument went, the applicant lost an opportunity of acquittal otherwise open to him.
Mr Elston, for the Crown, drew attention to an aspect of the record-of-interview which tended to show, he submitted, that the statutory provisions had been complied with. I shall later return to and cite this aspect. He said the judge had been concerned to assess whether the compliance of the police was real or merely perfunctory and he had found that it was real. It was apparent, counsel submitted, that the judge gave careful consideration to the discretionary exercise and all relevant matters. As to the content of the record-of-interview, it gave the applicant an opportunity for his strong denials of misconduct to be brought to the jury’s attention.
As to ground 1, Mr Mellas submitted that the Court should undertake an independent review of the evidence and apply the test to be derived from high authority, M. v. The Queen (1994) 181 CLR 487. Relevant to that review, counsel submitted, were the following matters.
“(a)There was no corroboration of the allegations of the complainant in relation to the particular offences complained of.
(b)There were discrepancies between the complainant’s evidence as given upon the trial and:
(i)Statements made by her to investigating police on separate occasions
(ii)Evidence given by her at committal.
(c)There were inconsistencies between the evidence given by the complainant and that given by other witnesses, e.g. the evidence as to the existence of a flower pattern doona cover.
(d)The complainant’s version of events was improbable having regard to her evidence and other evidence available in relation to the circumstances prevailing as to the manner and location of the alleged offending.
Counsel also referred to:
(e)The circumstances leading to and in which complaint was made in respect to each of the allegations.
(f)The acquittals in respect to counts 2, 3 and 5.
And invited:
(g)Consideration as to the possible impact upon the jury’s deliberations of the directed acquittals in relation to counts 2, 3 and 5 of the presentment.”
Developing these matters in argument, Mr Mellas conceded that while one would not expect evidence corroborative of the complainant to be produced in relation to the counts on which the applicant was convicted, (thus accepting a submission of the Crown), it was a significant aspect of the proceeding that no corroborative evidence was produced as to the counts alleging sexual penetration which, according to the complainant, had occurred frequently and over a period of time. Counsel also pointed to variations in the complainant’s evidence as to the incident which allegedly followed the visit to the Bi-Lo store (count 3). The complainant had variously placed this incident in 1997 and 1996. It was further contended that there was conflict between the evidence of the complainant and other witnesses, e.g. the evidence of the applicant’s wife as to the doona cover. So, too, the complainant had allowed that she knew what was going to happen before going in the company of the applicant to jobs and in his vehicle. The evidence, counsel submitted, showed that her initial complaint resulted from a leading question from her teacher and that the complainant had materially added to her allegations during her dealings with the police. She had not mentioned the events alleged to constitute count 3 when she first was interviewed by the police.
Counsel submitted that the directed acquittals were relevant to this ground and that the jury were entitled to and should have had regard to the failure of the complainant in these instances to swear up to her previous statements.
Counsel relied on the cumulative effect of all these matters in support of his submission.
Taking all these matters into account, it was argued, the Court should conclude that it was not open upon the whole of the evidence for the jury to be satisfied beyond reasonable doubt of the guilt of the accused on either count.
Mr Elston submitted that the complainant’s evidence was subject to detailed cross-examination and criticism. All this the jury heard and assessed. There was no evidence of any motive in the complainant to give a false account and there was no incident or incidents in the trial which served to substantially undermine her credibility. Although there was no corroboration in the strict sense of her evidence, there was some supporting evidence of opportunity in that given by her parents. The applicant’s wife had agreed the bedroom had an ensuite and a water bed. The cleaning of the concrete was a task which manifestly did not need the assistance of a child.
I now turn to my conclusions.
In relation to ground 2, I am satisfied that the learned judge made the following findings:
·The applicant was permitted to make, and did make, two phone calls from the police station seeking to communicate with legal practitioners. The first at about 7:05 a.m. and the second at about 7:44 a.m.
·During the first telephone call, which triggered the operation of an answering machine, the applicant left a recorded message for a lawyer.
·The second phone call was an attempt to communicate with a barrister, a Mr Gates, and this call produced a recorded message of the barrister’s clerk containing contact phone numbers.
·There was no urgency in the conduct of the prospective interview and it could have been delayed.
·That during the interview (his Honour having listened to a recording thereof) the applicant said words to the effect that he had already left a message for a lawyer.
These findings involved a lack of acceptance of the applicant’s evidence that he had not left such a message. In so concluding his Honour was apparently assisted by listening to a recording of the record-of-interview. The relevant portion of the interview reads:
“Alright, Trevor, I intend to interview you today in relation to some allegations that have been made against you, those allegations being of a sexual nature. Before continuing, I must inform you that you are not obliged to say or do anything, but anything you say or do may be given in evidence. Do you understand that?
Mm’m. Yes.
I must also inform you of the following rights. You may communicate with, or attempt to communicate with, a friend or relative to inform that person of your whereabouts. And you may communicate with, or attempt to communicate with, a legal practitioner, being a solicitor or a barrister. Do you understand these rights?
Yes.
Do you wish to exercise any of these rights before the interview proceeds?
Can’t answer that question. Yeah – no, no, I’ve already - - -
Well – well - - -?
…. ….
Would it be correct you – your wife knows you’re down at the police station at the moment?
She knows.
Okay. And it would it be correct to say that you’ve just left a message on the answering machine at your solicitor’s office?
That’s correct.”
In his evidence, the applicant did not dispute the accuracy of the above transcript but said, as to the answer relating to leaving a message, …”I just said that to give it an answer”.
During the course of his evidence, the applicant alleged that after the second phone call he was told by the police officer Keating, variously, “We were just going to go on with the interview”; “We’re not hanging around any longer”; “We were going to start”; “We’re not waiting around any longer”. Taking the words of his Honour’s ruling literally, he appears to have found that it was the applicant who voiced these sentiments (117). It may be that the transcript is inaccurate. It contains other obvious errors, e.g. “Miss Clark” instead of “his clerk”. The judge may have misunderstood the evidence. But in any event, it is implicit in the judge’s ruling that although the applicant claimed that at the commencement of the record-of-interview he did want to speak to a solicitor, he was satisfied the applicant was content to go on with the record-of-interview after the second phone call. Such a view is, of course, not conclusive of compliance with the section, but the applicant’s state of mind at that point of time was relevant to the question of whether he had left a message during the first phone call and whether the police assessment that they had waited “a reasonable time after the (first) phone call” was acceptable. Such contentment in the applicant would not be surprising, for the evidence showed that his wife, who had been present when he was taken away by the police, had been seen briefly by an officer in circumstances where the police did not “want to cause too much of a rumpus”. In addition, the applicant, who was not charged on the day of the interview, agreed he did not in fact consult a solicitor for some three months afterwards in circumstances where he “thought that the police would investigate this and would just scrap it, anyway, because it sounded so stupid”.
In my opinion, each of the factual findings made by the learned judge was open to him on the evidence. Applying those findings to the section, I find no error in his Honour’s conclusion that it had not been breached. I am unable to accept any of the submissions made on behalf of the applicant and which appear in paragraph 19. The “cumulative effect” argument for the applicant is not made out. The applicant’s demeanour during the record-of-interview was relevant to the judge’s consideration of whether he was freely acknowledging that he had left a message on the telephone in circumstances where he had denied doing so. His Honour did note the prejudicial content of the record-of-interview and its implications in the trial. He was alert, as an exchange during argument shows, to potential conflict between the applicant and his brother as to the “run” he was permitted of the brother’s house. The record-of-interview contained statements of visits by the applicant to the complainant’s home and of occasions when he had been in her bedroom, but he strongly denied any improper conduct with her. The judge was never asked to consider a reckless breach of the section. He noted that there was no urgency in the conduct of the interview. An important relevant question was whether, for reasons I have already alluded to, the applicant acquiesced in the commencement of the interview. Shortly after the passage which I have cited, the applicant was asked, “Happy with the treatment so far?” He replied, “Yes.” This conclusion, that his Honour did not err in holding that the section was not breached, makes it unnecessary that I consider the balance of the submissions made as to this ground on behalf of the applicant. This ground fails.
As to ground 1, it is true that there was, as to counts 1 and 4, no corroboration of the allegations of the complainant as to those counts. There was, however, what I shall term “supporting evidence and circumstances”. The complainant’s parents provided evidence of opportunity. The applicant’s wife accepted that there was an ensuite off the bedroom and that the bed was a water bed. It was common ground that the complainant went to the applicant’s home on the occasion constituting count 4 upon his proposal that she assist him in concrete cleaning an activity in which the assistance of a child might be considered quite unnecessary and inappropriate. There were discrepancies in the complainant’s evidence but I would uphold the submission made by the Crown “there were no demonstrated discrepancies on counts 1 and 4”. It is also fair comment that the complainant’s conduct appeared inconsistent in terms of being prepared to be in the applicant’s company when sexual misconduct by him might be anticipated. But as at the dates pleaded for count 1, the complainant was 12 years of age. As to count 4, she was aged 15 and she was 16 when she gave her evidence at the trial. According to her, she had been repeatedly told by the applicant “Don’t say anything or else we’ll both get into trouble”; or, “Don’t tell anybody or else we’re both going to get into trouble”. It was for the jury, in the light of this and other evidence, to assess the allegedly inconsistent conduct of the complainant; her lack of prompt complaint; her untruthful account of her father’s death to her teacher and the circumstance that her initial complaint followed a leading question “had someone been touching you” and her adding to and omitting complaints in her dealings with the police. Her explanation for such an omission was that she did not wish to get the applicant into further trouble because her stepfather was close to him. Frequent references in high authority make clear that due allowance must be made for the role of the jury in assessing submissions of this sort. The complainant was extensively cross-examined and the abovementioned matters ventilated. In his charge to the jury, because he thought it relevant to the complainant’s credit, the judge reminded the jury of all her cross-examination including that relating to counts which had been the subject of directed acquittals. This exercise took up no less than 14 pages of transcript.
As to the alleged effect of the directed acquittals, the learned judge also carefully directed the jury that they must consider grounds 1 and 4 separately in the light of the evidence which applied to each and that they could not use to convict some other evidence alleged by the complainant. (403, 407)
His Honour also directed the jury, in terms that have not admitted of any criticism, that there was no corroboration of the complainant’s evidence as to counts 1 and 4 and that it was dangerous to convict upon such uncorroborated evidence, yet they may do so:
“…but only after subjecting her evidence to cautious and anxious scrutiny and, having done so, are satisfied to act upon it, notwithstanding this warning by direction.” (410)
Accordingly, applying M v. The Queen (supra) I have come to conclude that it was open to the jury on the whole of the evidence touching counts 1 and 4 to be satisfied beyond reasonable doubt of the guilt of the applicant as to those counts. This ground must fail.
In my opinion, this application should be dismissed.
BROOKING, J. A.:
I agree that for the reasons given by the Chief Justice this application should be dismissed.
HAMPEL, A.J.A.:
I agree, for the reasons given by the Chief Justice, that this application should be dismissed.
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