R v T, WA
[2014] SASCFC 3
•30 January 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, WA
[2014] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Anderson)
30 January 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was convicted, following a trial by Judge alone, of one count of persistent exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The victim, JT, was the appellant’s step-daughter. The alleged offending was said to have occurred at various locations between 1970 and 1981 and included many different acts of sexual exploitations. JT was about 50 years of age when she gave evidence. The appellant appeals against his conviction.
The appellant appeals on the grounds that: the Judge failed to direct herself with respect to the forensic disadvantage caused by the delay; the Judge excessively intervened in the examination and cross-examination of JT; the verdict was unreasonable and not supported by the evidence. The appellant also seeks permission to appeal on the further ground that the Judge failed to make findings as to the particular occasions upon which the appellant had committed the acts of sexual exploitation constituting the offence.
Held (Kourakis CJ, Vanstone and Anderson JJ agreeing):
(1) Section 34CB of the Evidence Act 1929 (SA) does not require a judge to include within his or her reasons a direction, regarding the forensic disadvantage caused by delay, that that section prescribes ([18] - [22]).
(2) The Judge adequately dealt with the forensic disadvantage caused by the delay ([23] - [36]).
(3) Excessive judicial intervention, cross-examination on prior inconsistent statements, and ss 28 and 29 of the Evidence Act 1929 (SA) discussed ([37] - [75], [93] - [96]).
(4) The Judge made a number of erroneous evidential rulings during JT’s evidence. Despite that finding, no substantial miscarriage of justice arose and a reasonable person would not have apprehended from the interventions that the Judge had prejudged the factual issues in dispute or adopted a favourable bias toward JT or compromised her capacity to objectively evaluate the evidence ([76] - [77]).
(5) The verdict was not unreasonable having regard to the evidence ([83] - [90]).
(6) The Judge set out the Information at the commencement of her reasons and expressly found the accused guilty as charged of the offences of persistent sexual exploitation of a child. Permission to appeal on the further ground refused ([78] - [82]).
(8) Appeal against conviction dismissed ([91]).
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50(1); Evidence Act 1929 (SA) s 34CB, s 12A, s 28, s 29, referred to.
R v T, WA [2013] SADC 120, discussed.
R v Bakhuis (2012) 112 SASR 536; B, VN v Police [2011] SASC 151; R v Haak (2012) 112 SASR 315; Longman v R (1989) 168 CLR 79; R v Keyte (2000) 78 SASR 68; R v Maiolo (No 2) (2013) 117 SASR 1; Lockwood v Police (2010) 107 SASR 237; R v Esposito (1998) 45 NSWLR 442; R v Macbeth [2008] SASC 71; R v Thompson (2002) 130 A Crim R 24; Galea v Galea (1990) 19 NSWLR 263; Vakauta v Kelly (1989) 167 CLR 568; Johnson v Johnson (2000) 201 CLR 488; Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55; Tousek v Bernat (1959) 61 SR (NSW) 203); Michel v The Queen [2010] 1 WLR 379; [2009] UKPC 41; R v Hamilton [1969] Crim LR 486; R v Walter (1993) 61 SASR 260; R v Orton [1922] VLR 469; R v Bedington [1970] Qd R 353; S v Sehan (1914) 11 CAR 13; R v Gillespie & Simpson (1967) 51 Cr App R 172; R v M, BJ (2011) 110 SASR 1, considered.
R v T, WA
[2014] SASCFC 3Court of Criminal Appeal: Kourakis CJ, Vanstone and Anderson JJ
KOURAKIS CJ: The appellant was charged on Information in the District Court with one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and an alternative count of unlawful sexual intercourse contrary to s 49(3) of the CLCA.
In a trial by Judge alone, the appellant was convicted of the first count. The statement of that offence was that between 26th day of June 1970 and the 26th day of June 1981 at Elizabeth South, Lock, Kapunda and Largs North over a period of not less than three days the appellant committed more than one act of sexual exploitation of JT, a person under the age of 18. Many acts of sexual exploitation were particularised including manual and oral touching of JT’s breasts and genitals, and digital and penile sexual intercourse.
The appellant appeals against his conviction on the following grounds:
Ground 1
The Judge failed to direct herself to scrutinise the evidence of the complainant carefully having regard to the forensic disadvantage of the appellant caused by the delay in making the complaint;
Ground 2
The Judge excessively intervened in the examination and cross‑examination of JT; and
Ground 4
The verdict was unreasonable and was not supported by the evidence.
The appellant also seeks permission from this Court to appeal on a further ground (ground 3), permission having been refused by a single Judge of this Court, that the Judge failed to make findings as to the particular occasions upon which the appellant had committed the acts of sexual exploitation constituting the offence.
I would dismiss the appellant’s appeal grounds 1, 2 and 4. I would refuse permission to appeal on ground 3. My reasons follow.
Factual circumstances
JT was born on 26 June 1963. The appellant formed a relationship with JT’s mother from when JT was about eight years of age. Indecent touching of the appellant commenced soon thereafter.[1] The appellant and her mother were at that time living in Elizabeth South.
[1] T32-33.
When JT was in grade 6, and aged about 11, the family, except her brother RT, moved to Lock where the appellant worked in the railways. In Lock, JT shared a bedroom with her two sisters. That room was located across the hallway from the room shared by the appellant and JT’s mother. JT testified that in Lock the appellant indecently assaulted her on almost every night in the bedroom she shared with her sisters. The offending progressed over time from indecent touching to include fellatio and cunnilingus.
JT testified that her mother regularly attended a Weight Watchers group in Cummins whilst they lived in Lock. According to JT the appellant initially drove her mother to Weight Watchers, but after her mother obtained a licence she would drive to Cummins alone. JT gave evidence that other than the nights when her mother went to Weight Watchers her mother was at home at the time of the offending. JT’s evidence was that the indecent assaults included the touching of her genitals and digital penetration. JT testified that she punched and hit the appellant to make him stop. JT gave evidence that, even though she protested loudly enough for her mother to hear, her mother never came to her assistance. JT explained that she believed that her mother deliberately ignored her calls because her mother did not love her.
JT testified that on an occasion after her mother started driving herself to Weight Watchers, the appellant came into her bedroom and attempted penile sexual intercourse even though her sisters were in the same bedroom.
JT also gave evidence of two occasions on which she was indecently assaulted in Lock outside of the appellant’s frequent visits to her bedroom. JT testified that the appellant touched her indecently at the Lock public swimming pool where he was a swimming coach. She also gave evidence that the appellant digitally penetrated her vagina whilst she was in the bath on the day of her thirteenth birthday party after the guests had left.
JT also gave evidence that she disclosed the appellant’s offending to her brother RT after he joined the family in Lock. JT testified that, far from receiving support from RT, she was twice raped by her brother during the time that the family lived in Lock.
The appellant and JT’s family moved from Lock to Kapunda in late 1977 and JT turned 15 years of age there. In Kapunda, JT had her own room. The appellant’s sexual offending against JT continued in Kapunda. Penile‑vaginal intercourse continued several times a week thereafter.[2]
[2] T74-78.
JT testified of a particularly callous act of intercourse at Kapunda which took place after the appellant had accused her of having sex with a boyfriend. The appellant roughly handled JT to effect penile‑vaginal sexual intercourse even though she was menstruating at the time.
The appellant and JT’s family moved to Largs North before she turned 17.[3] Penile‑vaginal sexual intercourse continued at Largs North. JT ran away from the Largs North home.
[3] T80.
The prosecution also called the witness, SS. SS is the appellant’s niece and proximate in age to JT. She testified of one occasion on which she heard JT loudly tell the appellant in strong terms not to touch her. SS also deposed in cross-examination that whenever JT’s mother was at Weight Watchers she saw the appellant there as well.
The prosecution also called VR with whom JT had shared a domestic relationship in her adult life. VR was called to rebut suggestions made to JT in cross-examination that she remained close to the appellant and her family in her adult life. VR gave evidence that JT had only very limited contact with her family after 1986.
The appellant gave evidence. He denied ever sexually assaulting or touching JT. He testified that he always drove JT’s mother to Weight Watchers in Cummins. The appellant gave evidence that he did not stay overnight away from Lock for work purposes. He testified that he was on the management committee of the Lock swimming pool but that he had never acted as a swimming instructor.
Ground 1 – s 34CB directions in a trial by Judge alone
Section 34CB of the Evidence Act 1929 (SA) (“the Evidence Act”) provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
On its own terms, s 34CB(2) of the Evidence Act confines the giving of the direction it prescribes to a jury. Moreover, the “rule of law or practice” as to Longman warnings abrogated by s 34CB(1) concerned a trial judge’s charge to a jury.
In R v Bakhuis,[4] Kelly J doubted that s 34CB of the Evidence Act applied to a trial by Judge alone.[5] In R v Haak,[6] I held that section 12A of the Evidence Act did not apply in a trial by Judge alone.
[4] (2012) 112 SASR 536, [57].
[5] Cf B,VN v Police [2011] SASC 151.
[6] (2012) 112 SASR 315, [38].
Section 34CB of the Evidence Act abrogates rules of law or practice requiring judges to warn juries of the dangers of convictions where there has been a substantial delay in bringing a complaint. The rationale of those rules was that the delay might impair the fairness of the trial in ways which a jury might not understand.[7] The premise underpinning the common law requirement to give a Longman direction was that judges did understand the forensic disadvantages and the purpose of the rule was for judges to impart that understanding to the jury.
[7] Longman v R (1989) 168 CLR 79, [91].
Accordingly, having regard to both its text and context I would hold that s 34CB of the Evidence Act does not require a judge to include within his or her reasons a direction of the kind that that section prescribes. That construction of s 34CB of the Evidence Act does not entail a conclusion that a judge presiding over a criminal trial without a jury does not need to pay close attention to any forensic disadvantage arising from a delay in bringing a complaint. A judge is required to give reasons for his or her verdict. As Kelly J observed in Bakhuis,[8] if delay is a material issue in a trial, a judge’s reasons must adequately deal with that issue. Whether or not a failure to adequately deal with the issue amounts to an error of law or whether, for any other reason, it results in a miscarriage of justice, will depend on the particular circumstances of each case and a reading of the Judge’s reasons as a whole.[9] However, a judge’s reasons need not replicate a judge’s charge to a jury.[10]
[8] R v Bakhuis 112 SASR 536, [57].
[9] Cf R v Haak (2012) 112 SASR 315, 324.
[10] R v Keyte (2000) 78 SASR 68, [54].
The delay in this case was great. There was a delay of more than 30 years before JT reported the matter to police and when the matter was first drawn to the appellant’s attention. JT was 50 years of age when she gave evidence.
The Judge dealt with the issue of delay as follows:[11]
[11] R v T, WA [2013] SADC 120, [33]-[37].
Delay
In this case there has been a period of over 33 years between the alleged end of the offending and the trial. There was a delay of over 30 years before the matter was reported to police and when the matter was first drawn to WAT’s attention by police. The delay has resulted in a significant forensic disadvantage to the accused. By that I mean that the accused has difficulty challenging and responding to allegations about events that occurred so long ago. I note that the delay has led to the complainant being unable to remember matters of detail, for example, the detail of precise times and dates. The matter of delay has disadvantaged the accused because of a reduced ability to test JT’s account in detail.
The delay has disadvantaged the accused because if there had been a prompt complaint of all or some of the offending, he may have been in a position to remember back to a relevant time and what, if anything, happened in respect of those circumstances. The accused may have been able to point to other persons who would have been able to shed light on the incident or whether he was present at the time of the incident.
I also note that the absence of prompt complaint means that there is no medical or scientific evidence supporting the complainant’s account of events. Particularly, the complainant describes digital and penile penetration which may well have yielded some forensic material capable of shedding light on the matter. The absence of such material may also have had importance.
[The judge then set out s 34CB(2)].
I have had regard to the matter of forensic disadvantage in scrutinising the evidence of the complainant and when considering whether there was other evidence that may have been available to assist in proof or otherwise of the matter. I also have regard to the forensic disadvantage that the accused has suffered both as to his recall of events and his ability to gather evidence which may support his position. I have regard to this issue when deciding whether I am satisfied that the charge has been proved beyond reasonable doubt.
I commence my consideration of this ground by drawing attention to the very wide terms in which the Judge described the appellant’s disadvantage in the first two of the above cited paragraphs of the summing up. Nevertheless, the appellant complains that the Judge did not, in those passages, adequately deal with the following particular forensic disadvantages:
(a) The appellant’s inability to obtain his employment records;
(b)The appellant’s inability to obtain records about his, and JT’s involvement with the Lock swimming pool;
(c)An inability to find witnesses as to the occasion of JT’s 13th birthday at Lock;
(d)The inability of the appellant to obtain evidence generally from friends and associates concerning how the appellant and JT acted towards each other during the period of the alleged offending;
(e)The inability of the appellant to obtain medical notes and school records relating to JT for the period of the alleged offending;
(f)The inability of the appellant to obtain information as to the attendances of JT’s mother at Weight Watchers in Cummins and to adduce evidence from other witnesses who may have been able to support his evidence that he always attended at Weight Watchers with JT’s mother; and
(g)The inability of the appellant to call witnesses about the relationship between himself and JT after JT left home.
In my view, the appellant did not suffer any material disadvantage from the absence of his employment records. The Judge dealt with this specific issue saying:[12]
Counsel for the accused stressed that the accused suffered a forensic disadvantage by reason of the delay. I have considered that matter not only in the context of careful consideration of JT’s evidence but also as to the difficulties that the accused may face in defending the allegations. I do not think that the absence of the accused’s work records is of significance. There was no dispute as to the places of work and residence. The problem for proof of the allegations and for the accused is that he does not know a specific time and place for each alleged touching and he did not come to know of the allegations whilst those surrounding events were fresh.
[12] R v T, WA [2013] SADC 120, [161].
I agree with the Judge that in the absence of greater specificity by JT as to the time of the offending, the employment records could not materially assist the appellant’s defence. Moreover, the alleged offending at Lock generally occurred well after working hours. The lack of specificity in JT’s account, no doubt also largely caused by the delay, is in itself a serious disadvantage. However, it is plain from the first of the cited paragraphs that the Judge took that general disadvantage into account.
The appellant contended that the records themselves may have facilitated a cross‑examination of JT about the precise times on which offences were committed and that that cross-examination which might have revealed demonstrable inconsistencies. That submission is very speculative. In any event, such a proven inconsistency would be of limited weight because of the time which had elapsed between the events and the trial. This particular disadvantage is, again, an aspect of the general disadvantage caused by the delay, to which the Judge was clearly alive.
As to disadvantage (b) I have mentioned the dispute in the evidence about the appellant’s involvement with the swimming pool and, in particular, whether he was a swimming instructor or simply a member of the management committee of the pool. That issue is a marginal one. Even if JT’s recollection of the appellant’s actual role were shown to be mistaken it would be unlikely to adversely affect her credibility in a material way. Moreover, even if the appellant was never formally responsible as an instructor it would remain an open question whether he had supervised JT and other children in a way which would leave JT with that impression. There was a similar dispute about whether the appellant gave JT driving lessons. It is unlikely that witnesses who could effectively deny that the appellant ever gave JT driving lessons could be found even if a very early complaint had been made. The disadvantage under which the appellant laboured on this issue arises from the kind of offending alleged which, by its nature, generally occurs and is alleged to occur in private. Insofar as in this case it is compounded, in a general way, by the delay the Judge was again alive to the problem.
As to the occasion when JT turned 13 years of age the appellant’s complaint in paragraph (c) is simply a particular manifestation of the general disadvantage arising from delay mentioned by the Judge in the first sentence in the second of the cited paragraphs. Moreover, even if the complaint had been made more quickly, the guests of the birthday party could hardly have given probative evidence on the question of what occurred in the bathroom after they left.
The general disadvantage referred to in paragraph (d) was, as I have just observed, expressly taken into account by the Judge.
Turning to the complainant in paragraph (e), in my view, evidence about the appellant’s performance at school and her medical treatment during the period of the alleged offending is unlikely to have revealed material. The appellant’s complaints in that respect are, again, largely speculative.
As to the issue of whether the appellant always accompanied JT’s mother to Weight Watchers, it can be accepted that, if the complaint had been made earlier, it is likely that witnesses with a better recollection as to whether JT’s mother ever attended alone might have been found. However, with respect to both the prosecution and defence it was JT’s mother who was likely to have the most reliable memory on that issue, and she was not called. Moreover, the appellant had the benefit of SS’s evidence on this question, but the Judge nonetheless accepted JT. The difficulty in finding other witnesses as to whether the appellant accompanied JT’s mother to Cummins after she obtained her driver’s licence is no more than a particular aspect of the appellant’s disadvantage in, to use the Judge’s words, being unable “to point to other persons who might have been able to shed light on the incident[s]”.
Alleged disadvantage (g) is not significant. It must be remembered that this was an issue raised by the appellant in cross-examination.
The appellant also contended in support of this ground, that the Judge’s reference to the evidence which might have been yielded by an early medical examination of JT indicated that the Judge was having regard to the possibility that the evidence might have supported JT’s account. I accept that adverting to such a possibility is irrelevant speculation. Moreover, a judge might occasion a miscarriage of justice by directing a jury in a way which suggested that it was appropriate to speculate in that way.[13] However that is not how I understand the Judge’s reasons. In that passage the Judge is adverting to the disadvantage to the appellant in having lost the possibility that an examination might not have found any indication of penetration to which the Judge adverted in that passage.
[13] R v Maiolo (No 2) (2013) 117 SASR 1, [181]-[189].
The appellant makes a similar complaint about the Judge’s reference to the effect of delay on JT’s memory. However, again, the Judge is adverting to the difficulty that JT’s poor recollection caused the appellant in testing and rebutting her imprecise allegations.
Ground 2 – excessive judicial intervention
In my opinion, excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice on any one of three basic grounds. In Lockwood v Police, Vanstone J articulated those three grounds in this way:[14]
However, there are dangers inherent in participating in the questioning of witnesses. First, there are matters of perception. The judicial officer might, by such questioning, identify himself or herself with one party or the other. That might lead to a defendant or a party apprehending a discrimination or even bias against his case. Then there is the fact of it. The eyes of the judicial officer might become “clouded with the dust of conflict”: as Lord Greene MR put it in Yuill v Yuill [1945] P 15 at 20; [1945] 1 All ER 183. Denning LJ observed in Jones v National Coal Board [1957] 2 QB 55 at 64: “an over-speaking judge is no well-tuned cymbal”. Then, the intervention may make it impossible for defence counsel to properly present the defence, or it might impede a witness in giving his account in such a way as to do himself justice. Therefore, it is as well for judicial officers to strive to ensure that by the tone and language of their interventions they maintain neutrality and that such interventions are no more than are necessary to achieve legitimate purposes.
[14] (2010) 107 SASR 237, [16].
I would state the grounds on which a judge’s intervention might vitiate a conviction a little differently, as follows:
(i)the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);
(ii) the questioning gives an appearance of bias (the bias ground); and
(iii)the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
I prefer to state the dust of conflict ground in terms of compromising the capacity of the Judge to adjudicate because an appeal court can never do anything more than speculate as to whether the judicial officer’s vision was in fact “clouded by the dust of conflict”. If the appeal court, on an appeal by way of rehearing, concludes that a judge’s findings were wrong in fact on the evidence, it may correct them without relying on the Judge’s excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial Judge, particularly given the Judge’s advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the Judge’s finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court’s view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge’s traditional role compromises the judicial capacity to objectively evaluate the evidence.
I acknowledge the subtlety of the distinction between the bias ground and the dust of conflict ground as I have articulated it. Many interventions will attract a consideration of both grounds. If an intervention gives an apprehension of bias it will also, of necessity, show that the capacity to objectively and dispassionately evaluate the evidence has been compromised. However, there will be some, probably fewer, interventions which, even though they do not suggest prejudgment, show that the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
There is some analogy between interventions which compromise the capacity of a judge sitting alone to properly evaluate the evidence and interventions by a judge in a jury trial which are likely to influence the jury’s assessment of the evidence.[15]
[15] R v Esposito (1998) 45 NSWLR 442, 468-473; R v Macbeth [2008] SASC 71, 75; R v Thompson (2002) 130 A Crim R 24, [33]-[43].
In Galea v Galea,[16] the Court of Appeal in New South Wales considered an appeal from a judgment in which the Judge had extensively questioned the party against whom judgment was eventually given. The questions implied disbelief of the party and culminated with the loaded question, “do you always negotiate under the cloud of deliberate falsehood?”. When an application for disqualification was made the Judge expressed displeasure, took umbrage at the fact that counsel was pre-armed with authorities on the issue of recusal for bias, and ultimately dismissed the application.
[16] (1990) 19 NSWLR 263.
On the appeal against the Judge’s refusal, Kirby A-CJ proceeded on the basis of principles set out by Dawson J in Vakauta v Kelly[17] and accepted that a conclusion of reasonable apprehension of bias should not lightly be drawn. Kirby A-CJ said:[18]
Although JRL is a case quite different from the present, it does illustrate the fact that the test for the appearance of impartiality is not one applied only at the outset of proceedings or in respect of preconceptions. From first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point there is a loss, in fact or appearance, of that impartiality the trial will thereafter miscarry. The litigant who can establish such a miscarriage has not had a trial according to law. Subject to other arguments, for example, as to waiver, that litigant is entitled to a re-trial.
[17] (1989) 167 CLR 568.
[18] (1990) 19 NSWLR 263, 278.
Kirby A-CJ later summarised the considerations bearing on the question of an apprehension of bias arising out of excessive judicial intervention as follows:[19]
A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and into the perils of self-persuasion: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.
The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-1111 ALR 618 at 626; see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427 [1970] 1 NSWR 654.
It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill and Gautier (at 117).
[19] (1990) 19 NSWLR 263, 281.
Kirby A-CJ dismissed the complaint that there was a reasonable apprehension of bias grounded in the judge’s questioning in Galea for several reasons. First, Kirby A-CJ referred to the growing acceptance of the utility of a judge expressing tentative views as a hearing develops so that counsel might have the opportunity to correct and to persuade before judgment.[20] Secondly, Kirby A-CJ emphasised that the hypothetical lay observer must base his or her opinion on a fair assessment of a judge’s conduct over the entire course of the trial. An apprehension of loss of impartiality cannot be made from short and emotional exchanges taken out of context and weighed in isolation. Thirdly, Kirby A-CJ referred to the detailed and coherent way in which the judgment dealt with the issues. I feel bound to express some doubt that conduct during the trial which gives cause for a reasonable apprehension that the judgment might be affected by bias can be dispelled by that very judgment, no matter how convincingly it may read.
[20] See also Johnson v Johnson (2000) 201 CLR 488, [13].
Kirby A-CJ summarised his assessment of the apprehended bias complaint made in Galea as follows:[21]
Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant’s prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas. The judgment at great length reviewed the facts and with unusual attention to detail explained, fully and unassailably, the rational bases of the conclusion to which his Honour felt driven.
[21] (1990) 19 NSWLR 263, 279-280.
In Galea, the appellant also impeached the judgment on the additional ground that by his intervention the Judge had “turned his back on his duties as a Judge, assumed instead those of the advocate and had descended from his neutral duties on the bench to the well of the courtroom, thereby depriving the appellant of a trial according to law”.[22]
[22] (1990) 19 NSWLR 263, 280.
In considering the complaint so framed, Kirby A-CJ referred to Yuill v Yuill,[23] Jones v National Coal Board,[24] and Tousek v Bernat.[25]
[23] [1945] 1 All ER 183.
[24] [1957] 2 QB 55.
[25] (1959) 61 SR (NSW) 203, 209.
In Yuill v Yuill, Lord Greene MR said: [26]
… A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in this case, prolonged and covers practically the whole of the crucial matters which are in issue.
In Jones v National Coal Board, Denning LJ said: [27]
The judge’s part … is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’
[26] [1945] 1 All ER 183, 188.
[27] [1957] 2 QB 55, 64.
Kirby A-CJ then proceeded to identify the following considerations against which a complaint that there has been unwarranted departure from the common law adversarial trial process might be evaluated:[28]
The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F.
[28] (1990) 19 NSWLR 263, 281-282.
In Michel v The Queen,[29] the Privy Council recently considered the circumstances in which a departure from the adversarial process may result in a miscarriage of justice. Michel had been convicted of money laundering in the Royal Court of Jersey. The trial was presided over by a legally qualified Commissioner and two lay assessors known as Jurats. Michel appealed against the conviction on the ground that the Commissioner had questioned the defendant extensively and in a manner which clearly suggested that he disbelieved the defendant. In that case, Lord Brown, in delivering the judgment for the Privy Council, identified the different ways in which judicial intervention might lead to a miscarriage of justice. He commenced by citing a passage from the judgment R v Hamilton,[30] an unreported judgment of 9 June 1969, in which Parker LCJ identified three grounds on which judicial intervention may result in the quashing of a conviction in a criminal trial. They were:
·telling the jury in unduly strong terms how they should evaluate the evidence;
·interventions which prevent defence counsel from properly presenting the defence case; and
·preventing the defendant from doing himself justice in the giving of his evidence.
Lord Brown later identified the following as a separate ground on which excessive judicial intervention might result in a miscarriage: [31]
To that admirable analysis the Board would add that not merely is the accused in such a case deprived of “the opportunity of having his evidence considered by the jury in the way that he was entitled”. He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials. All will be familiar with Denning LJ’s celebrated judgment in Jones v National Coal Board [1957] 2 QB 55.”
[29] [2010] 1 WLR 379.
[30] [1969] Crim LR 486, CA.
[31] Michel v The Queen [2009] UKPC 41, [31].
Ultimately the Privy Council in Michel held that the intervention required the conviction to be quashed because it was an egregious departure from the role of a judge in a criminal trial, was calculated to influence the Jurats and grounded a reasonable apprehension of bias. The Privy Council said:[32]
Naturally, in Jersey, where the facts are decided by the Jurats (the Commissioner retiring with the Jurats but not joining in the fact-finding unless the Jurats disagree), the facts are not summed up so that the Nelson approach is not available to the Commissioner. But that cannot begin to justify the Commissioner seeking to give the Jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. Indeed, it does not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial. Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
Regretfully the Commissioner’s interventions during this trial breached each one of those canons. One can understand his incredulity during parts of the defendant’s evidence. But quite why he thought it necessary to manifest it is altogether more difficult to follow. Not only was it improper, but he could scarcely have thought the Jurats unable to perceive for themselves many of the defence’s “implausibilities, inconsistencies and illogicalities”.
[32] Michel v The Queen [2009] UKPC 41, [34]-[35].
In support of this ground of appeal, the appellant provided a schedule listing all of the occasions on which the Judge intervened in the course of evidence-in-chief and cross-examination. In all there were about 50 occasions. The bare number of occasions on which a judge intervenes does not give any meaningful indication of error. It is a trial judge’s obligation to ensure that the testimony of a witness is led in a coherent and fair way. To do so it is sometimes necessary for a judge to ask questions of the witness, to require counsel to withdraw or reframe questions, or to raise concerns he or she may have about the length or nature of counsel’s examination or cross-examination. It follows that there is likely to be an inverse relationship between the frequency of a judge’s intervention and the standard of counsel appearing for the parties.
The great majority of the Judge’s interventions in this case are described in the schedule as “general interventions”. It is plain from the transcript that the interventions so described were prompted by the need to clarify an ambiguity in the evidence or to otherwise ensure that the subject matter of the questioning was fully and properly addressed. Those interventions can be put aside.
Two other interventions of which the appellant complains may be quickly disposed of. One complaint is founded on the Judge’s question: “That is the sexual touching by [the appellant]”. The appellant contends that the question shows that the Judge had formed a view that the appellant had in fact sexually assaulted JT. It is clear from the transcript that that is not the case at all. The Judge’s question was directed at identifying whether JT was testifying about indecent assaults committed by the appellant or her brother.
The appellant complains that, on another occasion, the Judge indicated that she might impose a time limit on cross-examination. However, the Judge never did impose a time limit and never stopped the cross-examination on the grounds of its prolixity. The cross-examination of JT was much more protracted than it could have been and was sometimes needlessly repetitive. A trial judge has a difficult and sensitive responsibility to ensure that witnesses, particularly vulnerable witnesses, are not unnecessarily subjected to oppressive and vexatious cross-examination. On some occasions, the judge might discharge that duty by disallowing particular questions. On other occasions, the most efficient way to prevent an abuse of the court’s processes may be to allow counsel to prioritise his or her questions within an allocated time.
There are several interventions of which the appellant complains that require closer consideration. The first concerns JT’s evidence-in-chief about the particularly callous occasion of penile‑vaginal intercourse which occurred in Kapunda to which I earlier referred. Counsel for the prosecution elicited evidence leading up to the occasion and the fact of intercourse. He then asked JT whether, at that time, JT had reached puberty. Her Honour, appreciating from the prosecutor’s opening that on this occasion JT was menstruating, proceeded to ask JT questions to elicit that evidence and a description of the violent way in which the appellant effected intercourse. When her Honour had completed questioning JT on that subject, the Judge explained to JT why she had elicited the evidence saying:[33]
The reason I just asked you to speak to me about that is because you are speaking about something very personal and I thought it might be easier to speak to me because I am a woman. If that’s the case you can always do that if it makes it easier. I am sure that Mr Heffernan is not the least bit offended.
It is not apparent to me on the face of the transcript that, before the Judge intervened, JT was experiencing any difficulty in giving her account of the incident or that the prosecutor was having any difficulty in framing questions to elicit the evidence, but there may have been indications in the demeanour of JT which alerted her Honour to some reticence on JT’s part.
[33] T77.
There will often be occasions, particularly in the case of vulnerable witnesses in which it will advance the interests of justice for the Judge to ask questions which ordinarily would be left to counsel. Of course, care needs to be taken to avoid the appearance of counter transference between the judge and the witness.
In my view, even though the approaches of trial judges may differ in cases of this kind, the Judge’s questioning of JT on this topic fell within proper bounds. The questioning was limited and the Judge gave a valid reason for her intervention. There is no reason to think that the Judge lost the advantage of judicial detachment by reason of her questioning of JT on that sensitive topic or by giving her explanation for doing so. Nor is it reasonable to apprehend from those interventions that the Judge held a bias towards accepting JT’s evidence. The reasonable bystander must be taken to appreciate the responsibility which trial judges carry to protect vulnerable witnesses from unnecessary distress.
The next intervention of some significance concerns a complaint that the Judge unduly restricted the cross-examination of JT concerning the improbability of the appellant indecently assaulting JT in the bedroom she shared with her sisters in the small home at Lock. The appellant’s trial counsel commenced cross-examination on that issue by eliciting from JT that the appellant had indecently assaulted her on nearly every night and that JT often loudly told him to stop. Indeed JT agreed that at times she yelled at the appellant to stop. The appellant’s counsel established that there was about five feet between the bunk bed in which JT slept and the single bed in which her sister slept and that JT’s brother came in and out of the house from the sleep out. JT also testified that her bedroom and her mother’s bedroom were almost opposite each other across the hallway.
The appellant’s counsel then cross-examined JT as follows:[34]
[34] T133-134.
QWhat I want to suggest to you is that at no stage did Mr T touch you in the way you described sexually.
AI am telling you beyond reasonable doubt you are wrong.
QYou never moved from your single bed to sleep with your sister or sisters, did you, at any stage.
AI never woke them up. I was always too scared he would go near them if I went near them.
QYou never went outside and tried to stay with [RT] in his room.
ANo.
QYou never went –
HER HONOUR: Before you continue on this line of questions; is this to comment or are you suggesting she, a seven year old who was being sexually abused, should have been taking action to avoid it?
[Appellant’s counsel]: No, I am asking whether she did those things and she indicated ‘No’.
HER HONOUR: But she never indicated she did. What is your point? What is the relevance of the question?
[Appellant’s counsel]: Surely it is relevant to see what she did, if this is happening then one of her possibilities would be presumably to go and sleep with her sister, one of her sister’s bunks, go and sleep outside with Ricky in his flat, go and stay with mum in the mum’s bed.
HER HONOUR: Why don’t you make that comment if that’s the case. This is like commenting on some child’s failure to report sexual assault.
[Appellant’s counsel]: I am not suggesting that.
HER HONOUR: You are asking questions about ‘If he did these things why didn’t you go and try and escape from him?’; is that what your line of question is about?
[Appellant’s counsel]: I was asking whether she changed her behaviour as a result. She indicated these things continued to happen over a lengthy period of time and I was simply asking your Honour whether she did anything else or whether she just–
HER HONOUR: Mr Heffernan, do you have any objection?
MR HEFFERNAN: I didn’t object but I think there is a limit to both the weight that could be given to the answers, for obvious reasons, but also to the extent to which my friend can go. To a great extent these are matters in common because there is no evidence she did do certain things. If my friend wants to comment on that she is entitled to. I think the question has limited relevance.
HER HONOUR: I won’t allow those questions.
The subject matter of the steps which JT took or did not take to escape the predations of the appellant is clearly relevant to the issue of its occurrence. Of course the weight which might be accorded the failure of a child to take protective action of the sort suggested by the cross-examiner is another thing altogether. The weight will usually be slight because the intellectual and psychological capacities of young children do not empower them to resist the actions of adults. However, it is not unknown for children who are frightened, by any number of things, to seek comfort from siblings or parents.
It cannot be said therefore that the subject matter broached by the cross-examiner was irrelevant because it carried no weight. Moreover, it should be noticed that the Judge’s intervention commenced on the incorrect factual premise that JT was seven years of age at the time, when JT was 11 when her family moved to Lock. It was not until JT was 15 that the family moved away from Lock to Kapunda.
The factual question being explored by the cross-examination was whether a child of about twice the age postulated by the Judge might have taken some of the steps suggested. I acknowledge, again, that that question needs to be answered in the context of a child who has been abused since the age of seven and that, in that context, JT’s failure to take the steps is again not of great weight, but it is not so bereft of any evidential significance as to be irrelevant. In short, the prosecutor was right to observe that he had not objected because, albeit of limited weight, the questions were relevant. In my opinion the Judge erred in disallowing the questions.
There was not sufficient reason, such as a repetition or prolixity, to limit the cross-examiner’s questioning, at that point in time. Nor is it to the point that it was common ground that JT had not taken the steps to escape the appellant which the cross-examiner was suggesting. If, as was clearly the case, the appellant’s counsel intended to challenge the improbability of the offending occurring on the basis of JT’s failure to take that action, then it was necessary for the appellant’s counsel to put JT and the prosecutor on notice by cross-examining on the subject matter. The questions asked by the appellant’s counsel properly gave JT an opportunity to explain why she had not taken the suggested evasive action. Indeed, JT took the opportunity afforded to her by the cross‑examination to explain that she did not wish to worry her sisters by waking them up, and that she was frightened that, by going near them, she might direct the appellant’s prurient interests towards them. Even if JT had not spontaneously given those explanations, the cross‑examination by the appellant’s counsel properly opened the matter for re-examination by the prosecutor.
I will turn to the significance of the curtailing of that part of the cross‑examination of JT after considering a further intervention by the Judge.
The appellant’s counsel cross-examined JT about her use of illicit drugs. JT admitted to taking the drug LSD and “magic mushrooms”. She also admitted that she had smoked cannabis regularly from the age of 18. JT had contracted a brain tumour which was surgically removed in 2010. It was then put to JT that she was smoking cannabis until shortly before the discovery that she had a brain tumour. JT replied that she had stopped smoking marijuana in 2009 when she had met her current partner. Counsel for the appellant then put to JT that she had reported ongoing recreational use of cannabis to a neuropsychologist who had interviewed her shortly before the brain tumour was surgically removed. The question was put in this form:[35]
[35] T207.
QWhat I put to you is that you have reported – you have previously said that at 18 years you would smoke cannabis. It says ‘cannabis abuse reportedly started at 18 years of age and would consist of one gram daily but currently only recreational/social cannabis use reported’. That, I suggest, was said to the neuropsychologist prior to your brain tumour being removed.
The prosecutor objected. The following exchange then occurred:[36]
[36] T208.
HER HONOUR: [Counsel], what this witness is said by someone else to have said is not admissible in that form and it's not relevant. What is relevant is if you are saying 'Did you use cannabis at this time?'.
[Appellant’s counsel]: I think she said no.
HER HONOUR: The way you are going about this is entirely wrong. There is a thing called an Evidence Act.
[Appellant’s counsel]: Yes, I understand.
HER HONOUR: You are talking about a statement reduced to writing. If it is that you're cross-examining for a prior inconsistent statement, there is a way you go about it. That question did not comply with the requirements of the Evidence Act.
[Appellant’s counsel]: My understanding is that the witness has said that she ceased cannabis use much before 2010 when she had the brain operation. What I want to put to her is that on 26 February 2010 she said something that was contrary to what she said.
HER HONOUR: That's not what you asked her. You did not identify 'I suggest to you that on this date you spoke to so-and-so and you told them this'.
[Appellant’s counsel]: I'm sorry, that's what I thought I was doing. I was reading the passage from the document.
HER HONOUR: You might have read the passage, you didn't identify it. Here is the Evidence Act. You are required to identify the nature and circumstances if you are going to prove a prior inconsistent statement. Let's go back to the Evidence Act: 'If any witness upon cross-examination ... whether or not he has made the statement.' Now, that is the law. That is not what you have done. Do you want to reframe your question?
[Appellant’s counsel]: Yes, thank you.
It will have been observed that the initial objection articulated by the Judge was one which might be described as a hearsay objection. However, as counsel correctly observed, the point of her question was to put a prior statement which was inconsistent with JT’s testimony that her cannabis use had stopped in 2009, the year before her tumour was removed. The Judge then described the prior inconsistent statement as one “reduced to writing” which is an expression found in s 29 of the Evidence Act which provides:
29—Cross-examination as to previous statements in writing
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.
A number of matters should be noted about s 29 of the Evidence Act. First, the phrase “or reduced into writing” does not include a written record made by someone other than the witness unless the witness has, in some way, adopted the record.[37] Secondly, that provision does not limit what may be asked in cross-examination but instead requires that a witness be cross-examined in a particular way before a witness’ testimony can be contradicted by the writing. Section 29 of the Evidence Act requires that the writing be shown to the witness before he or she is contradicted by it.[38] Of course counsel should not identify an inadmissible document and its contents in the course of examining or cross-examining a witness, but the source of that rule is the fundamental prohibition against informing the tribunal of fact of inadmissible material.
[37] R v Walter (1993) 61 SASR 260, 263-264.
[38] Michael H McHugh QC, ‘Cross-Examination on Documents’, (1985) 1 ABR 51, 53.
In any event, it was not clear at that point whether counsel proposed to contradict the witness by tendering the medical notes as a business record, or by calling the doctor, or at all. Later in that passage, the Judge read s 28 of the Evidence Act to the appellant’s counsel. Section 28 of the Evidence Act allows proof of the making of a prior oral inconsistent statement. It provides:
28—Proof of contradictory statements of adverse witness
If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
It should again be observed that s 28 of the Evidence Act does not prohibit the asking of certain questions in cross-examination nor does it prescribe a particular form for questioning about prior inconsistent statements. It merely prescribes conditions on calling contradictory testimony. If the challenge to the appellant’s counsel’s question was raised at the point when she sought to call a witness to prove JT’s prior inconsistent statement about her cannabis use, different views might be taken as to whether the objection was well taken. For my part, I would have thought that identification of the occasion of a discussion with a neuropsychologist shortly prior to removal of JT’s brain tumour is sufficiently unique to fairly draw JT’s attention to the occasion of the alleged prior inconsistent statement. Be that as it may, JT was questioned again about that occasion by the appellant’s counsel shortly thereafter in this form:[39]
[39] T209-210.
QWhat I want to suggest to you is that on 26 February 2010 when you were at the Royal Adelaide Hospital speaking to a neuropsychologist by the name of Amy Foran you told her the following: ‘Cannabis abuse reportedly started 18 years of age and would consist of approximately 1 gram daily but currently only recreational/social cannabis use was reported’. Do you accept that you said that on that occasion.
AAgain, you’re saying that statement was made in February.
QYes.
AMy recreational use of cannabis ceased in 2009 when I met Jody, which was in September 2009. So that’s when my recreational use ceased. I was not smoking marijuana when they found my tumour or when I seen the neuro at the hospital. I hadn’t had any marijuana since mid to late 2009.
QSo if I can you in a moment to have a look at this document and see whether your maintain that, given what’s in here –
OBJECTION: MR HEFFERNAN OBJECTS.
MR HEFFERNAN: It’s not her document.
QUESTION DISALLOWED
HER HONOUR: You can’t prove it by shoving it in front of the witness and saying ‘Is that what the document says?’ If you are going to prove the inconsistency, if indeed you need to, you have to go about it a different way. Putting it in front of the witness doesn’t prove it.
I make a number of observations about that passage. First, the additional information identifying the occasion given by counsel in the first question in that passage was the date of 26 February 2010, the name of the psychologist and the location, namely the Royal Adelaide Hospital. It can be accepted that it would have been better if those additional particulars had been included when the prior inconsistent statement was first put. However, to my mind the additional detail does not add much. If JT had expressed some difficulty in recalling the occasion more detail could then have been given.
Secondly, a counsel may put an unidentified document to a witness and ask that witness whether they adhere to their testimony.[40] It is a nice question in this case whether the document placed before JT was identified. The clumsy way in which counsel had earlier put the prior inconsistent statement by reading out the note verbatim, including the words “reportedly” and “reported” would have suggested to the Judge that the document handed to the witness was a medical note of some form or another. However, the Judge would almost certainly have known that counsel was relying on medical notes, which had been brought before the Court by subpoena, well before the document was placed before JT. Counsel certainly did not identify the document as she was placing it before JT. On balance, the inference which could be drawn from the earlier questions that the appellant’s counsel was relying on medical notes of some kind did not identify the document actually produced to the witness. To hold otherwise would deny a cross-examination technique which is useful in many cases which come before courts in their civil and criminal jurisdictions in which a witness has made a prior inconsistent statement which is recorded in a business document. If counsel could not use the expedient of showing such a witness the document merely because an inference as to the nature of the document could be drawn from earlier questioning more cumbersome and time consuming forms of proof would often become necessary.
[40] Michael H McHugh QC ‘Cross-Examination on Documents’ (1985) 1 ABR 51, 53-56; R v Orton [1922] VLR 469; R v Bedington [1970] Qd R 353, 359-360; R v Sehan (1914) 11 CAR 13, 18; R v Gillespie& Simpson (1967) 51 Cr App R 172.
Either way the mere fact that the document was placed before JT plainly enough, as the prosecutor and the Judge observed, could not prove the contents of the document. Moreover, in the circumstances where the provenance of the note could be proved it was, at least prima facie, admissible as a business record in any event.
For reasons which are not clear to me, the prior inconsistent statement was never proved. Nonetheless, in my view, the Judge erred in law in stopping the appellant’s counsel from showing JT the document.
Despite the erroneous evidential rulings to which I have referred, I am not persuaded that a reasonable person would have apprehended from the interventions that I have described that the Judge had prejudged the factual issues in dispute before her or that she had in a general way adopted a favourable bias towards JT. Nor am I persuaded that the interventions gave any reason to conclude that the Judge’s capacity to objectively evaluate the evidence was compromised. The interventions are only indicative of a tendency to frankly and strongly disclose the matters weighing on the Judge’s mind. Even though the appellant has not appealed on the ground that the Judge had erred in law in her evidential rulings on the above matters, I also record my opinion that they have not occasioned a substantial miscarriage of justice.
Judicial behaviours and demeanours vary, sometimes widely. Depending on the particular circumstances of the trial, the witnesses and counsel concerned, it may sometimes be necessary for a Judge to make strongly worded observations about the course of the evidence and progress of the trial. The pressure of judicial work in modern times means that time wasting cannot be indulged. Of course, care must be taken when doing so. Patience and gravity of hearing remain an essential part of justice. Judges must continue to strive to achieve a judicial balance. Even though other Judges may not have taken the same approach as the Judge in this matter, the judicial scales remained sufficiently balanced.
Ground 3
Section 50 of the CLCA provides:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
…
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)In this section—
prescribed age, in relation to a child, means—
(a) in the case of a person who is in a position of authority in relation to the child—18 years;
(b) in any other case—17 years;
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
…
In R v M, BJ, Vanstone J said of the section:[41]
In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting. It is within s 50(1) that the actus reus of the offence is given. Section 50(4) is concerned, as I said, with the framing of a charge against the section and cannot derogate from s 50(1).
[41] (2011) 110 SASR 1, [70].
The Judge expressly accepted beyond reasonable doubt JT’s account of the sexual touchings by the accused but did not specify the particular acts of sexual exploitation on which she relied to find the offence proved. However, those acts were particularised in the first count of the Information on which the appellant was convicted. No complaint was made about that particularisation on appeal. The Judge set out the Information at the commencement of her reasons and expressly found the accused guilty as charged of the offence of persistent sexual exploitation of a child. A verdict of guilty for the offence charged by that count was recorded, in accordance with the usual practice of the District Court, on a document entitled “Record of Proceedings”.
This ground is not arguable.
I would refuse permission to appeal on this ground.
Ground 4 – verdict unreasonable and not supported
The appellant’s primary argument on this ground emphasised the improbability that the appellant sexually assaulted JT as frequently as she claimed in such close proximity to her siblings and her mother’s bedroom whilst her family lived in Lock. The Judge dealt with that submission as follows:[42]
Counsel for the accused pointed to a number of matters which should cause me to disbelieve or doubt JT’s evidence. The defence highlighted the unlikelihood of regular sexual assaults upon JT in a bedroom where her younger sisters were sleeping only a couple of metres away. It was pointed out that JT alleges that she remonstrated with the accused, that sometimes she called out for her mother and that her account of events in that regard is inherently unlikely. The defence submitted that some of the alleged offending at Lock was said to occur whilst JT’s mother was at Weight Watchers meetings. It was submitted that the evidence about that topic points the other way, namely that the accused was present in Cummins with JT’s mother during those meetings and there was no opportunity for the sexual assaults alleged by JT on those occasions.
I have carefully considered the arguments of the accused concerning the allegation of JT calling out, resisting the advances of the accused and the accused sexually assaulting JT in close proximity to her sleeping sisters. The accused points to the presence of JT’s mother in the house, the small sizes of the homes and argues that it is unlikely that the offending would have occurred in these circumstances. The accused submits that not only would an offender be unlikely to proceed in those circumstances but if he did, there is a lack of supporting evidence in that regard. I have also carefully considered all of the arguments put to me about JT’s reliability and credibility.
The allegations in this case date back to when JT was about 7 years old. JT is now in her 50s. JT’s evidence is to the effect that she strongly and vociferously resisted sexual advances and sexual touching by the accused. I observe that JT’s claimed resistance is not necessarily a natural reaction by a child to this type of sexual abuse. Very often a victim of sexual abuse is corrupted, confused, flattered and made to feel special by the touchings and additional attention. A child may remain compliant with the wishes of the offender. Children may remain silent or not complain about prolonged sexual abuse. It is well known that many victims of child sexual abuse feel deep shame and self-loathing; they try to distance themselves from any perception of enjoyment or compliance. I also observe that child sexual abuse in a familial setting is often perpetrated in close proximity of a parent or siblings. Sometimes members of a family know of, or suspect, the abuse and do nothing.
I doubt JT’s evidence that she actively, loudly resisted the sexual advances. I do not suggest that she was complicit in this conduct, but I am not sure about her asserted memory of active resistance. I have carefully considered whether in those circumstances I can rely on her evidence to the requisite standard. I am satisfied that JT is otherwise a truthful and reliable witness and these criticisms of her evidence do not cause me to doubt her evidence as to the important allegations.
[42] R v T, WA [2013] SADC 120, [154]-[157].
The finding of the Judge that JT was mistaken about the vehemence with which she resisted the appellant was one which was open to her. It is not at all surprising that an adult recalling a course of protracted and prolonged abuse, committed decades earlier when she was a child, will by reason of a failing of memory, or from other psychological causes, come to be mistaken about such a matter. The Judge specifically turned her mind to whether a mistake of that nature was such as to leave a doubt in her mind about the offences themselves. Having done so, the Judge remained satisfied that JT was, otherwise, a truthful and reliable witness and that that JT’s mistaken evidence on that issue did not cause her to doubt JT’s evidence of the allegations themselves.
On the face of the transcript, I would reach the same conclusion reached by the Judge. Even if I were moved to doubt JT’s testimony on the face of the transcript, the advantage of the Judge in evaluating JT’s oral testimony is inestimable.
The appellant also relied on the following matters.
First, the inherent implausibility that the offending would persist over more than a decade without intervention by JT’s mother. Unfortunately, that is all too often a feature of cases of this kind. There are a variety of reasons for that failing. The weight of that circumstance can only be assessed in the context of the evaluation of the oral testimony of JT and the appellant. The Judge’s obvious advantage in that respect is plainly capable of dispelling any doubt arising from that circumstance.
Counsel also relied on the evidence given by the appellant and SS that JT’s mother was always accompanied by the appellant when she attended at Weight Watchers. The assessment of the conflicting evidence of the appellant and JT on that question was again a matter in which the Judge enjoyed a great advantage. The Judge adequately warned herself about the forensic disadvantage faced by the appellant before reaching her conclusion preferring JT’s evidence to that of the appellant’s.
Under this ground the appellant also complained of aspects of the Judge’s reasoning. The grounds do not go to the unreasonableness of the verdict but are instead more properly considered under the miscarriage ground; if made good, they would have resulted in an order for a retrial, not an acquittal. The appellant complained that the Judge was wrong to treat the evidence of the witness SS of the occasion on which she heard JT telling the appellant “Don’t fucking touch me” as offering some support for JT’s testimony. True it is that SS was not able to say anything about the surrounding circumstances which prompted that outburst. However, a reaction of that kind is consistent with JT suffering the abuse she described. It was therefore probative and it was a matter for the Judge to accord it such weight as she saw fit.
The appellant also complained that the Judge preferred the evidence of VR about the contact between JT and the appellant in the time that she lived with JT. That evidence had been made relevant by the cross-examination of JT to suggest that she had maintained a good relationship with the appellant after she had left home. There was a conflict between the appellant on the one hand, and JT and VR on the other on that issue. It was a matter for the Judge to assess the conflicting testimony. She preferred VR’s evidence to that of the appellant. The Judge made no error in doing so.
Conclusion
I would dismiss the appeal on grounds 1, 2 and 4. I would refuse permission to appeal on ground 3.
VANSTONE J: I have had the advantage of reading the reasons of the Chief Justice in draft. With one slight qualification I agree with his Honour’s reasons. I would also add the following comment.
In relation to judicial interventions as a whole I think it should be stressed – as Kirby J did in Galea v Galea (1990) 19 NSWLR 263 – that interventions are becoming more common. They are often called for by inadequacies in the presentation of cases. These days we are accustomed to seeing more junior practitioners take on matters of complexity and importance. Moreover, many more parties are unrepresented. It may be that the standard of advocacy in an overall sense has declined. As well, there is a recognition that the length of trials has increased with the passage of years and that the cost of maintaining what might be called a “Rolls Royce justice system” is becoming greater.
Speaking generally, interventions very often assist in clarifying issues, in minimising wastage of time, and in assisting witnesses to comprehend the task they face and to do themselves justice. They also play an important role in assisting practitioners to improve their forensic skills. However, as is demonstrated in the Chief Justice’s reasons, there are risks associated with too readily interrupting. In the dynamic situation of a trial it is not always easy for a judicial officer to adjudge the effects of his or her interventions and the impressions that they may engender.
In relation to the production to JT of the hospital record said to contain a previous inconsistent statement about cannabis use, I disagree with the Chief Justice that the judge was wrong to stop counsel at the point of producing the document to the witness. While I agree with the Chief Justice that counsel was entitled to place the document in front of the witness and ask her whether she adhered to her present testimony, counsel was not entitled to give evidence of the document by using the words “… and see whether you maintain that, given what’s in here …”. I note that, because of the objection, the final words of counsel’s question may have been lost to the transcriber. But in any event, plainly counsel was attempting to pit the witness’s stance on the issue against what was said to be in the document. That is not permissible. Consequently I do not agree that the judge erred in stopping the appellant’s counsel from showing JT the document. The manner in which counsel was proceeding was incorrect.
With that very minor reservation I agree with the reasons of the Chief Justice and I agree with the orders he proposes.
ANDERSON J. I agree that the appeal should be dismissed. I agree generally with the reasons of the Chief Justice.
20
19
1