R v Z W
[2006] VSCA 256
•1 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 194 of 2005
| THE QUEEN |
| v. |
| Z.W. |
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JUDGES: | VINCENT, EAMES & REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 October 2006 | |
DATE OF JUDGMENT: | 1 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 256 | |
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Criminal Law – Conviction – Indecent assault – Gross indecency – Committing an indecent act with a child under the age of 16 years – Offences committed against applicant’s two daughters and the daughter of his de facto – Whether applicant’s trial prejudiced by trial judge’s failure to sever counts relating to each victim – Cross-admissibility of evidence – Voluntariness – Cross-examination of applicant’s failure to call certain witnesses – Whether trial judge erred in failing to direct the jury that they should not speculate about what a person not called by the applicant might have said – Failure of applicant’s counsel to put various matters to the prosecution witness – Miscarriage of justice – Whether trial judge erred in failing to exclude the covert tape recorded interview between the applicant and complainant – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms A. Cannon Solicitor for Public Prosecutions |
| For the Applicant | Ms F.L. Dalziel | Victoria Legal Aid |
VINCENT, J.A.:
The applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne, on 12 May 2005, on four counts of indecent assault (counts 1, 2, 4 and 5); one count of gross indecency (count 3) and three counts of committing an indecent act with a child under the age of 16 years (counts 6, 7 and 8).
At the trial the prosecution contended that between 9 April 1981 and 31 December 1997, the applicant committed a number of sexual offences against his two daughters (identified here as JW and SW - counts 1 to 5) and his defacto partner’s daughter (identified here as EK - counts 6 to 8). He was at the time of the commission of the alleged offences aged between 32 and 49 years.
After hearing a plea in mitigation of penalty, the sentencing judge, on 15 June 2005, imposed:
On count 1 - 15 months’ imprisonment;
On count 2 - nine months’ imprisonment;
On count 3 - six months’ imprisonment;
On count 4 - 18 months’ imprisonment;
On count 5 - two years’ imprisonment;
On count 6 - 18 months’ imprisonment;
On count 7 - 18 months’ imprisonment; and
On count 8 - 18 months’ imprisonment.His Honour ordered that six months of the sentence imposed on each of counts 1, 4, 6 and 7 be served cumulatively upon that imposed on count 5 and upon each other. This created a total effective sentence of four years’ imprisonment, in respect of which a non-parole period of two years and six months was fixed.[1][1]The sentencing judge further declared that the applicant was sentenced as a serious sexual offender pursuant to s.6F of the Sentencing Act 1991 and also directed that, pursuant to s.50 of the Sex Offenders Registration Act 2004, the applicant had been served with a notice setting out the reporting obligations imposed by law.
The Grounds
The application is based upon the grounds set out in the applicant’s Full Statement of Grounds[2] that:
[2]Grounds 2, 4, 5, 7 and 8 were not pursued and need not be addressed.
1. The learned trial judge erred in failing to sever from the presentment counts 3, 4 and 5, in respect of which the complainant was [JW].
…
3. The learned trial judge erred:
(a) in not turning his mind to the issue as to whether there was a proper basis for leaving the question of voluntariness, by reason of sleep, to the jury; and
(b) failing to direct the jury as to the obligation upon the prosecution to prove that the acts of the [applicant] were conscious and voluntary.
…
6. In circumstances where the learned prosecutor cross-examined the [applicant] as to his failure to call certain witness the learned trial judge erred in failing to direct the jury that they should not speculate about what a person not called as a witness by the [applicant] might have said.
…
9. The learned trial judge erred in failing to direct the jury as the use they could make of the failure of the [applicant] to put various matters to the prosecution witnesses.
10. A miscarriage of justice arose by reason of an aggregate of errors.
11. The learned trial judge erred at law and/or in the exercise of his discretion in failing to exclude the tape recorded interview between the applicant and the complainant [JW].
The Background
JW gave evidence that the applicant was her father and that she was 35 years of age, having been born on 19 August 1969. She has a younger brother, RW aged 33, a younger sister, SW aged 30, and a half-sister, BK. BK’s biological father is the applicant and she was born to RK, who had another daughter, EK. She stated that she was not close to the K family but became closer as BK grew up.
She stated that she attended the home of RK at her request in February 2004. RK showed her a document,[3] which contained a list of names, including that of her sister, SW. Her own name was on the list with the word “touched” next to it. She assumed that this entry referred to an incident that she said took place in her parent’s bedroom at their residence in Flemington when she was 13 or 14 years of age.
[3]Exhibit A.
According to JW, when she was aged 12 or 13 her parents separated for a time and she moved, along with her mother and siblings, to premises in Flemington. The applicant joined them some time later. On the occasion to which she understood the note referred, she was seated on the applicant’s bed with the door closed and no one else present at home. He asked her whether she had “seen a man’s penis” to which she replied that she had not. He unzipped his pants, took out his penis and proceeded to masturbate until he ejaculated (count 3).
The applicant then directed her to lay down on the bed. She complied and he rubbed her stomach in a circular motion, telling her that a “boy” would do something similar to her and that it would make her feel “tingly”. He told her that “a boy” would probably move his hand down. He asked her if she was “ok” (to which she nodded her head) and he then proceeded to rub her clitoris. He instructed her part her legs before digitally penetrating her on two occasions whilst breathing heavily (count 4). She was scared, but did not say anything to the applicant during this incident. JW stated that the applicant was quite severe in handing out punishments and had a short temper. He instructed told her not to “tell anyone about this, especially your mum, because people won’t understand”.
JW also gave evidence of uncharged acts, which included the allegations that the applicant would watch her through the crack of her bedroom door, cuddle her in an inappropriate manner (brushing up against her breasts) and walk into the bathroom whilst she was having a bath. During cross-examination she stated that these acts occurred when she was older than five or six years of age, at their previous residence in Dallas.
She stated that, after discussing the list of names with RK, they made copies of the document and left the original with a note to the applicant. Shortly afterwards however she retrieved the original and left a photocopy in its stead. JW went to the police on the following day and reported that she had been abused and the finding of the list. They suggested that she wear a concealed tape-recorder and speak with the applicant as they wanted to ascertain whether she was telling the truth.
On Friday, 27 February 2004, JW attended the applicant’s home fitted with a tape-recorder. She did not specifically raise the allegations of touching but said that the applicant had apologised generally to her for his actions, stating he had intended to conduct what he called a “sex education lesson” and that he had approached it in the wrong fashion. He informed her that he was aware of allegations that he had “touched” SW and EK, but he did not provide her with any details. She did not ask him any questions concerning them, as her intention was to secure confirmation of her own allegations.
Following this conversation she returned to the police station, but was advised that the recorder had not operated and they suggested that she make a further attempt on the following day. She agreed to do so and went to the applicant’s home on Saturday 28 February in company with RK.[4] She then had a further conversation with the applicant.[5] Again she did not specifically raise the allegations of touching and the applicant again apologized for his actions stating that “it was a sex education lesson” that he had approached in the wrong fashion.
[4]RK was unaware that she had the tape-recorder in her possession.
[5]Exhibit B.
About a week later, JW telephoned SW and told her that SW’s name (and that of EK) were on the applicant’s list and that she had complained to police.[6] She did not inform SW of the details of her allegations or ask her any questions concerning the presence of her name.[7] However, SW said that she also would lodge a complaint with the police. JW also stated that she had not discussed with EK the details of the allegations EK made against the applicant.
[6]During cross-examination, she conceded that the main reason she went to the police was to force the applicant to receive psychiatric help.
[7]JW stated earlier in her evidence that she had not had any discussions with SW in respect of sexual contact between the applicant and her and SW prior to this phone call.
SW stated that she was 30 years of age, having been born on 9 April 1975. She moved with her family to Flemington when she was about six or seven years of age and to South Australia when she was about nine.
On an occasion when she was six, seven, or perhaps eight years of age, whilst living in Flemington, she stayed home from school as she was ill. She laid down in her parent’s bed and the applicant subsequently got into bed with her. He placed his hand inside her underwear and rubbed her clitoris (count 1). This caused her discomfort so she moved away. He then took her left hand and placed it with his hand on his penis and proceeded to move it up and down (count 2). SW was scared and uncomfortable, but did not say anything. She later left the bedroom when she thought he had fallen asleep. She could not recall whether her brother or mother were home at this time.
SW next saw the applicant a few days after the incident.[8] He told her that what had happened “the other day” was their “little secret”. She did not mention the incident to anyone until the conversation with JW in February 2004 due to embarrassment and fear of the possible repercussions. The decision to make a statement to police was her own, although they made the initial contact with her. During cross-examination, she stated that it was only when JW telephoned her, that she was informed that her (SW’s) name was on the applicant’s list. She denied the suggestion that she made a complaint to police simply to support JW.
[8]He was working shift-work at the time.
SW also gave evidence of uncharged acts, which consisted of the applicant looking at her through cracks in doors and making comments such as, “it doesn’t matter what you do, you can always go and stand on a corner to earn a living”. This conduct took place after the incident in question.
EK said that she was 19 years of age, having been born on 11 August 1985. She stated that the applicant commenced a relationship with her mother, RK, when she was nine or 10 years of age. Her sister BK is 10 years of age and is the biological daughter of the applicant and her mother.
She described uncharged acts, including an occasion on which the applicant told EK that he was going to lay down and asked her if she wanted to have a sleep as well. Whilst on the bed, he rubbed her arm and her inner thigh, making her feel uncomfortable. This occurred prior to 1995 and at a time when her mother was at work. When she was 14 or 15 years of age, the applicant made a number of offers, which she refused, to photograph her whilst naked, “in a stylish manner”, in exchange for money. At that time she was considering a career in modelling.
EK gave evidence of an incident that took place when she was 10 or 11 years old when the family visited the applicant’s mother in Ballarat. She stated that they went to sleep, lying side-by-side, on the floor in the lounge room of the house. She was positioned with the applicant beside her, RK next to him and BK next to RK. EK awoke to find the applicant rubbing her arm. He then put his hand through the sleeve hole of her singlet and rubbed her breast (count 6). The applicant placed his hand down her pants and “played around” with the outside of her vagina (count 7). He stopped, took her right hand and placed it around his penis. He then put his hand around hers and pulled her hand up and down. He did this for a few minutes (count 8). She subsequently got up and washed her hands in the bathroom. Although it was dark, EK could see the applicant’s outline and was sure that he was the person touching her.
A few weeks after this event, EK told a friend, T, that the applicant had touched her. Shortly afterwards, her mother became aware of the incident and spoke with the applicant on the telephone in her presence. EK also spoke with him and he told her not to tell anybody what had taken place, because she would not be believed. During cross-examination, she stated that she could not recall the applicant telling her in this conversation that he must have been asleep and apologizing if he had done anything. However, she accepted that, when her mother finished speaking to the applicant, she told EK that he had said that he believed that he must have been asleep at the time and had mistaken EK for her mother. EK stated that she did not accept this explanation, but did not challenge it. The subject was not discussed again and the applicant continued to see her mother, ultimately moving into their home. Prior to February 2004, she had not spoken with JW or SW about what had happened.
T gave evidence that, whilst in grade 4 or 5 at Primary School, EK who appeared to be upset at the time, told her in confidence that the applicant had touched her in a sexual manner. EK requested her not to tell anyone about this incident.
RK stated that she commenced a relationship with the applicant in 1994, when EK was nine years of age. During the early phase of her relationship with him, he worked as a forklift driver during the day and a security guard at night. RK was employed prior to the birth of BK in 1995 and, at times, the applicant babysat EK during this period. In 1997, she moved to Dallas with the children and was subsequently informed by a neighbour, that EK had informed her of the incident involving the applicant and EK in Ballarat.[9]
[9]RK stated that they had stayed with the applicant’s mother in Ballarat two weeks prior to this day in 1997.
A couple of days after learning of the allegation RK spoke with the applicant on the telephone. She told him that EK had said that the applicant had touched her. He responded that he could not remember any such incident and must have been asleep at the time. She passed the phone to EK and heard him give the same explanation to her. She stated that there was an occasion, approximately two to three years after this incident, on which she had made love with the applicant when he appeared to be asleep and he told her on the following day that he had no memory of it happening. She stated that their relationship was “generally pretty good”, although he could become angry on occasions and was quite controlling in his demeanour.
RK stated that, approximately three to four years beforehand, the applicant expressed a wish to photograph EK whilst naked, in a “tasteful” manner. Although she told the applicant that she did not think that this was a good idea, he asked EK a number of times and she refused. She stated that EK had wanted to do some modelling but the applicant’s offer was not related to the preparation of a portfolio for this purpose.
In February 2004, RK had locked her keys in the garage and looked in the applicant’s briefcase for a spare set. She came upon a number of documents, including one that contained a list of names.[10] She contacted JW and the police subsequently became involved. She also located a bundle of the applicant’s documents in the garage, consisting of pornographic magazines and a number of documents containing a list of names, including those of the three complainants.[11] A diary entry of the applicant for Monday 30 June detailing the allegation by EK was also found.[12] She stated that, to her knowledge, the applicant had no problem with his memory.
[10]Exhibit A.
[11]Exhibit C.
[12]Exhibit D.
FW gave evidence that she had been married to the applicant since 1968 or 1969. She had difficulties with her memory following a stroke. She had also been on medication for 10 years for the treatment of schizophrenia. She separated from him whilst living in Dallas and moved to Flemington, but they subsequently resumed cohabitation. During the period that they were living at Flemington, the applicant was a prison officer and did shift work. She later moved to Adelaide with the family, although JW remained in Victoria and resided with the applicant’s mother. She had separated from the applicant a number of times over the years. FW described the applicant as having a bad temper and at times he had appeared as if he wanted to hit her, although he never did.
FW told of an occasion on which, hearing JW whimpering, she went into her (FW’s) bedroom and observed her daughter on the bed with her legs hanging over the edge and the applicant attempting to force himself on her. She confronted the applicant, and JW ran out of the room The applicant explained that he was “just trying to teach her a few things”. This led to a number of arguments between them and he eventually moved out. She subsequently accepted him back into the home as he had told her that he had changed. She stated that this incident took place whilst JW was in her early teens, but she did not discuss it with her. The applicant had always been in the habit of making lists but, as far as she was aware he had only had problems with his memory on two occasions, on each of which he told her that he could not remember having sex with her on the previous evening. During re-examination she stated that these two occasions took place when they were living in Adelaide, after she observed the incident between the applicant and JW.
Detective Jason O’Connell gave evidence that upon JW’s initial complaint, his superior officer asked JW whether she would be prepared to take part in a covert tape recorded conversation with the applicant.
Upon viewing the applicant’s list,[13] Detective O’Connell observed the two other names (EK and SW). He asked JW to contact SW to find out if she wanted to speak with them. JW subsequently gave him SW’s details and informed him that she would talk to them. He subsequently contacted SW.
[13]Exhibit A.
Detective O’Connell also produced two of the applicant’s diary entries of June 1997 in which reference is made to EK.[14]
[14]Exhibit F.
Interviews
On 30 March 2004 the applicant was interviewed in relation to the allegations by JW and EK.
Concerning those made by JW he stated that:
· He did not specifically recall the incident about which she complained, but he did recall giving her a “education” lesson when she was about 15 years of age.
· He understood their conversations on Friday 27 February and Saturday 29 February 2004 to have related to this lesson, but did not recall any suggestion that he had touched JW inappropriately.
· It was possible that he inserted his finger into her vagina during the lesson but he could not remember whether he had done so.
· Although he had no recollection of it happening, it was possible that he may have exposed his penis to JW and masturbated to the point of ejaculation during the lesson.
· He did not know whether he actually touched JW whilst she was nude or through her clothes whilst giving her a sex education talk.
· He recalled having conversations with JW on Friday 27 February and Saturday 28 February 2004 but could not recall the details or the content of them as he had been distressed since his daughter (BK) had been removed from the home. He later stated that he would have made a “pact with the devil” to get her back.
In response to the allegations by EK, the applicant stated that:
· He recalled staying in Ballarat and sleeping on the lounge room floor with RW, EK and BK. He could not recall any contact with EK, but on the following day he had a feeling that he may have touched EK during the night and told RW. RW confirmed that he had touched EK. EK would have been approximately 10 years of age at that time.
· He had previously unknowingly made advances to RW whilst he was asleep. Similarly he had previously unknowingly had sex with his ex-wife FW whilst he was asleep.
· He had also given EK an education talk about the penetration of a vagina.
With respect to the allegations by SW, the applicant stated that:
· His ex-wife or JW told him that he had touched SW or made her touch him. He initially stated that he was told of this allegation “within the last six weeks” but later stated that he could not remember when he was informed of it. He did not remember the alleged incident.
Concerning the list of names, he stated that:
· It was not a “brag list” but merely an attempt to “figure out what the hell is going on”.
· Some of what was contained within the list was true, but some entries referred to sexual fantasies.
· The list contained on one side the names of previous partners, as he was attempting to understand why he had been involved in so many relationships. The names on the other side (JW, SW, EK etc) were listed, as he had been informed of allegations that he had touched or “done something” to them.[15]
[15]The list was prepared, the applicant conceded, prior to the recorded interview and at a stage before the allegations had been made. However, the applicant stated that someone may have mentioned them to him.
· He could not recall why he had a tick next to JW’s name, when there was a question mark next to those of SW and EK.
· He had only fantasised about having sex with the other persons whose names were on the list.
· He made the lists because his memory was not good.[16]
· The word “mastu” next to the complainant’s names referred to masturbation. He stated that he had masturbated whilst thinking of them but that he had not masturbated them.
· It was possible that a number of the allegations were true but he did not remember performing the specific acts.
[16]Exhibit C.
On 15 April 2004, the applicant was interviewed in respect of allegations by SW (counts 1 and 2). He stated that:
· He did not remember an incident in which that he played with SW’s clitoris and vagina, nor placing her hand on his penis and making her masturbate him. Similarly, he did not remember telling her a couple of days later that what had occurred was their secret.
With regard to the list,[17] he stated that:
[17]Exhibit A.
· The word “touched” next to the complainants’ names was included as he intended to check whether he had done anything, asserting that it was not a record of what he had actually done.
· The document entitled “my personal experiences with sex are as follows”,[18] included both actual experiences and acts that he had been alleged to have committed.
[18]Exhibit C.
· Both lists were a mix of fantasy and reality, but he was unable to distinguish between the two.
· He did not recall an incident in which FW interrupted him whilst he was holding JW down on the bed, but conceded that it was possible.
· He recalled telling EK that he was prepared to take photographs of her (from nude to fully dressed) to assist in compiling a portfolio for modelling, but she had declined.
Defence Case
The applicant gave evidence that he had no knowledge of the incident involving SW (counts 1 and 2). He had previously been informed of an allegation involving her but, until he was interviewed by the police, was not aware of the specific details. He could not remember having a conversation with SW, saying that what had taken place was their “little secret”.
With respect to the allegations, (the subjects of counts 3, 4 and 5), he remembered having a conversation with JW about sex, but did not have a clear recollection of what was said. He stated concerning the conversations with JW on Friday 27 April and Saturday 28 April 2004, that he had previously not been aware of the detail of the allegations. He did not have a clear recollection of what was said in those conversations, but he did not lie to JW during them. He maintained that he could not recall the details of the allegations, nor telling JW not to tell her mother. He explained that at the time of his conversations with JW (27 and 28 April) he was aware that they were discussing the same occasion (the education lesson). He stated that JW had asked him for such a lesson and that he had two witnesses that could verify this. However, he accepted that this claim was not put to JW when she was giving evidence and stated that he would not be calling the persons to whom he referred to give evidence as there was some uncertainty as to whether the occasion about which they could give evidence was the one about which the complaint was made. He was cross-examined extensively about comments to police and JW which, the prosecutor contended, constituted admissions and maintained that they did not relate to his recollection of what had taken place, but reflected what he had been told by numerous people of his purported wrongdoing (eg, when his tape recorded comment to JW that “he was sorry it’s fucked your life up” was put to him, he explained that he was apologising if he had caused her distress, but not for digitally penetrating her).
With regard to the allegations, (the subjects of counts 6, 7 and 8), he stated that within a short period of this alleged incident he had spoken with EK and RK and apologised that if he did “touch her it wasn’t meant to be that way, but I didn’t have any memory of it”. During cross-examination he conceded that his diary entry of 30 June 1997[19] recorded that RK had telephoned him. He admitted that his diary entry of 14 June 1997[20] mentioned EK posing for photographs and maintained that EK was considering modelling at this time (aged 11). He maintained that his offer to take photographs related to the compilation of a portfolio for modelling.
[19]Exhibit D.
[20]Exhibit F.
The applicant stated that he was in the habit of making lists due to his time as a clerk in the army.
The applicant adopted his answers given in the record of interview with the police. The applicant was cross-examined about his claim to have had sexual intercourse with FW and RK and his inability to recall that it had taken place on the following day. He could not remember whether the occasion with FW occurred after the alleged incident involving JW. However, he maintained (contrary to the evidence of RK) that the occasion involving intercourse with her occurred prior to the alleged incident with EK. He was cross-examined as to why RK was not challenged on this aspect of her evidence. He was asked whether any medical evidence would be advanced to support his explanation of involuntary actions whilst asleep and lack of memory. He responded that a psychiatrist had told him that it was possible.
The Grounds
Ground 1
The argument advanced in support of this ground was that, although the tape recorded conversation between the applicant and JW contained no admissions with respect to SW or EK, it must by reason of the “apparent admissions” made concerning JW have carried considerable prejudicial impact when the jury was addressing the question whether the allegations made by them were true. Accordingly, in the circumstances of a proceeding involving all three complainants, the fair trial of the applicant on the counts relating to SW and EK was seriously prejudiced, it was asserted. I do not agree. Although the particular argument presented in this Court was not put directly to the trial judge, there was at the commencement of the trial an application for the severance of the counts relating to each of the complainants. The contentions, which were set out in his Honour’s ruling, were –
“ … that the offences alleged against each complainant were isolated acts or instances. There is no course of conduct or pattern of molestation, rather separate events or instances in respect of each complainant. …[T]here was no connecting link or significant similarity of conduct or underlying unity in relation to the three groups of counts in respect of each complainant that would justify hearing such cases together.
… that hearing all counts in one trial will be highly prejudicial to the accused. It will be difficult for a jury to consider each count separately and to only have regard to the admissible evidence in respect of each count. Therefore there is great prejudice to the accused in hearing all matters together which could not be overcome by appropriate directions.
… The accused has no memory of committing any of these offences; if he did touch SW or EK in the manner alleged it must have been while he was asleep.
… the manner in which these matters were reported suggested a contamination of the complaints or that each complainant made a false complaint to buttress the allegations of the other complainants.”[21]
[21]T71-72.
His Honour, in rejecting the application, addressed each of these contentions, referring to relevant provisions in the Crimes Act 1958 and a number of authorities bearing on the matter.[22] He stated that –
“I am satisfied that there is no evidence before me of collusion or collaboration between any of the complainants.”[23]
and concluded that any prejudice to the applicant could be overcome by appropriate directions.
[22]R. v. TJB [1998] 4 V.R. 621; R. v. KRA [1999] 2 V.R. 708; R. v. D [1999] VSCA 148; R. v. Gae (2000) 1 V.R. 198; R.v. Papamitrou (2004) 7 V.R. 375; R. v. Rajakaruna (2004) 8 V.R. 340; and R. v. Buckley (2004) 10 V.R. 215.
[23]T74.
In this Court, it was accepted that a deal of the evidence was cross-admissible and no complaint was made with respect to the actual instructions given to the jury on the relevant aspects. The counts were properly joined and there was nothing in the circumstances or the evidence which necessitated the conduct of separate trials in this case. His Honour recognized that the provision of careful instruction to address the potential prejudice that could arise when the allegations of the three complainants were heard together was required and he fulfilled his obligations in this regard.
Ground 3
There is no substance to this ground, which raises the contention that, as the applicant had claimed that if he had sexually interfered with SW or EK it must have happened when he was asleep, the jury should have been directly referred to this possibility by the trial judge in his instructions on the burden and standard of proof. It is the case, as counsel for the applicant in this Court submitted, that the trial judge did not refer specifically to the applicant’s response to the allegations, namely that he must have been asleep at the time, when addressing the requirement that the prosecution had to establish that the conduct of the applicant had to be conscious and voluntary. However he did emphasize that the acts alleged had to be performed “wilfully”, that he “must have intended to commit the indecent act” which had to be “deliberate” or “reckless” and was “not an accident”. He told the jury that they had to consider the “state of mind” of the applicant and needed to be satisfied beyond reasonable doubt that he had performed the relevant “indecent act wilfully” before he could be found guilty of its commission. The possibility that the jury may not have appreciated that a person who was asleep at the time that an act was performed could not be described as having acted wilfully, deliberately or consciously needs only to be stated to invite instant rejection. In any event this would certainly be the situation in a case in which the defence raised was that, if the jury accepted that the applicant acted as alleged, he could not be held criminally responsible as they could not be satisfied beyond reasonable doubt that he was awake at the time and aware of what he was doing.
Ground 6
In the course of cross-examining the applicant, the prosecutor played part of the tape recording of the conversation between JW and the applicant. The following exchange then took place –
“That’s what you said to your daughter on the Saturday. ‘I remember that far back, I remember what took place, I also remember my motives. I don’t remember your reactions, right. You weren’t happy about it I know that.’?---Correct.
That’s the true (sic) isn’t it?---Yes, it is.
That’s a bit different to what you told the police isn’t it?---No.
‘I don’t remember what happened.’?---No, I didn’t say that to the police, I said I remember that far back, I didn’t remember the same details.
Yes, well, the details that you forget are her allegations that, firstly, you masturbated in front of her?---Correct.
Her allegations that you touched her on the vagina?---Correct.
And her allegation that you digitally penetrated her?---Correct.
So when it comes to the difficult stuff, I’d suggest to you, that’s when your memory phases out?---I wouldn’t say it phases out, but I can’t remember doing it, so---
But you can remember all the peripheral detail?---I can remember she asked me to have a conversation with her about sex.
Did she?---Yes, she did.
When did she do that?---In the loungeroom of my house and I have two witnesses to that point, but I can’t prove that that’s the same.
They’re coming, are they?---No, they’re not coming, but if you need them they can be contacted, I have put a list down saying that they can be contacted, and I’ve actually spoken to those two witnesses.
Just tell us what you remember, if they’re going to come, they can tell us?---The only part I can remember is that [JW] requested a conversation with me on the art of sex. I can remember having that conversation with her, I can’t---
You’ve been in court for the entirety of the evidence obviously?---Yes.
Did you ever hear your counsel say to her, ‘You asked your dad to have a sex education talk with you’?---No.
No, no. But that’s what you’re saying?---That’s right.
It’s not something you’ve just made up now in the witness box, is it?---No ma’am, you can go out and ring up my son right now and ask him what I say to you.
You understand, [sir], if there’s a matter you need put to a witness or something the witness says is wrong, you can indicate to your counsel, or your counsel’s solicitor?---Yes.
That you need to tell then something?---I’ve done that.
You’ve done that a few times?---Yes.
No time did you wave down and say, well, you better ask her – remind her that she asked me to have a sex education talk with her?---That’s correct.
Because I suggest to you it’s something you’ve made up right now in the witness box?---You may suggest what you wish, ma’am.”[24]
[24]T323-325.
A little later, the prosecutor asked the applicant whether he had sought to secure any expert opinion concerning the possibility that an individual could engage in the activity of the kind alleged whilst asleep. The applicant responded “I’ve got a psychiatrist that (sic) says it’s possible” but that no one had informed him that this person would be needed. He was further challenged concerning what was clearly presented by the prosecutor as a “convenient” memory; that is one that permitted the claimed recall of matters that operated to his advantage but did not encompass those that did not. When the credibility of the applicant’s evidence that he was only involved in giving JW a sex education lesson was called into question by the prosecutor, he asserted that there were two witnesses who could support his version, although they were unable to identify the occasion. The prosecutor pursued this matter, putting to him that this was a recent invention “made up right now in the witness box.”
Two complaints are advanced under this ground; first, that the trial judge should have directed the jury that they should not speculate on what the possible witnesses to whom the applicant referred might have said, if called; and secondly, that, in any event, the questions were based upon “the erroneous assumption that the applicant, rather than the Crown, bore the onus on the issue of “conscious and voluntary act.” It was acknowledged that counsel appearing for the applicant at the trial did not object to the questions or seek any such jury direction but, the argument proceeded, this failure was not fatal where the error complained of went to the root of the proceeding.
It is, I think, clear enough that, in these passages, the prosecutor was concerned to emphasize what she was contending was the inherent implausibility of the applicant’s versions. The applicant asserted that JW had misinterpreted his actions when giving her a sex education lesson and unresponsively volunteered that he had two witnesses to whom he had personally spoken who could support his claim. Unsurprisingly against that background, the prosecutor enquired as to whether either of them would be called. The applicant indicated that they may not have been able to identify the occasion and the prosecutor concluded her cross-examination, which was clearly directed to his credit, by putting to him that he was making up his evidence as he went along. It was not suggested in her final address that a Jones v. Dunkel[25] point could be made or that the applicant was under any onus whatever to adduce evidence.
[25](1959) 101 C.L.R. 298.
Similarly the prosecutor challenged the applicant’s veracity with respect to his claim that he may possibly have sexually interfered with one or both of the other complainants whilst asleep. She put to him the allegation, which he denied that –
“ … this excuse about ‘I was asleep’ is something you’ve come up with when [RK] has rung you and said ‘What have you done?’ or ‘You’ve sexually interfered with my daughter’ words to those effects?”[26]
[26]T350.
She directed attention to what she was contending was the inherent implausibility of this claim in the circumstances, querying whether it was even possible for it to be true. In the course of so doing, she asked whether the applicant has sought to secure any expert opinion and he responded that a psychiatrist he had consulted had informed him that it was. Again no Jones v. Dunkel point was made in the course of the prosecutor’s final address and understandably no direction on this aspect was sought by his counsel. In any event, it is difficult to see how any direction would have operated to his advantage or do more than reinforce the criticisms made by the prosecutor of his credibility.
Ground 9
In the written submissions filed on behalf of the applicant it is pointed out that –
“On five different occasions the prosecutor, during her cross-examination of the applicant, commented upon and challenged the applicant as to the failure by his counsel to put matters given in evidence by the applicant to other witnesses.
T324 - Whether [JW] asked for sex education talk.
T331- That it was not put to [JW] that he didn’t touch her breasts when hugging her.
T332- That [JW] was not challenged as to her allegation that he told her not to tell anyone of the sex education class.
T342-3 -That it was not put to [SW] that the conversation which she alleged took place in the car did not happen
T351- That it was not put to [RK] that the timing of the episode in which he says she told him that they had sex whilst asleep was before the [EK] complaint. Also questioned as to whether he knew he could alert his barrister if a witness said something he disagreed with.
Further, in the course of her closing address the learned prosecutor made adverse comments regarding the failure of the applicant’s counsel to put issues to witnesses and suggested that the reason for this was recent invention on the part of the applicant.
T378- That the warning not to tell given to each girl was unchallenged.
T383- That his evidence about when he had the digital camera was ‘making it up as he goes along.’
T387-8 -That [JW] not challenged as to the warning not to tell.
T390- That [SW] was not challenged on the conversation or warning not to tell anyone.”
As I have indicated when dealing with the previous ground, the applicant’s credibility was the focus of considerable attention by the prosecutor when cross-examining him in the trial. The assertion was made and put directly to the applicant that he was fabricating his version as he went along. This line of cross-examination was clearly appropriate in the circumstances and there was nothing offensive, remarkable or confusing in the formulation of the questions asked.
However, as counsel in this Court argued, the failure of counsel appearing for an accused person in a criminal trial, to put matters to prosecution witnesses or to the accused himself, is a matter that must be approached with care. King, C.J. pointed to the dangers of injustice that could arise in some cases in R. v. Manunta[27]–
“It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.”
[27]R. v. Manunta (1989) 54 S.A.S.R. 17 at 23-24.
This passage was later adopted with approval by the New South Wales Court of Criminal Appeal in R. v. Birks.[28] In that case, after the jury retired, the defence counsel informed the judge that he had failed through personal oversight to cross-examine on two significant matters, although he had instructions on both. The failure to attempt to deal with these matters had been the subject of attention in the prosecutor’s address and the trial judge had instructed the jury on the possible inferences that could be drawn in that situation. Their Honours said that -
“It would be something of an understatement to say that [when this matter was raised] confusion resulted. The learned judge asked counsel if he wanted the jury to be redirected in any way, and counsel declined. The learned judge asked counsel if he was applying for the jury to be discharged, and counsel ultimately agreed that he was. There was a good deal of debate and, apparently with considerable misgivings, the learned judge declined to discharge the jury who, for their part, returned fairly promptly with verdicts of guilty.
Both in the discussion that took place about the matter at the trial, and in argument before this Court, the Crown gave unqualified acceptance to the truth of the statements made by counsel from the bar table. Furthermore, evidence in the form of affidavits from the barrister and his instructing solicitor was adduced in this Court. It was made clear to this Court, and accepted by both sides, that the appellant’s barrister was well aware of the problem that had arisen as a result of his oversight at a time no later than during the cross-examination of the appellant at the trial. There were various steps that he could have taken before the conclusion of evidence to seek to remedy the situation. For example, he could have called his instructing solicitor to support the appellant’s evidence as to the instructions given by the appellant to his lawyers. As a last resort, he could have returned his brief in the matter and given evidence himself. His reason for not doing any of those things was not based on some tactical decision, but was that he simply did not know what to do. It appears that he hoped that the problem would become submerged in the mass of other detail but the consequences of his error became more and more obvious during the course of the address of the Crown Prosecutor and the summing-up. Finally, and apparently in some desperation, after the conclusion of the summing-up, he took the advice of a colleague at the bar and was advised at that stage to take the course described above.”[29]
[28]R. v. Birks (1990) 19 N.S.W.L.R. 677.
[29]R. v. Birks (1990) 19 N.S.W.L.R. 677 at 682-683.
The Court concluded that there had been a miscarriage of justice and the verdict was set aside.
In the present case, it was the fact that the warning given to each of the complainants not to tell anyone what had happened was unchallenged and clear enough that the prosecutor suggested more than once that the applicant was adapting or fabricating his version as he went along. It has never been suggested, either at the trial or in this Court, that the failure by counsel to put the various matters resulted from inadvertence or some misunderstanding by him of his instructions or because the significance of the matters may not have been apparent at the time that the respective witnesses were in the witness box. The only point that seems to have been made in this context was that there had been changes in the applicant’s representation prior to the commencement of the trial. There was nothing in the circumstances themselves that, even in hindsight, might have given rise to a concern by the trial judge that a problem might exist at this level. I find myself unable to discern any tactical consideration why, if the prosecutor’s contention was not correct, a decision might have been made not to pursue any of the matters. On the other hand, I can see very good reasons, if it was, why no exception was taken to the questions themselves, the arguments advanced by the prosecutor or the judge’s charge. The situation was not one in which the dangers to which King, C.J. adverted in the passage earlier set out, could be reasonably seen to be present. In the circumstances of this matter, absence of the instruction sought cannot be seen to have possessed the potential of compromising the fairness of the applicant’s trial or producing a miscarriage of justice. This ground must fail.
Ground 11
Objection was made by counsel appearing for the applicant at the commencement of the trial to the admission of the evidence of the tape recorded conversation between the applicant and JW on Saturday 28 February 2004. Two propositions were advanced:
(a) That the statements made by the applicant, which the Crown argued could be reasonably interpreted as admissions, were so vague and non-specific that their prejudicial value outweighed any probative force they might have been seen as possessing.
(b) That the circumstances of the conversations were such that the admission of the evidence would be unfair.
The latter argument related to the content of the statements, the absence of the provision of a caution and the presence of some pressure upon the applicant to respond to the allegations if he was not to lose contact with his daughter. When queried by the judge as to whether the issue of voluntariness was raised and after indicating some uncertainty as to the state of the law, counsel for the applicant appeared to concede that it did not.
Before us, the argument was advanced that, contrary to counsel’s acceptance at that time, the issue had arisen and should have been considered by the trial judge on the basis of the principles set out by Dixon, J. in McDermott v. R.[30] –
“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made… . The expression ‘person in authority’ includes officers of police and the like, the prosecutor, and others concerned in preferring the charge.[31]
…
… It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle of application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.”[32]
[30]McDermott v. R. (1948) 76 C.L.R. 501.
[31]McDermott v. R. (1948) 76 C.L.R. 501 at 511.
[32]McDermott v. R. (1948) 76 C.L.R. 501 at 512.
Here, it was said, the applicant was confronted with the possibility that a perceived lack of co-operation would result in the denial of access to his child, a matter of such concern to him that he later stated that he would make a “pact with the devil” to avoid that occurring. There was in that situation counsel argued, a powerful “inducement of a kind capable of overbearing the applicant’s will and restricting, in a real sense, his capacity to exercise a free choice to speak or remain silent”. As this Court accepted in R. v. Tofilau[33] -
“…There are almost certainly, in any given situation, a multiplicity of situational and psychological factors operating on the mind of an individual when considering whether anything and, if so what, should be said about a matter that may affect them or others around them. The notion of a free choice does not require an absence of possible benefits or detriments upon which the will may operate, but the absence of pressure that overbears the individual’s will thereby restricting the available choices or the manner of their exercise.”
[33]R. v. Tofilau (No.2) (2006) 13 V.R. 28 at 63.
The applicant gave no evidence on the voir dire and his counsel at the trial responded, when he was asked directly whether the issue of voluntariness arose, that “it is difficult to put it that high”. As I understand his submissions on this aspect, he did not consider that, in the circumstances, a reasonable argument could be presented that the will of his client may have been overborne or that his capacity to exercise a free choice to speak or remain silent may have been restricted. The trial judge was clearly justified in proceeding on that basis, giving full weight, as his questions indicate he did, to the concerns of the applicant in relation to his daughter. There was insufficient foundation in the circumstances for the principle of basal voluntariness to be enlivened and no requirement that the judge explore the matter further. The related contention advanced before us that the statements resulted from the proffering of an inducement by a person in authority was unsurprisingly never addressed at the trial, as there was insufficient evidence before the court to have raised the issue.
Finally under this ground, counsel for the applicant has argued that the trial judge fell into error in not excluding the evidence in the exercise of discretion. I do not agree that the Court would be justified in intervening on this basis. It is evident from his Honour’s ruling and the preceding discussion with counsel that he approached the admission of this evidence with appropriate care. It was he who raised the issue of voluntariness and was clearly concerned to ensure that no problem arose at that level. He listened to the tape recording “with great care and considered all the circumstances in which it was made”.[34] His Honour had regard to a number of reported and unreported judgments bearing upon both the admissibility of out of court confessional statements and the exercise of the discretion reposed in a trial judge to exclude them.[35]
[34]T125.
[35]R. v. Swaffield and Pavic (1998) 192 C.L.R. 159; R. v. Carter (2000) 1 V.R. 175; R. v. Koeleman (2000) 2 V.R. 20; R. v. Mustey [2001] VSC 67; R. v. KS and Said (2003) 6 V.R. 264; R. v. Goncalves (1997) 99 A.Crim.R. 193; R. v. Roba & Ors. (2000) 110 A.Crim.R. 245; R. v. Heaney [1998] 4 V.R. 636; and R. v. Peter Van Dooran [2004] VSCA 65.
He concluded –
“… I am not satisfied that the recording of the conversation between the accused and [JW] on 28 February 2004 ought be excluded. I do not accept that the admissions elicited result in any unfair derogation of the accused’s rights. I do not accept that any unacceptable forensic
unfairness results from the admission of the recorded conversation or having regard to the circumstances of the case as a whole, this evidence was obtained at an unacceptable price, having regard to contemporary community standards.
The conversation between the accused and [JW] was a conversation, not an interrogation. There was no ambiguity or uncertainty between them as to the topic being discussed, that was [JW’s] allegation of sexual assault approximately 20 years ago. The accused was fully allowed to speak of what occurred on his own terms and in his own way. There was little if any manipulation of the accused and no form of trickery or ruse.
There was no improper exploitation of the relationship between daughter and father. The tape recording occurred at an early stage of the investigative procedure. It was not obtained unlawfully. The accused was not in custody and therefore subject to the compulsion of the estate. The accused had not unequivocally exercised his right to silence. He had not been interviewed by the police. In view of the nature and date of the alleged offences it was quite proper for the police to seek further evidence.
There was a legitimate investigative purpose in trying to obtain further evidence of these alleged past offences. I do not accept the submission that this recording ought be excluded because it’s prejudicial value outweighs it’s probative value. I am satisfied the accused’s recorded statements, admissions, acknowledgement and apology have a high degree of probative value to the issues to be determined by the jury in this matter.
It is therefore just to admit this evidence, despite the fact that it clearly contains a prejudicial component.[36]
[36]T125-127.
The findings of fact made by his Honour were open on the evidence and there was nothing in his statement of reasons or his decision that reasonably raises the suggestion that he may have fallen into error.
In summary, I would dismiss this application.
EAMES, J.A.:
I agree that the application for leave to appeal against conviction should be
dismissed, for the reasons stated by Vincent, J.A.
REDLICH, J.A.:
I agree that the application should be dismissed for the reasons contained in the draft reasons for judgment of Vincent JA, which I have had the benefit of reading.
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