R W S v The Queen
[2012] VSCA 249
•26 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0058
| R W S | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, HARPER JA and BEACH AJA | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 26 September 2012 | |
DATE OF JUDGMENT: | 26 September 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 249 | |
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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault – Complainants intellectually disabled – Whether capable of free agreement to sexual acts – Whether jury directions adequate – Late abandonment of grounds of appeal – Application to add new ground – Leave refused – Complainants gave evidence in chief by audio-visual recording – Certain questions put by unauthorised person – Whether answers admissible – Whether unfair prejudice – Leave to appeal refused – Crimes Act 1958 (Vic) ss 36, 38, 39, Criminal Procedure Act 2009 (Vic) ss 367, 368, Evidence Act 2008 (Vic) ss 135, 137, 138.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis with Mr C T Carr | Camerons Lawyers |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
HARPER JA
BEACH AJA:
This is an application for leave to appeal against conviction on five counts of indecent assault and two counts of rape. For reasons which will follow, we would refuse leave to appeal.
The circumstances giving rise to the charges were as follows. Between January and October 2009 the applicant engaged in sexual acts with two women (to whom we will refer as ‘S’ and ‘T’ respectively). This took place at the applicant’s home.
Each of the complainants had a significant intellectual impairment. S, who was 33 at the time of these events, had a full scale IQ of 54. T, who was 36 at the time, had a full scale IQ of 64. Both were well below the cut-off point for intellectual disability which — according to the expert evidence at the trial — is an IQ of 70.
During the period of the offending, the complainants often attended the applicant’s house and assisted him and his then partner with odd jobs. On one occasion, the applicant asked S to lift up her top and expose her breasts. She did this and he then touched and sucked one of her breasts.
On another occasion, S attended the applicant’s home. The applicant’s partner was absent. The applicant took a shower and later joined S on his bed, where she lay naked. He then placed his penis in her mouth and in her vagina.
During October 2009, S and T attended the office area in the applicant’s house. The applicant asked T to lift her top. He then touched and sucked her breasts. He then instructed T to touch and rub his penis, which she did, and he then ejaculated. At some stage, the applicant took photographs of S’s breasts and vagina, and uploaded them onto his computer.
Apart from one count of rape (of which the applicant was acquitted), the defence admitted that the sexual activity had occurred, but contended that each of the complainants had been a consenting party.
The appeal
The applicant filed a written case with his grounds of appeal in March 2012. There were three grounds identified and the written case contained full submissions with respect to those grounds.
The Crown filed its written case on 25 July 2012. The written submission contended that the first and third grounds of appeal were ‘totally misconceived’. It was said that those grounds misapprehended the nature of the central issue in the trial, which concerned the capacity of the complainants to give consent — that is, free agreement — to sexual acts with the applicant.
According to the Crown, the applicant’s submission proceeded on the incorrect assumption that the issue at trial had been whether the complainants ‘understood the sexual nature’ of the acts in which they engaged.[1] As will appear, this criticism was well-founded.
[1]Crimes Act 1958 (Vic) s 36(e).
On 15 August 2012, a revised written case was filed on behalf of the applicant. As that document made clear, this had been done at the invitation of the Deputy Registrar and ‘for the purpose only of inserting page references corresponding to the transcript of the trial’. There was no change of substance.
In the course of the Court's preparation for the hearing of the application, the Court on 25 September 2012 arranged for a written inquiry to be sent via email to counsel for the applicant, in these terms:
The Court will be assisted by submissions addressed to the following matter.
The decisions of this Court in Mobilio and Eastwood make clear that a person may be incapable of freely agreeing to a sexual act even though (s)he is capable of understanding the sexual nature of the act (that is, in circumstances where s 36(e) of the Crimes Act 1958 does not apply): see Mobilio [1991] 1 VR 339, 351; Eastwood (1998) 114 A Crim R 448, 462-3 [57].
That being so, and given that the prosecutor disclaimed reliance on s 36(e) (T86), why was it necessary for the jury ‘to determine the issue properly in the manner mandated by s 36(e)’ (written case 4.6)?
This morning, at the commencement of the hearing, counsel for the applicant acknowledged that the Court's communication had prompted a reconsideration of the applicant's case. Counsel then began his argument by addressing what appeared to be a quite different ground. This new ground was not directed at any failure of the judge to give proper directions but rather, as will appear, at what was said to have been the constraining effect on defence counsel of a ruling given by the judge, at the request of defence counsel, early in the trial.[2]
[2]See [35]-[41] below.
Following argument in relation to the proposed added ground, counsel for the applicant indicated that grounds 1 and 3, as maintained in the written case until this morning, were abandoned. Although it is now not necessary for us to decide grounds 1 and 3, we think it may be of assistance to trial judges if we proceed to deal with the substance of those grounds. It is necessary for us to do so in any case in order to explain our reasons for decision on the one remaining ground and on the application to add a fourth ground.
Capacity to give free agreement
Grounds 1A and 1B were as follows:
1AA substantial miscarriage of justice occurred by reason of the prosecutor’s having put his case on the basis that the complainants were incapable of consenting without the jury having been at all charged, or directions given to them, on the circumstances which at law amounted to an absence of capacity to consent.
1BFurther and alternatively to Ground 1 [sic], a substantial miscarriage of justice occurred by reason of:
a)the shifts in the prosecution case during the course of the trial;
b)the admission of evidence irrelevant to the prosecution case as it ultimately went to the jury; and
c)the absence of directions removing from the jury the issue of capacity to consent.
The relevant provisions of the Crimes Act 1958 (Vic) (‘Crimes Act’) are as follows:
36 Meaning of consent
For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following—
(a)the person submits because of force or the fear of force to that person or someone else;
(b) the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e) the person is incapable of understanding the sexual nature of the act;
(f) the person is mistaken about the sexual nature of the act or the identity of the person;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.
38 Rape
…
(2) A person commits rape if—
(a)he or she intentionally sexually penetrates another person without that person's consent—
(i)while being aware that the person is not consenting or might not be consenting; or
(ii)while not giving any thought to whether the person is not consenting or might not be consenting; or
39 Indecent assault
…
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances—
(a)while being aware that the person is not consenting or might not be consenting; or
(b)while not giving any thought to whether the person is not consenting or might not be consenting.
Ground 3 was based upon the proposition, as expressed at [6] of the applicant’s written case, that if ‘the verdicts were to be properly determined by reference to capacity and s 36(e) of the Crimes Act, then … the verdicts are unsafe.’
As will appear, the argument in the written case in support of the abandoned grounds focused particular attention on s 36(e) of the Crimes Act. As set out above, that provision has the effect that a person’s inability to understand the sexual nature of an act renders that person incapable (for the purposes of the offence provisions) of freely agreeing to that act. Decisions of this Court have made clear — as the language of s 36 itself makes unambiguously clear — that the situation described by s 36(e) is but one of the circumstances in which there will be a lack of free agreement for the purposes of the sexual offence provisions in the Crimes Act.
Importantly for present purposes, as the Court’s email to counsel pointed out, the decisions of the Appeal Division in R v Mobilio[3] and of the Court of Appeal in R v Eastwood[4] both held very clearly — indeed, explicitly — that a person who understands the sexual nature of the act may nevertheless be incapable of freely agreeing to it, if that person's diminished intellectual capacity precludes her from making a decision to refuse, or from understanding that she has a right to refuse, consent to sexual acts.
[3][1991] 1 VR 339 (‘Mobilio’).
[4](1998) 114 A Crim R 448 (‘Eastwood’).
The Court held in Mobilio:
… [T]he law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact that she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse … In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct.[5]
[5]Mobilio [1991] 1 VR 339, 351.
In Eastwood, Callaway JA said:
First, the jury were told, in the course of the charge, both that the Crown case was that [the complainant] was incapable of giving her consent and that the Crown case was that she lacked the mental capacity to understand the sexual nature of the acts in question. The two propositions were treated as if they were interchangeable on several occasions in the course of his Honour's directions, but they are quite distinct. A person may understand the sexual nature of an act but be incapable of freely agreeing to it: see Mobilio at 351. It was open to the jury to conclude that [the complainant] was incapable of giving her consent even if she understood the nature of the acts.[6]
[6]Eastwood (1998) 114 A Crim R 448, 462-3 [57].
The Crown case at this trial relied on that very distinction. That is, the Crown maintained that, although these complainants understood the nature of the sexual acts in which they took part, they did not have the intellectual capacity to refuse consent to a person perceived by them to be in authority over them, and that the applicant was such a person. In answer to a question from the judge, the Crown’s expert witness, Mr Jones, said quite clearly that in his opinion S ‘understood what the sex act was’. Nevertheless, in his opinion S was:
unable to exercise informed consent to sexual activity with a male who she believed to be in a position of authority.
The Crown's position, it seems to us, was quite consistent throughout the trial. It comprised these elements:
1. Consent means free agreement: s 36.
2. There was no free agreement in this case because, due to their intellectual incapacity, neither complainant felt able to refuse the applicant when he initiated sexual activity. As the prosecutor put it, ‘they just did what they were told’.
3. The Crown expressly disclaimed reliance on s 36(e), both before and after evidence was given. In our view, the prosecutor could not have made it clearer that this was not a case about complainants who did not understand the sexual nature of the acts they were being asked to participate in.
Surprisingly, defence counsel[7] seemed to be — and to remain — under the impression that the prosecutor was relying on s 36(e). The transcript records counsel referring to that provision both before and after the Crown's very clear statement disavowing reliance on it. We should record, however, that despite the misplaced references to s 36(e), defence counsel's cross‑examination of the witnesses and his final address were properly and effectively directed to the question which was in issue. That is, had it been established beyond reasonable doubt that these complainants were incapable of freely agreeing to sex with the accused?
[7]Who was not counsel who appeared for the applicant before us.
It is clear from defence counsel's final address that he well understood that to be the issue. He built on the answers he had obtained in cross‑examination of the complainants to argue that their conduct gave no indication that either of them had been unable to refuse the applicant. He pointed to what he submitted were inconsistencies between their behaviour and the Crown case of incapacity, relying on what he submitted was their apparently willing engagement — indeed, in the case of one of them, repeated engagement — in sexual activity. These were proper arguments to be advanced and they were properly directed to the question which the jury had to decide. Counsel concluded by saying:
The facts go all the opposite way, that is to say the evidence is all against the Crown's proposition that in this setting the complainants lacked the capacity to consent freely.
The same misconception about this having been a s 36(e) case persisted in the applicant's written case for the appeal. The written case stated that:
4.1 The prosecution case, as opened and in the prosecutor’s address to the jury, was that the complainants’ cognitive impairments rendered them incapable of consenting to the charged acts. Thus, the trial and the evidence led during it focused on the complainants’ respective cognitive limitations, rather than on whether the circumstances surrounding the sexual acts disclosed a lack of consent in fact.
4.2Notwithstanding that state of affairs, and near the trial’s end, the prosecutor disavowed any reliance upon section 36(e) of the Crimes Act1958.
4.3Nevertheless, the central issue on which the prosecutor addressed the jury remained whether each complainant’s cognitive impairment rendered her incapable of consenting.
4.4 On this central question, dictated by the statutory criteria set out in section 36(e) of the Crimes Act 1958, the jury received no directions whatsoever.
4.5The corollary of the preceding submission is that the Applicant was deprived a basic and fundamental precept of the criminal trial process. His jury remained at all relevant times ignorant of the law as it pertained to the manner in which the Prosecution had put its case. On any view of the error or omission the subject of this ground, there has occurred, it is submitted, a substantial miscarriage of justice.
4.6The jury, unequipped with so much of the law as was necessary to determine the issue properly and in the manner mandated by s 36(e), in all likelihood it is submitted, found the Applicant guilty because opinion evidence had been adduced that complainants were incapable of ‘informed’ consent. Those circumstances can only have, it is submitted, rendered the Applicant’s conviction impermissibly more likely.[8]
[8]Emphasis added.
It is unsatisfactory, in our opinion, that these arguments should have been maintained until the morning of the hearing of the application, given that their untenability had been cogently pointed out by senior counsel for the Crown in his written submission of 25 July 2012. In our opinion, grounds 1 and 3 were not reasonably arguable, for the reasons which the Crown gave in that submission. That should have been appreciated much sooner by those representing the applicant. It should not have taken an email from the Court, which was essentially making the same point in a slightly different way, to provoke the reflection which led to the abandonment of the grounds.
Counsel will never be criticised for abandoning grounds. Rather, they will be criticised for persisting with untenable grounds. It is never too late to abandon a ground, but counsel should be astute to maintain their own critical scrutiny of their grounds and their arguments. As we have sought to make clear, that needs to occur in a timely fashion. The procedure of insisting on detailed written cases and Crown responses is designed to ensure that joinder of issue takes place well ahead of the hearing. It enables both sides to reflect on their positions and, if it seems appropriate, to concede before the hearing that a point hitherto maintained will no longer be maintained.
For the assistance of trial judges dealing with issues of this kind — which come up only infrequently — we wish to say with respect that his Honour's directions on the question of capacity, including his directions with respect to the treatment of the expert evidence, were entirely appropriate. The relevant passages from his Honour's charge are reproduced below:
[Counsel for the Crown] put to you that both [S] and [T] do not have the psychological capacity to exercise informed consent in relation to sexual activity with a male that she understood to be in a position of seniority or authority to her because their intellectual state is such that they do not have the capacity to exercise a free choice to say yes or no.
[Counsel for the defendant] both last Monday and this afternoon posed two questions for you. The first was can [S] or [T] consent to the sexual act? He said to you that if the answer to that is yes, you would find the accused man not guilty. If the answer is no, you would then need to consider this question: Should [the applicant] have known that they cannot consent? To which I add this, that it may be that the Crown may prove beyond reasonable doubt that the accused was aware that the complainant might not be consenting, in other words it is not confined to whether the accused was aware that the complainant was not consenting if you are satisfied beyond reasonable doubt the accused was aware that the complainant might not be consenting that would make out that fourth element. Or, as I put on the piece of paper, it may be the state of mind of the accused that you find established beyond reasonable doubt that he was not giving any thought to whether the complainant was or might not be consenting.
…
Now, it is in relation to that third direction that I want to emphasise, because the prosecution invite you to infer from the evidence, for example, in the case of [S], that she was a person who was unable in the circumstances she found herself in to give free agreement. Same point prosecution contend for is applicable to [T]. Facts would have to be established beyond reasonable doubt on the evidence in order for you to reach that conclusion. For example, you heard evidence from the psychologists, and … you have heard, most importantly I suggest, and seen the evidence that both [S] and [T] give in their evidence in the circumstances I have described and we really have, I suppose, an armchair view of those two women at one point in January 2010, being the VATE tape, and the other point being last week when the special hearings were conducted in this courthouse.
So I repeat, you would need to be satisfied beyond reasonable doubt of the facts, of the existence of the facts, before you could draw an inference as to the ability of [S] for example to give free consent, and secondly, you can only draw an inference if it is the only inference you can draw as being consistent with the guilt of the accused. If there is some other reasonable explanation or basis, you would find the accused not guilty.
…
In determining whether [S] did not freely agree to be sexually penetrated, you must consider all the relevant evidence including what she is alleged to have said and done at the time of the alleged penetration as well as the evidence she gave in court about her state of mind at that time. You can also consider what she did not say or do at the time of the alleged penetration.
In this case, the evidence and competing arguments relevant to proof that [S] was not consenting are these: Firstly, that [S] is cognitively impaired because her IQ is less than 70. Let me caution you about that, members of the jury. The fact that her IQ is less than 70 does not of itself mean that she is incapable of giving free agreement. The significance of having an IQ of less than 70 is that it enables that person to have legal entitlements relating to her disability under the Disabled Persons Services Act. In other words, you qualify for assistance, physical and financial, if your IQ is beneath 70. If it is above that, you do not.
But the prosecution contends to you that the level of [S’s] IQ is an important factor, an important piece of evidence, in your determination along with other evidence as to whether she is capable of giving free agreement. It is but one of the factors but it is not, as it were, the litmus test.
The second body of evidence is that of the opinions of the psychologists, Mr and Mrs Jones. They come to this court as experts because they have studied in the field of psychology in the context which they described to you and have given various reports about people's psychological state. To that extent they hold expertise above, you might think, yourself and myself and others. But the law says notwithstanding that those persons are experts, you have the responsibility of deciding whether you accept their evidence or not. It is a factual matter.
For example, if we are considering something in physics it might be a lot more complicated than a psychologist, I don't know, a jury in such a case would still have to determine whether they accept the opinion or explanation of the physicist, the expert, no matter how complicated and complex that evidence might be to the mind of the lay person. The law says you are not obliged to take at face value the evidence of the expert. The expert is in the same category as every other witness in this case. That is to say you must determine whether you can place reliance on their evidence and the degree of reliance that you can place on their evidence. It is an assessment of the witness' evidence as I explained to you yesterday when I gave you some hints about how you might evaluate witnesses.
Mr Jones' evidence is largely based … on what he got from [S] and [T’s] answers in the VATE tape. True it is he saw them for an hour each, separately, and that supplemented the base from which he formulated his opinion but you might think that a large part of his opinion was the result of what he saw in the VATE tape. I say that because when asked how he formed the view that [S] was subordinate to authority he referred to the way she responded in the VATE tape and you will recall it was his view that [S] was incapable of giving free consent or free agreement because of her intellectual disability when in the presence of a person senior to her or a person of authoritative character to her. His evidence was in his assessment that was the case with [the accused] and he relied upon the evidence [S] gave in the VATE for that.
Unlike you, Mr Jones did not see [S] in the special hearing. He only saw her in the VATE, whereas you, members of the jury, saw her both in the VATE and in the special hearing. In that context, I mean no disrespect to Mr Jones, you will bear in mind Mrs Jones did not see the VATE tape, in the way that they formed their opinion but it may carry less weight than otherwise because they did not take into account what you saw in the special hearing, namely the cross-examination of [S]. They only saw some of her evidence, not all of it. You saw all of it.
As I said to you yesterday, the resolution of [S]'s capacity to give free agreement is largely a matter of your assessment of [S] as she presented herself both in the VATE and at the special hearing. A comment I make, you may feel that Mr Jones' contribution to the evidence is not much greater than without it in the sense that largely, stand aside the fact that he is a psychologist, he has got that expertise which you do not have, largely he is evaluating and assessing [S’s] reaction to questions asked of her in the VATE tape just as you do and it may be you do not have to have particular expertise to make that assessment, that is a comment I make. Of course, he has had the advantage of an hour's interview with [S]. He did not go very much into all that but in his evidence he referred to parts of his report which had quotations of her answers in the VATE tape.
Plainly enough, the capacity of the complainant to give free agreement was a question of fact for the jury to decide. In Eastwood, where the issue was whether there should be a retrial or not, the question as formulated by Phillips CJ was: was there sufficient evidence for the jury to be satisfied beyond reasonable doubt that the complainant was incapable of freely agreeing?[9] That was also the question in this case. As we have sought to make clear, there was no change of case by the Crown, no risk of confusion of the jury and no miscarriage of justice.
[9]Eastwood (1998) 114 A Crim R 448, 461 [49].
It is also clear from the decision in Eastwood that there is no prescribed list of matters to which regard may, or may not, be had by a jury in its consideration of such a question. Indeed, as the following passage from Eastwood demonstrates, the types of evidence and types of considerations which can bear on that question can range widely:
It is also to be noted that [the expert’s] evidence did not stand alone. There were in addition the admissions made by the applicant in the record of interview and which I have previously noted. So, too, there were the observations of the lay witnesses, C and B. C's evidence was that he had seen [the complainant] once or twice before the occasion of the alleged offences and that he thought her level of intelligence ’very low’. This assertion, which he later reiterated to the judge, was not challenged. He said to the judge that he had previously spent a couple of hours in her company. B's evidence, which was colloquially expressed, was that [the complainant] ‘hasn’t really got a full deck of cards’. Again, this statement was not challenged. There was also a happening in the nature of a ‘view’ of [the complainant] in that she was brought into the court room before the jury (apparently for some five minutes) during the evidence-in-chief of [the expert] and identified by him.’ It appears that the Crown prosecutor relied on her appearance in the court room to support his submission that she was ‘severely handicapped’. No directions were given by the learned judge as to how the jury should utilise this view of [the complainant], again, apparently, because neither counsel bothered to ask for them to be given. Again, no complaint is presently raised as to this. Should a retrial eventuate, in my opinion, the jury would be entitled to view [the complainant] in order to better understand the evidence touching her.
For the purposes of the independent review of the evidence which is sought for the purposes of this ground, in my opinion it was plainly open to a jury to be satisfied beyond reasonable doubt that the complainant was incapable of giving free agreement. I rely for this view on the evidence I have already set out … I also refer in particular to the evidence the [expert] witness gave as to the IQ of [the complainant] and his opinion that she probably fell, in terms of overall intelligence, at the lowest one per cent of the population.[10]
[10]Ibid 462 [53]-[54].
Nor is there any prescription in Eastwood or Mobilio as to how a jury is to be directed. The question of capacity to consent is, after all, a matter of common human understanding. As the trial judge said to the jury in the present case, their assessment of the complainants would be informed — to the extent that it assisted them — by the expert evidence but, in the end, it was for them to decide. Of course, the jury had not only to assess whether the respective complainants were incapable of giving consent but whether the accused was aware, in each case, that the complainant was not, or might not be, consenting.
To make that assessment, it was necessary for the jury to make a judgment about the capability of each complainant as she appeared to the jury. In Eastwood, there was rather limited evidence available to the jury, although as we have noted it was adjudged sufficient to support a conclusion about the complainant’s incapacity. Here, the jury had an extended opportunity to form their own view of the capacity of the respective complainants.
In Eastwood, the jury were relying on observations of lay witnesses, one of whom had only seen the complainant once or twice, and on a brief appearance of the complainant in the courtroom. In the present case, the jury had seen each of the complainants give her evidence and be cross‑examined. The jury had heard from the mother who, of course, was in a position to give eye-witness testimony as to each daughter’s capability. The jury had seen the applicant's responses in interview, when asked about the women’s intellectual disabilities, and they had heard the evidence of both experts. The first expert was cross‑examined at length by defence counsel, who quite properly directed his questioning at the issue of capacity and, in particular, at why the expert considered that the applicant was a person whom these women regarded as being in authority over them.
Proposed new ground
We turn then to the proposed added ground, Ground 4, which is in these terms:
A substantial miscarriage of justice was occasioned by:
(a) The judge having ruled that defence counsel was not permitted to cross-examine the complainant [T] on the question of whether and why she had succumbed to the sexual acts or had her will overborne; and
(b) notwithstanding (a), the prosecutor having addressed the jury in respect of both complaints on the very issue about which defence counsel was prohibited from cross-examining.
In our opinion, the applicant should not have leave to add this ground. It is bound to fail, for the following reasons.
The transcript records that there was, quite properly, discussion with the trial judge and trial counsel about whether the Crown case, as opened to the jury, was in fact advancing two inconsistent cases on consent. The relevant portions of the judge's ruling are as follows:
The primary case the Crown mount is that there was an absence of consent, because the complainant did not have the capacity to formulate consent in the first place. The alternative case is, the complainant has the capacity to give free consent, but her freewill was overborne by the conduct of the accused. Those two positions are inconsistent.
Even if there were an application made to amend the opening, to put the alternative position, I would not permit it because, in my view, that inconsistency would (indistinct) upon the accused's considerable difficulties and with the potential of prejudice in meeting the inconsistent case put against it. For those reasons, I do not propose to permit [counsel for the defendant] to ask of [T] questions relating to the reasons why she may have succumbed, because I understood it, that was your position this morning, [counsel for the defendant], was it not? You wanted to cover the alternative case.
As we indicated earlier, this issue was properly raised by trial counsel, who wanted to ensure that his client was not having to meet two inconsistent cases. As appear from the passage set out, his Honour took the view that the Crown did appear to be advancing two alternative and inconsistent cases. The first was that neither complainant was capable of free agreement. The second was that each of them was capable of free agreement but had had her will overborne, in the sense referred to in s 36(a) of the Crimes Act.
With respect, his Honour was clearly right to hold that those two cases could not both be advanced. They were plainly inconsistent though, as we have already said, it is not apparent to us that the Crown ever sought to advance the alternative case. It appears to us that the prosecutor was at all times advancing only one case — that is, that in the relevant circumstances neither complainant was capable of giving free agreement.
As to the effect of this ruling, there is nothing in the record of the trial to indicate to us that defence counsel was constrained in any way in his pursuit of the key issue of capacity to consent. As we have said, that issue, as defined by the Crown and made clear in the expert’s evidence, was whether in respect of each complainant, she was incapable of freely agreeing to, or freely refusing, a sex act with a person perceived by her to be in authority, namely, the applicant.
Nothing was said by defence counsel at any stage of the trial to indicate that he felt constrained in conducting his client’s defence. Thus he cross‑examined S about her perception of the applicant as a person in authority. It is true that this took place before the judge made the ruling, but no issue was raised during his subsequent cross‑examination of T. Defence counsel cross‑examined the first expert at length about his opinion both as to lack of capacity, and as to the complainants’ perception of the applicant as a person in authority. They were the issues in the trial and defence counsel was able to refer the expert to the evidence given by the complainants in order to test his opinion. And counsel in his final address built on this cross-examination to challenge the Crown case about incapacity to consent.
We would add, however, that some of the language used by defence counsel in his cross‑examination of the expert was offensive. Such language was quite unnecessary to the forensic task being undertaken and it should not have been used. Experts are called to assist the Court. Robust cross‑examination is, of course, appropriate. Discourtesy is never appropriate.
The proposed ground is an example, in our view, of a ground being raised (in this case, very late) which simply does not reflect the way the trial was run. As we said yesterday in M B v The Queen,[11] it will always be a difficult task to make good a ground of appeal of this kind, which seeks to ventilate a question or issue which defence counsel was in a position to raise (if it were necessary to do so) but did not. Here, as we have said, defence counsel evidently felt no constraint, and suggested no unfairness, as a result of the judge’s ruling. As we pointed out, it was a ruling in his favour, on a point which he had sought to have ruled on. It was a proper matter for him to have raised and it helped to delineate clearly the scope of the trial and the nature of the matter in issue.
[11][2012] VSCA 248, [41]-[43] (Maxwell P), [48] (Harper JA).
Recorded evidence
We turn finally to Ground 2, the only one of the original grounds which was maintained. Each of the complainants gave her evidence‑in‑chief in accordance with s 367 of the Criminal Procedure Act2009 (Vic) (‘Criminal Procedure Act’), which states:
367 Use of recorded evidence-in-chief
A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.
There are provisions in s 368 of the Criminal Procedure Act compliance with which makes the recording referred to in s 367 admissible as evidence in a trial. There is no suggestion on this appeal that the recording of what is properly regarded as the complainants’ evidence‑in‑chief failed to comply with any of the procedural requirements.
Rather, the issue raised by this ground concerns what occurred during a period in each of the recordings when the authorised questioner was absent and the ‘independent third person’ remained with the complainant. In each case, there was a conversation between that person and the complainant, not about the matters of sexual complaint but about the doll which the complainant had been holding during her interview. Relevant excerpts of the conversations are set out below:
Interview with S:
Ms L: … it’s bigger than your little doll.
A It’s nice and fluffy.
Ms L: It is, isn’t it?
A Yeah.
Ms L: Have you got fluffy toys at home?
A No.
Ms L: You haven’t? So haven’t you got any more dolls beside Stephen?
A I’ve got others.
Ms L: Yeah. What sort?
A Girls.
Ms L: Oh, yeah. How many have you got at home?
A Three girls.
Ms L: O.K. And are they - - -
A She - - -
Ms L: Yeah,
A She stays in the pusher.
Interview with T
Ms L: What are you going to do this afternoon when you get home?
A Try and do the puzzles.
Ms L: Oh, O.K. Good.
A Puzzles.
Ms L: Do you do lots of puzzles? What sort do you do?
A The one I’m doing now is a popcorn one.
Objection was raised by defence counsel to these portions of the interviews. The judge, after having consulted with another judge of the County Court, ruled that he would not excise these interludes from the recordings which were then already before the jury. It is now said that the relevant portions should have been excluded and that the failure to do so has resulted in a substantial miscarriage of justice, because they were not within the scope of the recording authorised by s 367.
In his written case in response to this ground, senior counsel for the Crown drew attention —properly, in our view — to the need to consider the provisions of the Evidence Act 2008 (Vic) (‘Evidence Act’) which could be said to have governed the admissibility question. (No reference was made to the provisions by trial counsel when he raised his objection). Senior counsel referred to ss 135, 137 and 138 of the Evidence Act. The matter is somewhat further complicated by s 368(3) of the Criminal Procedure Act, which confers a general power on the Court to rule as inadmissible ‘the whole or any part of the contents of a recording.’
In his written case, senior counsel for the Crown conceded that the answers recorded during the exchanges between the independent third person and the respective complainants could be viewed as improperly obtained evidence, within the meaning of s 138(1)(a) of the Evidence Act. It seems to us, however, that this is not a situation to which s 138 of the Evidence Act applies.
Since s 367 of the Criminal Procedure Act speaks of a witness giving evidence‑in‑chief in the form of a recording, it seems to us that the making of the recording can properly be viewed as being the equivalent of the witness giving evidence in the courtroom. The procedure for evidence-in-chief to be recorded separately in this fashion has been adopted for the assistance and protection of witnesses, and is intended to fulfil that function in a trial which is ordinarily fulfilled by a witness giving viva voce evidence. Section 138, on the other hand, seems to be directed at the obtaining of evidence in some form or another before trial, not at the giving of what are said to be inadmissible answers in the course of evidence‑in‑chief.
Assuming that to be right, there is no doubt that his Honour had power under s 368(3) of the Criminal Procedure Act to rule part of the recording inadmissible. It was not evidence‑in‑chief in the sense adverted to by s 367 but it was part of the recording. Had a ruling under that section been sought, we think it likely, as senior counsel for the Crown submitted, that the exercise of the discretion would have been informed, if not governed, by the considerations set out in the applicable provisions of the Evidence Act.
According to the submission for the applicant, the admission of the answers given in the interlude periods gave rise to ‘unfair prejudice’ within the meaning of ss 135 and 137. Of course, if s 137 were applicable (because the probative value of the evidence was outweighed by the danger of unfair prejudice), the Court would have been bound to strike the relevant answers from the record (assuming that to have been a feasible way of effecting its non-admission into evidence). Alternatively, and in any event, the Court had power to rule the answers inadmissible if their probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial, pursuant to s 135(a) of the Evidence Act.
In our view, if the question had been raised and a ruling sought by reference to those considerations, it is almost inevitable that the evidence would have been treated as admissible. So far as probative value is concerned, the answers given in the course of each interlude had real and obvious probative value. This was evidence of a kind which, in our view, was quite properly before the jury, which had to decide the question of the complainants’ mental capacity. As Beach AJA pointed out in argument, in a civil jury trial concerning the extent of impairment of a person suffering from cerebral palsy, it is conventional — and unobjectionable — for those representing the plaintiff to put into evidence a film showing ‘a day in the life’ of the plaintiff. In short, evidence of this kind, that is, evidence of engagement between one or other of the complainants and some third party, could have been led and would have been admissible as relevant to the central issue in the trial.
For that purpose, the answers given in the interludes were evidence of exactly the same character as the evidence which the complainants gave in the course of their authorised VATE interviews. It is also of the same character as the observations by lay witnesses which the Court in Eastwood viewed as relevant and probative. The difference in this case is that the jury was able to view the complainants first hand, rather than having to rely on someone else’s observations.
In fact, it seems unlikely that these exchanges would have added much to what the jury was already aware of, given that each complainant was holding her doll through the formal part of the interview and given that this very matter had been raised with the applicant in the record of interview; namely, that it must be thought strange that a woman in her thirties would carry a doll. So far from it being regarded as irrelevant or extraneous, defence counsel said in his final address to the jury, ‘You can play with dolls but you can also have sex’.
So far as unfair prejudice is concerned, we are unable to see that there was any. As the cases have made clear, evidence which is adverse to an accused is not unfairly prejudicial, although it is doubtless prejudicial.[12] That, of course, is its purpose. It is only unfair if it is liable to be given weight which is not warranted or if it is liable to confuse or mislead a jury. For the reasons we have given, this evidence had none of those characteristics.
[12]See Papakosmas v The Queen (1999) 196 CLR 297, 325 [91], Festa v The Queen (2001) 208 CLR 593, 603 [22], 609 [51].
The only matter relied on to support the applicant’s contention as to unfair prejudice was the undoubted fact that the questioner during these interludes was not a person authorised for the purposes of the making of recordings under s 367 of the Criminal Procedure Act. That circumstance does not, by itself, constitute or give rise to unfair prejudice. The fact that an unauthorised person was the questioner said nothing, in our view, about the utility of the evidence. Nor did it make it unfair in a way that it could not have been said to be unfair had the questions come from a police officer.
There may, of course, be circumstances when things said in an interlude of this kind might well be unfairly prejudicial but we need say nothing about those possibilities. Plainly enough, whether there was unfair prejudice would depend on the circumstances and, in particular, on the content of any recorded exchange during such an interlude. For the reasons we have given, that was not this case. For completeness we would add that if, contrary to our view, this issue fell to be considered by reference to s 138, our conclusion would have been the same.
For those reasons, we would refuse the application to amend the grounds of appeal to add Ground 4. We consider that Ground 2 was not reasonably arguable and accordingly leave to appeal should be refused. We so order.
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