Raimondi v The Queen
[2013] VSCA 194
•31 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0074 | |
| ADAM RAIMONDI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and OSBORN JJA and MACAULAY AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 23 May 2013 | |
| DATE OF JUDGMENT | 31 July 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 194 | |
| JUDGMENT APPEALED FROM | R v Raimondi (Unreported, County Court of Victoria, Judge Campton, 25 October 2010) | |
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CRIMINAL LAW – Appeal against conviction – Evidence – Use of prior inconsistent statements – Direction as to whether inconsistent statement had been made – Direction that jury determine which of the inconsistent statements they believe – Whether Liberato direction necessary – Whether necessary to direct jury that prior inconsistent statements could be used as evidence of the facts asserted in them – ss 59, 60 Evidence Act 2008 – R v Abdallah [1999] NSWCCA 380; R v Hilder (1997) 97 A Crim R 70 considered – Truth of representations not relied upon by either party – Forensic advantage for defence in not seeking direction.
CRIMINAL LAW – Whether verdict unsafe or unsatisfactory – Unusual features of case not creating solid obstacle to conviction – M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Rodi v The Queen [2011] VSCA 48 applied- Appeal dismissed
CRIMINAL PROCEDURE – Content of Judge’s Report to Court of Appeal – Opinion on issues to be determined on appeal.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin with Mr Max Hume | Victoria Legal Aid |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
On 25 October 2010, the appellant was convicted by a County Court jury of one count of false imprisonment, three counts of assault, two counts of threat to kill, eight counts of indecent act with a child under 16, four counts of rape and one count of sexual penetration of a child under 16. He was acquitted by direction on one count of indecent act with a child under 16. The jury was unable to agree on a count of abduction. On 21 January 2011, he was sentenced to a total effective sentence of 11 years and 6 months’ imprisonment, with a non-parole period of 8 years.
On 5 February 2013, Maxwell P granted leave to appeal against conviction on the following grounds:
1.The trial judge erred in directing the jury that they could only use evidence of prior statements alleged to be inconsistent in assessing the credit of a prosecution witness if they found that the alleged inconsistent statements had been made and were inconsistent.
2.The trial judge erred in failing to direct the jury that prior inconsistent statements could also be used as evidence of the facts asserted in them.
3.The convictions are unsafe or unsatisfactory because in the circumstances of the case a jury ought to have had a reasonable doubt about the reliability of the evidence of the complainant.
Background
The offences were alleged to have occurred on a single day in 1993 or 1994, when the complainant was aged 7 or 8. The appellant was aged 18 or 19 at the time. At trial, the complainant gave evidence that he was at a park with his brother and his friends at about 10 am on a Saturday or Sunday. The complainant walked off, leaving the other boys. When he got to the edge of the park he saw the appellant, whom he knew. The appellant asked the complainant to go with him, but the complainant refused, because during a previous visit to the appellant’s house, the appellant had touched him on the thigh and made him feel uncomfortable. He told the appellant to ‘go away’, but the appellant grabbed him by the arm, then by his head and hair. The complainant started to scream. The appellant put his hand over the complainant’s mouth and dragged him to his house nearby.
The complainant was forced into the house and thrown to the floor. The appellant then locked the front door. The complainant got up and ran towards the back door but was pushed to the floor again. The appellant hit him on the head two or three times. He was taken upstairs and thrown onto the floor of the bedroom. The appellant told him that if he screamed or tried to escape, the appellant would kill him.
The appellant then threw the complainant onto the bed and taped his wrists together with duct tape. He took off the complainant’s shoes, pants and underpants and touched him on his penis and testicles. He tried to kiss the complainant on the lips and told him to be a good boy and he would not get hurt. He opened the complainant’s legs and inserted one of his fingers into his anus. He rolled the complainant onto his stomach and put his penis in the complainant’s anus. He pushed his penis in and out, saying, ‘How do you like that?’. He pulled his penis out and taped the complainant’s ankles together. He then dressed himself and told the complainant to be a good boy and stay there or he would die. The appellant then left the room. The complainant screamed for help and the appellant returned and struck his face.
The complainant gave evidence that over the course of the day, the appellant raped him on two more occasions, put duct tape over his mouth to prevent him from screaming and licked and sucked the complainant’s penis. After he was finished, the appellant grabbed him by the arm and walked him downstairs. When they got to the front door, the appellant grabbed the complainant by the throat, lifted him off the floor and told the complainant he knew where he lived and that if he said anything, the appellant would get him and his family.
The complainant ran home in the dark. He told his mother that he had been playing at a friend’s house. His mother yelled at him for being late and sent him to his room. He had red marks on his ankles and wrists from the duct tape and a mark on his face where he was hit, but his mother did not enquire about these marks. There was blood on his underpants, so he threw them out. He did not tell anyone about what had happened.
Some fifteen years later, in 2008, the complainant saw the appellant at a pub. He was so overwhelmed by seeing the appellant that he bought four or five packets of paracetamol and took them in an attempt to commit suicide. He was treated at the Royal Melbourne Hospital and placed on suicide watch. After returning from the hospital, he told his family that he had been sexually abused when he was a child. His brother asked if it had been the appellant who had abused him and the complainant said it was. The complainant attempted to commit suicide again a couple of months later in March 2008, by driving his car into a power pole at high speed without a seatbelt. He was seriously injured. In May 2008, he made a statement to police. The appellant was interviewed by police in October 2008 and was subsequently arrested.
Prior inconsistent statements
Each of the grounds of appeal relate to statements the complainant made when giving evidence that were inconsistent with the account he had given to the police and in his evidence at committal. There were also inconsistencies between his evidence of the incident and the previous representations of the incident that he had made to AV, a close friend, and to his psychologist.
The defence’s case was that the appellant had committed none of the acts alleged. It was submitted at trial and on appeal that the jury ought to have had a reasonable doubt about the reliability of the complainant’s evidence because the circumstances alleged were so unusual and because of the complainant’s prior inconsistent statements.
The first person the complainant told about the abuse was AV during high school. She recalled having an online conversation with him during Year 10 in which he told her he had been abused as a younger child. AV said that the complainant was not specific about timing or the offending except to say that ‘All he said, he did say one time that at some stage he used to get locked in a room.’ He asked her not to tell anyone. During cross-examination she said that the complainant had given her the impression that the abuser was someone close to him and that it had happened on more than one occasion. She said that she thought the abuser was ‘a person that used to look after him, so like baby-sit him, I guess’ and further said that the abuser was someone that the complainant knew, not a random person. She said, ‘I'm not sure whether this person was a blood uncle or someone [the complainant] used to call an uncle.’ She said that she was left with the impression that the abuse had occurred on numerous occasions.
Ms Anastasia Novella, psychologist, consulted with the complainant in March 2008, after his first suicide attempt. Her notes of that consultation recorded that the complainant told her that when he was 7 or 8 he was sexually abused by a male who lived in his neighbourhood, ‘Adam’. She noted ‘the client says that “A” had enticed him to his house on a number of occasions, he could not say how many. And mostly Adam would fondle/touch, et cetera.’
Ms Novella also noted that the ‘Worst time was when A dragged client to A's house from the park. Client didn't want to go. Crying and very scared. A forced him into bedroom and threatened to kill him if he screamed or tried to escape. A tied client with duct tape. Abused him over some time in the same day. Client remembers being molested and told to do terrible things. Then A would leave the room and come back again and abuse client sexually again.’ According to her notes, the complainant told Ms Novella he had been enticed to the appellant’s house a number of times, but the complainant did not say how many.
The complainant testified that there were two incidents involving the appellant. On an occasion before the abduction, the complainant had been visiting the appellant’s house with his brother. The appellant had made him watch a pornographic video. When his brother and his friends had left the room, the appellant touched him on the thigh. He had not mentioned the ‘thigh touching’ incident in his statement to police or on committal.
The complainant’s mother gave evidence that she recalled an occasion when her son came home after the time he was allowed to be out and she grounded him. She had not noticed any marks on her son’s body the night he came home late. Some time after that incident she took him to see a doctor because he was having night terrors. He was referred to a psychiatrist but the sessions were unproductive. He began to gain weight and withdraw from outdoor activities. He was also anxious and wanted to know where she was at all times. She did not know of the offending until the time between her son’s two suicide attempts when he told her what had happened. He did not, however, tell her the details as he did not want her to know them since it would upset her and because he was embarrassed and ashamed.
At the committal hearing, she said that during 1992 she took the complainant to see a child psychiatrist. During cross-examination she stated that she could not be sure of the date her son was taken to the doctor for night terrors, but insisted it could not have been 1992, despite her previous statements to the police and during committal. She denied reconstructing the treatment date to accord with when he told her the offending had occurred. Upon production of the doctor’s notes and Medicare receipts, it was determined that the complainant was treated for ‘terror dreams at night’ in 1998 when he was aged 12.
In summary, the appellant relied on the following inconsistencies. First, there were inconsistencies as to the number of incidents of abuse. AV was told there had been numerous occasions of abuse. The complainant had told Ms Novella that he had been ‘enticed’ into the appellant’s home on multiple occasions and that the abuse involved genital fondling. The complainant initially told police there had been one incident, but later gave evidence about the previous ‘thigh touching’ incident. Second, there were inconsistencies as to the identity of the abuser. The complainant had told AV that the abuser was someone known to him – an uncle or someone who used to babysit him. He had told the psychologist that the abuser was someone in his neighbourhood named ‘Adam’. Finally, there was conflict between the complainants evidence of his subsequent encounters with the appellant. The complainant said he had not come face to face with the appellant until 2008 when he saw him in a pub. His mother gave evidence that in 2001, before the complainant’s family moved house, the complainant told her that the appellant would constantly glare at him.
Ground 2
It is convenient to deal first with ground 2 of the appeal. The appellant submits that the trial judge erred in failing to direct the jury that prior inconsistent statements could also be used as evidence of the facts asserted in them.
During the trial, the defence sought to rely on previous representations the complainant made to AV and Ms Novella as affecting the credibility of the complainant. In his final address, counsel for the defence argued that the jury could not accept that the Crown had proved beyond reasonable doubt the identity of the offender, nor that any abuse had occurred in the manner alleged by the complainant.
The appellant submits that the trial judge erred in directing the jury that prior inconsistent statements were relevant only to credit and were not evidence of the facts asserted in them. The appellant submitted that her Honour’s answer to the jury question left the hearsay use of the such statements unclear.
While the hearsay rule in s 59 of the Evidence Act 2008 (‘the Evidence Act’), prohibits the use of a previous representation as evidence of an asserted fact, s 60(1) of the Evidence Act states:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
Subject to any limitation upon its use imposed by s 136 the representations within a prior inconsistent statement are evidence of the truth. Thus the appellant argued that evidence of a previous representation – in this case the statements made by the complainant to AV and the psychologist – that were properly admitted for credibility use were also admissible as evidence of the facts asserted in those statements.
Section 60 does not reflect the common law, under which evidence of a previous representation admitted for a non-hearsay purpose, could only be used for that purpose. A direction was required at common law that the asserted facts in a prior inconsistent statement were not evidence of the truth.[1] A similar direction was required in relation to a history obtained by a medical practitioner and to evidence of recent complaint in sex cases. Such a direction was necessary to eradicate the assumption made by juries that all the evidence they received was evidence of the truth of what was said. Section 60, as recommended by the Australian Law Reform Commission, is based upon the view that in the absence of the common law direction, the jury will assume that the facts asserted in a previous representation are evidence of its truth.[2] As Hidden J (Meagher JA and Grove J agreeing) said in R v Abdallah,[3] in respect of a complaint that the judge had failed to direct the jury that a witness’ prior inconsistent statement not only affected her credibility but was also evidence of the facts asserted:
His Honour gave no direction about how that evidence might be used and, not surprisingly, counsel for the appellant at the trial did not ask him to. In the absence of such a direction, the jury would have no doubt treated the statement as evidence of the fact asserted. The artificial distinction between evidence relevant to facts in issue and evidence going only to credibility is maintained by lawyers, but not by the general community. It was partly in recognition of this fact that s60 was enacted.[4]
[1]R v Sams (1990) 46 A Crim R 468, 470-1.
[2]Australian Law Reform Commission, Evidence (Interim), Report No 26, Vol 1 [685].
[3][1999] NSWCCA 380.
[4]Ibid [29].
Similarly, in R v Hilder,[5] Hunt CJ at CL (Smart J and Howie AJ agreeing) considered the admissibility of an account given by the appellant to his doctor as to his history of mental illness:
That [evidence] is not being put forward as hearsay material, but as evidence of the truth of what the appellant said to the doctor. There is no risk that the jury would have thought otherwise. Juries are certainly not aware of the arcane distinctions drawn by the common law between the admissibility and use to be made of direct and hearsay evidence. The appellant would not have been prejudiced by the absence of the direction which it is now said should have been given.[6]
[5](1997) 97 A Crim R 70.
[6]Ibid 92. See also Charters v The Queen [2012] VSCA 318, [19].
Thus, where s 60 is enlivened in respect of evidence of a previous representation, it will not usually be obligatory for the judge to direct the jury that the evidence may be used as proof of the facts asserted in the representation. In the absence of a direction that the evidence cannot be so used, the jury will assume that the facts asserted were evidence of the truth. However it remains preferable that a trial judge direct the jury that the factual assertions contained within representations admitted pursuant to s 60 may be used as evidence of the facts asserted but it is not ordinarily obligatory that the judge so direct the jury.
Here however the trial judge gave the jury a direction that the jury should not use the statement made by the complainant to the psychologist as evidence of the facts asserted in the statement. Her Honour said:
However, it is important that you realise that it is simply evidence of what the complainant is saying happened to him, it is not evidence that supports – that it did happen to him, and that is obvious because Miss Novella is telling it second-hand, she obviously is not a witness who saw these events, and I think that is just a matter of common sense.
During deliberations the jury asked: ‘Can you please remind the jury of what evidence should be relied upon to reach a verdict? Is the witness statement regarded as evidence?’ After discussing the question with counsel, her Honour answered the question as follows:
If a witness in the witness box adopts the statement, then it is evidence. If the witness adopts a statement that is inconsistent, or if the statement is inconsistent with the evidence that is given in court, you have two versions given by the same witness: you have the version given in the statement and you have the version given in court. I remind you that you can use the fact that it is inconsistent in assessing the credibility and reliability of the witness, just as if a witness adopts a statement and gives the same evidence in court, you have the same version given by a witness. So you can use that to assess the witness's credibility and reliability.
Although the ground of appeal is expressed as a ‘failure’ by the trial judge to give the direction, the gravamen of the complaint on appeal really was that the judge erroneously left the jury with the impression that the facts asserted in the representations could only be used as bearing upon the complainant’s credibility and reliability. The complaint can be of no assistance to the appellant in the circumstances of this trial as defence counsel and the prosecutor at trial had made their wishes very clear that the jury should be instructed that the factual assertions could not be used as evidence of the truth.
After Ms Novella’s evidence, the trial judge said to counsel in the jury’s absence that ‘uncharged acts has reared its head, hasn’t it?’, in reference to Ms Novella’s evidence that the complainant had told her that he had been abused on more than one occasion. The following exchange occurred:
PROSECUTOR: I'd like to think we could find a way round that, Your Honour, because I wouldn’t be asking the jury to accept – I don’t think it's open for the jury to accept that as a fact other matters occurred. The most they could get from that is she was told that there were other occasions, but there's no evidence about that, and he says there isn't. I don’t think there's an allegation ---
DEFENCE COUNSEL: (Indistinct).
HER HONOUR: Yes.
PROSECUTOR: - - - of uncharged acts, Your Honour, I think – I hope we're on the same sort of wavelength on this, that the status of the evidence in relation to uncharged acts is the complainant says well if that’s what she recorded, that’s a misunderstanding, because I'm only talking about one other matter, but it's lost in translation in effect.
…
HER HONOUR: So do I have to say anything to the jury - - -
DEFENCE COUNSEL: I submit not, Your Honour. You'll have to give them directions about prior inconsistent statements in that you can use it for credibility, but in this case not as to the truth of what was said to the psychologist because that’s not the Crown case.
HER HONOUR: The main thing I just want to make clear is the defence is not suggesting at this stage that I should give any warning to the jury that if they believe that the complainant in fact said this to this psychiatrist, that he must have committed the offences charged, et cetera, et cetera.
DEFENCE COUNSEL: No, because in effect the complainant has denied other occasions - - -
HER HONOUR: I understand that.
DEFENCE COUNSEL: - - - apart from the video.
The prosecution was not seeking to rely upon the facts asserted in the representations as evidence of the truth. Counsel for the defence eschewed any direction that the evidence of prior inconsistent statements could be used to prove the truth of the facts asserted in them. This was no doubt done for forensic gain given that the additional facts contained in the statements were largely inculpatory. The psychologist’s notes stated that the complainant was attacked by a man named Adam (the appellant’s Christian name) who lived in the complainant’s neighbourhood. The direction which it is now suggested should have been given would only have disadvantaged the appellant.
Once it was drawn to the attention of counsel on appeal that trial counsel, for obvious forensic reasons, had requested the trial judge direct the jury as she did to the advantage of the appellant, no further argument was advanced in support of this ground. This ground is not made out.
Ground 1
The appellant submits that the trial miscarried as a consequence of the trial judge’s directions to the jury about the inconsistencies between the complainant’s evidence, his mother’s evidence and his previous representations to VA and Ms Novella. There are two distinct errors alleged under this ground. The first error alleged is that her Honour effectively reversed the onus of proof by directing the jury that they had to find that a particular inconsistent statement had been made and was inconsistent before that statement could be taken into account.
Her Honour said:
I give you the following direction: if you find that the evidence of the complainant and his mother is inconsistent with the account in court, you can use the statement when assessing their credibility and reliability. You may find the fact that they previously gave an inconsistent account means that the evidence they gave in court is less likely to be truthful or accurate. You might therefore be less willing to accept their evidence. It is for you to decide whether or not to draw this conclusion from any inconsistencies you find.
The trial judge later directed the jury specifically about the inconsistency between the complainant’s evidence and his account to AV:
[I]f you believe [AV]’s account of what the complainant told her over the internet, then if you accepted her and not the complainant that would be a prior inconsistent statement by the complainant and that would affect his credibility.
The appellant submits that by inviting the jury to ‘find’ inconsistencies and ‘accept’ that prior inconsistent statements had been made, the trial judge led the jury to engage in a process of intermediate fact-finding. The appellant submits that this approach is wrong, because, so it was put, a juror need only believe that a previous representation may have been made and that it may be inconsistent in order to be able to use such a statement as casting doubt on a complainant’s credibility or upon the ultimate fact in issue.
There is no force in the submission that the jury should not be directed as to whether they ‘find’ or ‘accept’ that an inconsistent statement has been made. That is a conventional form of direction. Although no particular standard of proof is required for such a finding, it is plainly a matter for each juror to decide whether such a statement was made and, if so, the significance of that statement. A juror would have to find the statement to have been made and to be inconsistent, to provide the juror with a basis for doubting the complainant’s account. The instruction to the jury that if they found any prior statements to be inconsistent, they could take that into account in assessing the witnesses’ credibility and reliability was entirely appropriate.
The appellant also contended that requiring the jury to ‘find’ that a statement was inconsistent enlivened the danger identified by Brennan J in Liberato v The Queen[7] – that where a case turns on which witness is to be believed:
it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.[8]
[7](1985) 159 CLR 507 (‘Liberato’).
[8]Ibid 515.
The drawing of an analogy with Liberato is misplaced. This direction did not create a danger that the jury might conclude that if they did not find the prior inconsistent statement had been made, the prosecution would have proved its case.
The second error alleged by the appellant arises out of a further direction given by the trial judge which it was said necessitated a Liberato direction:
If you do find the statements I have referred to inconsistent with the evidence the witness gave in court, you have two different accounts from the same witness. It is for you to decide which account, if any, to believe.
This direction was in accordance with the model charge in Part 4.14.3 of the Victorian Criminal Charge Book.[9]
[9]Judicial College of Victoria, Victorian Criminal Charge Book [4.14.3].
The danger adverted to by Brennan J in Liberato in the passage above quoted arises from the choice that a jury is invited to make between the evidence on which the accused relies and evidence of a contradictory witnesses. As I explained in KDY:[10]
[T]he so called ‘Liberato direction’ has been said to be an appropriate one in many cases ‘where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true.’[11] Both dissenting judgments in Liberato emphasised that the answer to such a question must be accompanied by clear and unequivocal directions about the criminal onus and standard of proof so that there is no risk that the jury will treat the making of a ‘choice’ between the witnesses as the real question[12] or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.[13]
[10](2008) 185 A Crim R 270, [26] (Warren CJ and Forrest AJA agreeing).
[11]R v Niass [2005] NSWCCA 120, [28] (Hunt AJA).
[12](1985) 159 CLR 507, 519 (Deane J).
[13]Ibid 515 (Brennan J).
The impugned direction was concerned with the choice between inconsistent statements of the same witness. Instructing the jury to determine which account ‘if any’ of the witness ‘to believe’ did not give rise to the need for a Liberato direction. It would be preferable if the jury had been instructed that the question for their determination was whether the inconsistencies identified raised a reasonable doubt about the complainant’s account rather than invite them to consider which, if any, of those accounts the jury believed. But the direction did not carry with it a danger that the onus of proof would be undermined. The direction made clear that it was for the jury to determine whether it was prepared to act upon any of the witness’s accounts.
Further, and having regard to the trial judge’s charge as a whole, there can have been no risk that the jury misunderstood its task or where the burden of proof lay. Throughout the charge, her Honour made abundantly clear that the inconsistent statements were to be used as affecting the complainant’s credit. For example, her Honour said:
While we are dealing with the subject of witnesses and credibility and reliability, it is an appropriate stage for me to give you a direction about what we call prior inconsistent statements…. The defence have raised these matters as affecting the complainant's credibility.
In respect of the evidence given by the complainant’s mother, the trial judge said:
[Defence counsel] submitted to you that you could compare the evidence of the mother and the complainant in this case and that there was an inconsistency there, there was a lack of reliability and that this was a matter that could go to the credit of the witnesses in this case, and I have already told you about prior inconsistent statements.
In respect of the psychologist’s evidence, her Honour said:
It is for you to determine whether the complainant made this statement to the psychiatrist, and whether it is consistent with the account he gave in court; if you do find it to be consistent, you can use the complainant's statement to Miss Novella when assessing his credibility. You may find the fact that he made a consistent statement reinforces his credibility; so it is the reverse of the inconsistent statement, if someone makes a statement that is consistent with their evidence that is a way in which it can be used.
Similarly, both the prosecutor and counsel for the defence explained how the evidence was to be used in their closing addresses. The prosecutor urged the jury to use the evidence of AV and Ms Novella as evidence of prior complaint, but not as specific evidence that the abuse occurred in the manner that those witnesses recalled. Defence counsel also stressed that inconsistencies between the complainant’s evidence and AV’s evidence went only to the complainant’s credibility.
Even if the direction were to be viewed as an irregularity it did not in my opinion give rise to a substantial miscarriage of justice. It could not have made a difference to the outcome of the trial.[14] The jury were extensively instructed as to how the prior inconsistent statements were properly to be used.
[14]Baini v The Queen (2012) 246 CLR 469, 479 [26]; Baini v The Queen [2013] VSCA 157, [8] (2).
This ground is not made out.
Ground 3
The appellant submits under cover of this ground that the convictions are unsafe or unsatisfactory because in the circumstances of the case a jury ought to have had a reasonable doubt about the reliability of the evidence of the complainant.
In determining whether to overturn a conviction on this basis, an appellate court must decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.[15] While making full allowance for the jury’s constitutional role and advantage in seeing and hearing the evidence, this Court is required to assess whether a jury must, rather than might, have entertained a reasonable doubt.[16]
[15]M v The Queen (1994) 181 CLR 487, 492.
[16]Libke v The Queen (2007) 230 CLR 559, 596-7; Rodi v The Queen [2011] VSCA 48, [19].
The appellant relies on a series of matters which he says leads to the conclusion that ‘even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.’[17] The first is what the appellant refers to as ‘the objective improbability of the circumstances’ of the abduction. The second relates to the inconsistencies in the accounts given by the complainant to Ms Novella and AV, as referred to at length above.
[17]M v The Queen (1994) 181 CLR 487, 494.
The allegations made by the complainant as to the circumstances of the attack were unusual. The appellant notes that the abduction occurred in daylight, near a park and a school, with the complainant’s brother and friends nearby, yet no-one witnessed the abduction or heard the complainant scream for help. The complainant, who was aged 7 or 8, was missing for a number of hours and returned home after dark, but was not missed by his family. When he arrived home, his mother did not notice any signs of distress or any physical marks on his body. The complainant and his brother continued to use the park without the complainant ever warning his brother about what had happened.
Other factors were highlighted by the appellant as casting doubt on the credibility of the complainant. There was no corroboration of the appellant’s account of the events on the day of the abduction and there was no evidence to support the complainant’s allegation. There was a delay of 15 years between the incident and the complainant’s statement to police. The complainant agreed that his brother had suggested to him that ‘Adam’ had been his abuser, and he had agreed. Finally, the appellant submits that the jury’s inability to reach a verdict on count 1, the charge of abduction, demonstrated that the jury had not wholly accepted the complainant’s account.
Notwithstanding the unusual features of the allegations made by the complainant, they do not constitute a ‘solid obstacle to reaching a conclusion beyond reasonable doubt.’[18] While the circumstances of the offences were strange, they were not implausible or so ‘objectively improbable’ as to of themselves necessitate a reasonable doubt.
[18]R v Klamo (2008) 18 VR 644, 654; R v Shah [2007] SASC 68, [4].
As to the prior inconsistent statements, the differences between the representations made by the complainant to AV and Ms Novella, and his evidence do not amount to contradictory accounts so infecting the complainant’s credit that the jury should have had a reasonable doubt. They can be explained as the inevitable inconsistencies that emerge when a story is re-told and affected by the passage of time. His representation to Ms Novella was in fact quite consistent with the evidence he gave during the trial. He told her that when aged 7 or 8 he was abused by a man named ‘Adam’ who lived in his neighbourhood.
Moreover, the complainant’s evidence to a large extent explained how any differences may have emerged. During cross-examination, the complainant was asked about the inconsistencies between his account of the incident and the notes taken by Ms Novella as to what the complainant had told her, and why he had not referred to the ‘thigh touching’ incident in his statement to police or at committal. The complainant denied that the second prior incident was a recent invention to justify his inconsistent account. He explained that he only raised it after finding out that Ms Novella would be called to give evidence. He said that he did not raise it earlier because the police were only interested in the major incident. After speaking with Ms Novella, who referred to there being multiple instances of abuse, he told the prosecutor about the thigh touching incident in order to clarify what he had told Ms Novella. The complainant said that he did not remember exactly what happened but has said that there were a couple of occasions where abuse had happened. He said that it was mentioned but that it was not discussed in any depth.
I should say something in this regard as to the Judge’s Report which was sent to the court before the hearing of the appeal. Her Honour reported that she considered the charge was balanced and fair and that her directions as to prior inconsistent statements did not affect the outcome of the trial. Her Honour also stated that ‘the complainant was an utterly convincing and credible witness.’
The appropriate content of a judge’s report was discussed by Crennan J in SKA v The Queen:[19]
First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned. The functions of such a report, when there is in existence an adequate system for reporting of court proceedings, have been summarised helpfully in Sloane:
"An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.
Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.
A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.
Otherwise, in times where there is in existence an adequate system for court reporting, occasion for the provision of a s 11 report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance."[20]
[19](2011) 243 CLR 400 (with whom French CJ, Gummow and Kiefel JJ agreed).
[20]Ibid 431 [112] (citations omitted).
As I said in GAP v The Queen,[21] where a trial judge has expressed an opinion on a matter on which the appellate court is in as good a position as the trial judge to form an opinion, the trial judge’s opinion should be given little or no weight by the appellate court.[22] Further it was not appropriate that the trial judge express an opinion on the very issues that it was for this court to resolve.
[21][2011] VSCA 173 (Neave and Hansen JJA agreeing).
[22]Ibid [46].
The issues at trial turned largely on the credibility of the complainant. The jury was at a significant advantage in seeing the complainant give evidence. None of the considerations raised by the appellant establish any deficiency in the complainant’s testimony that would lead this Court to doubt the conviction. The appellant has not established that the nature of the allegations or the quality of the complainant’s evidence was such that the jury must have had a reasonable doubt. This ground is not made out.
I would dismiss the appeal.
OSBORN JA:
I agree.
MACAULAY AJA:
I also agree with Redlich JA.
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