Randall (a pseudonym) v The King
[2023] VSCA 90
•27 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0025
| ALLEN RANDALL (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, T FORREST and R OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 March 2023 |
| DATE OF JUDGMENT: | 27 April 2023 |
| DATE OF REASONS: | 27 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 90 |
| JUDGMENT APPEALED FROM: | DPP v [Randall] (Unreported, County Court of Victoria, 21 October 2021, Judge Doyle) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Incest and related offending – Applicant appeared at trial on screen via video link from a remote facility – Screen located beside another screen displaying complainants’ evidence – Whether use of screen infringed the applicant’s right to silence – Whether use of screen tended to reverse onus of proof or dilute standard of proof – Whether trial judge failed adequately to direct jury on use of video link – Whether use of video link caused trial to miscarry – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr M Stanton and Mr J Riordan | ||
| Respondent: | Ms R Harper | ||
| Solicitors | |||
| Applicant: | Furstenberg Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA
R OSBORN JA:
Introduction
On 22 October 2021, following a 10 day trial by jury in the County Court at Morwell, the applicant was convicted of 15 charges of incest, one charge of attempted incest and one charge of indecent act with a child under 16.
The applicant now seeks leave to appeal against conviction on the basis that arrangements made for him to appear during part of his trial by way of a video link to cells caused the trial to miscarry. The proposed grounds of appeal are as follows:
1. The manner in which the applicant appeared at his trial amounted to a fundamental irregularity going to the root of the trial. In particular, the applicant’s appearance by audio visual link on a screen directly next to a screen playing the complainant’s (sic) recorded evidence:
(i) infringed the applicant’s right to silence;
(ii) tended to reverse the burden of proof; and/or
(iii) tended to dilute the standard of proof.
2.A substantial miscarriage of justice occurred by reason of the learned trial judge failing to direct the jury (or, in the alternative, failing to direct the jury adequately) in relation to the applicant appearing at his trial by audio visual link on a screen directly next to a screen playing the complainant’s (sic) recorded evidence.
For the reasons that follow, we do not accept that the proposed grounds are reasonably arguable and leave to appeal will be refused.
Background facts
The alleged offending comprised serial sexual assaults upon the applicant’s three de facto step daughters during a period that the family lived on a rural property. The three complainants were the principal prosecution witnesses. The applicant did not give evidence but a video recording of his record of interview was played to the jury.
During the course of the trial it became necessary to put in place a series of measures responding to COVID-19 pandemic restrictions.
These measures were adopted in a trial where evidence was given in person, by video link with remote witness facility and by pre-recorded video.
On the fourth day of the trial, the judge gave a general direction concerning the use of Webex links, and pre-recorded video for the purpose of presentation of evidence.
So these are all alternative arrangements, so I just give you this direction — it’s really just common sense. Those sorts of arrangements are made routinely, and as a matter of law you must not draw any inference adverse to the accused from the fact that these arrangements have been made or give the evidence any greater or lesser weight because of the arrangements. You treat the evidence in exactly the same way that you treat the evidence of any other witness in the proceedings, and that’s just common sense. And I’m sure you’ll understand that, but you will see a variety of different methods used to call evidence in the case. So I just give you that direction.[2]
[2]T246–7.
On the fifth day of the trial, the applicant was unable to be brought to court due to a COVID-19 exposure. The applicant then appeared remotely by way of a video link between the police cells and the courtroom. The link within the courtroom was visible on a screen located alongside another screen used for the display of evidence.
The arrangements were discussed with counsel and they were consented to on behalf of the applicant.[3]
[3]T389–90.
The fact that the two screens would be juxtaposed was apparent to the applicant’s counsel before the hearing recommenced and the effect of the juxtaposition must have been patent thereafter.
The link provided audio-visual contact between the accused and the courtroom. The jury was appropriately directed with respect to its purpose.
All right. Morning, members of the jury. Look, COVID’s had its impact on the operations of this court this morning. Firstly, there’s been an issue with exposure to COVID relating to [Mr Randall], so that he can’t be physically present in court. We’ve organised for him to appear from a different location. He’s linked in to the proceeding. You can see him. It’s so that he can see and hear what’s happening. So that’s the situation with [Mr Randall].[4]
[4]T406.
In turn, the accused was, in accordance with usual practice, visible and audible to those in the courtroom, and in particular, to the jury as triers of fact.
When the hearing resumed the remote evidence of the youngest complainant was displayed to the jury by video link.[5]
[5]T312.
Later that same day, the prosecution commenced adducing evidence from the eldest complainant by playing a video recording of a VARE conducted in May 2019 as her evidence-in-chief and playing a video recording of a special hearing conducted in December 2020 by way of cross-examination and re-examination.
The playing of the recording of the special hearing continued into the following day.
On that day, at one point, the jury made a request from the jury room concerning the appearance of the accused on screen, noting that it appeared the accused was covering his whole face with his face mask. The judge requested the accused adjust his mask. He did so. When the jury returned to the courtroom, the judge briefly addressed the jury’s request. The transcript reads as follows:
HIS HONOUR: All right, yes. Problem?
TIPSTAFF: Not a problem. The jury asks if [Mr Randall] could pull his mask down for a little bit, they say it looks like he’s covering his whole face.
HIS HONOUR: Okay. [Mr Randall] could you please just pull the mask down a little bit. Yes, I think that’s fin[e], thanks.
(At 2:42 pm the jury entered the court.)
HIS HONOUR: Members of the jury [Mr Randall] has just made an adjustment there; it has to be above the nose.
FOREPERSON: Thank you, Your Honour.[6]
[6]T506–7.
On the next day, counsel for the accused in discussion with the judge concerning the transcript of this incident, said:
MR CHISOLM: Yes. Your Honour, perhaps in respect of masks, you could say, just, again, everyone has to have masks on. [Mr Randall] doesn’t have a choice. All the staff have to have — everyone here has to have masks on. When they asked him to take his mask down yesterday, I re-read that, and it just struck an odd note. If its clear it’s – – –
HIS HONOUR: Do you think I need to — I might do it later. We’ll do it — sorry, Mr Chisholm, they’re about to come in.
MR CHISOLM: No. Yes, Your Honour.[7]
[7]T517.
In the event, no further direction was given to the effect that the accused was required to wear a mask and counsel’s request that a direction be given to this effect was not renewed.
No direction concerning the accused’s appearance on screen was sought before the judge’s charge under s 12 of the Jury Directions Act 2015.
Counsel for the accused did refer back in passing to the jury’s request relating to the applicant’s mask when seeking a Liberato direction.[8] The purpose of this reference was to obtain a direction about the record of interview. This direction was given.[9]
[8]T618. See Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193 and De Silva v The Queen (2019) 268 CLR 57.
[9]T892.
The judge’s charge also included the usual direction that the jury must act dispassionately and on the basis of the evidence.[10]
[10]T858–9.
No relevant exception was taken to the judge’s charge.
Ground 1
There is no dispute that the applicant was properly required to wear a mask.[11]
[11]See Tessa v DPP (Cth) [2022] VSCA 61, [24] (Priest and Beach JJA).
The applicant’s complaint is that the video screen procedure adopted effectively invited the jury to analyse the minutiae of the applicant’s reactions to the complainants evidence.
We do not accept this was so. There is no evidence that the image from the cells provided a close-up view of the accused. The mere juxtaposition of the images cannot be said to have created some unfair difference from the situation which pertains when an accused is present in court during evidence. In both situations one would expect the jury to primarily focus upon the witness giving evidence but for there to be some awareness of the accused’s demeanour and focus upon it from time to time (particularly in response to aspects of the evidence).
The fact no complaint was made about the video screen setup at trial to the effect now submitted is eloquent. If there was some apparent unfairness in the video screen setup one would expect counsel to have identified it at trial, and if necessary, sought to have had the jury discharged.
It is also submitted that the procedure adopted invited comparisons between the demeanour of a complainant and the accused during evidence given by the complainant. We are not persuaded of this proposition for essentially the same reasons. To which may be added, that it must have been obvious to the jury that the complainant was giving evidence and the accused was merely an observer. The juxtaposition of the screens did not imply that there could or should be a direct comparison of the demeanour of the complainant and the accused. Further, the wearing of a mask by the accused made such comparison difficult and unlikely, unless he engaged in some overt action.
Likewise, we do not accept the procedure adopted tended to reverse the onus of proof or dilute the standard of proof. These matters were properly dealt with in directions to the jury and there is no sensible basis for concluding that the video screen arrangements somehow subverted the directions.
The applicant submits that it can be inferred from the jury’s request that it was comparing the appearance of the accused with the appearance of the witness giving pre-recorded evidence. We do not accept that this inference is probable. The more probable inference is simply that the jury thought the accused looked odd. If some comparison was implicitly involved in the jury’s request, it was comparison with the other masked participants in the trial (who included the judge at least at some points in time).
Moreover, the same comparison may have arisen if the accused were present in court and masked in the dock.
The jury’s request does not demonstrate that the video screen setup adopted was unfair or inappropriate.
The jury were entitled to have regard to the accused’s behaviour in the course of the trial in assessing the evidence as a whole.[12] But the notion that the way the accused wore his mask at one point in the trial somehow influenced the jury’s decision with respect to charges of the gravity in issue, seems to us to be entirely fanciful.
[12]R v Iliev (1989) 41 A Crim R 383, 386 (Lee CJ at CL, Yeldham and Wood JJ agreeing); Bulejcik v The Queen (1996) 185 CLR 375, 380–1 (Brennan CJ).
No other aspect of the applicant’s demeanour during the trial, apart from the instance leading to the jury’s request, has been identified as raising any issue of the demeanour of the accused.
Ground 2
The applicant submits that in the circumstances of the case it was necessary for the judge to direct the jury:
a. That the applicant was required to wear a mask, and they were not to draw any inference adverse to him in relation to his wearing of a mask.
b. That it was no part of their task to draw comparisons between the complainant and the applicant and decide whose version of events or demeanour they preferred. Rather, the prosecution at all times bore the burden of proving the guilt of the applicant beyond reasonable doubt. This meant that even if they positively rejected the applicant’s record of interview, and even if they considered that the applicant’s reactions to the complainant’s evidence were not consistent with innocence, they were directed as a matter of law to put those matters to one side, out of their minds, and to consider whether the prosecution evidence had proved the applicant was guilty of the offences charged beyond reasonable doubt.
c. That the accused’s demeanour during the playing of the special hearing – positive or negative – was irrelevant to their task, given the following circumstances:
i. ordinarily an accused would be seated in the dock, and would not be shown next to the complainant as he or she gave her evidence;
ii. the applicant was appearing remotely due to circumstances beyond his control;
iii. any reactions or lack thereof were insignificant, given: - being an accused in a criminal trial is a stressful experience, for the guilty and for the innocent; - the applicant was required to wear a mask due to Covid-19 restrictions; - this was not the accused’s first time seeing the VARE and special hearing.[13]
[13]Applicant’s Written Case filed 16 March 2022, [24].
Insofar as it is submitted that the jury should have been directed that the applicant was required to wear a mask, so much must have been apparent to the jury in any event. After all, the jurors were told that the applicant had been exposed to COVID-19 and could not attend court. They were also told in response to their request that he adjust his mask, that the applicant was required to wear his mask above his nose.
Insofar as the further directions hypothesised are concerned, there was a potential forensic disadvantage to the applicant in highlighting by specific direction the incident which led to the jury’s request for him to adjust his mask.
Unsurprisingly, no direction in the terms now sought was ultimately pursued at trial.[14] In turn, no exception was taken to the charge. The inescapable inference is that counsel for the accused formed the view in all the circumstances of the case that the fact that the accused was wearing a mask was a non-issue, or alternatively, an issue that should not be highlighted.
[14]See s 12 of the Juries Directions Act 2015.
There was no reason to depart from the usual practice, which is not to give directions to juries concerning the accused’s demeanour unless there is a specific reason to do so.
There was no error in the failure of the trial judge to give directions which were not requested at the trial and related to a peripheral incidental circumstance concerning the mode of the applicant’s appearance.
Further, there was no arguable breach of s 16(1) of the Juries Directions Act 2015 which provides:
16 When trial judge must give direction regardless of parties' views
(1)The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.
Conclusion
Leave to appeal should be refused.
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