Ritchie (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0255

LEONA RITCHIE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and other relevant parties.

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JUDGES:	KAYE, WEINBERG JJA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2019
DATE OF JUDGMENT:	17 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 202
JUDGMENT APPEALED FROM:	DPP v Ritchie (a pseudonym) [2018] VCC 1866 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two charges of committing an act of gross indecency in the presence of a child under the age of 16 and two charges of incest – Prosecutor’s address alleging evidence of witness influenced by bias and collusion with accused – Witness cross-examined by prosecutor by leave under s 38 of the Evidence Act 2008 – Prosecutor did not put allegations of bias and collusion to witness – Whether breach of duty of fairness – Whether alleged incriminating conduct by accused – Intemperate language by prosecutor – Whether substantial miscarriage of justice – Whether trial judge gave erroneous directions to jury by conflating tendency and context evidence – Hearsay evidence – Whether unreliability evidence direction necessary – Whether trial judge’s directions on distress evidence adequate – Whether trial miscarried due to an accumulation of errors – Leave to appeal granted, appeal allowed – Browne v Dunn (1893) 6 R 67; Bugeja v The Queen (2010) 30 VR 493; Saddik v The Queen [2018] VSCA 249; Reid v Kerr (1974) 9 SASR 367; Thomas v Van Den Yssel (1976) 14 SASR 205; R v Robinson [1977] Qd R 387; Gardiner v The Queen (2006) 162 A Crim R 233; RWC v The Queen [2010] NSWCCA 332; Evidence Act 2008 ss 38, 67, 97, 101; Juries Directions Act 2015 ss 14, 21, 31 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC with Ms K A Blair	Doogue + George Defence Lawyers
For the Respondent	Mr C B Boyce QC	Mr John Cain, Solicitor for Public Prosecutions

KAYE JA:
WEINBERG JA
KIDD AJA

Following a trial in the County Court, the applicant was convicted of two charges of gross indecency, and two charges of incest. She was sentenced to a total effective term of imprisonment of six years and three months, with a non-parole period of three years and three months.

The applicant seeks leave to appeal against her conviction on each charge. The application for leave is based on five grounds, namely:

Ground 1:A substantial miscarriage of justice occurred as a result of comments and arguments made by the prosecutor in his final address.
Ground 2:The learned trial Judge erred in his directions as to the tendency evidence, by conflating evidence relied upon by the Crown as tendency evidence with evidence relied on by the Crown as context or relationship evidence.
Ground 3:The learned trial Judge erred at law in refusing to give an unreliability of hearsay direction.
Ground 4:The learned trial Judge erred at law in his directions on distress, in a number of ways.
Ground 5:The trial miscarried because of an accumulation of any, some or all of the grounds 1–4.

Background to offences

The complainant, in respect of each charge, is the stepson of the applicant. He was born in February 1972. The offending was alleged to have taken place between May 1985 and February 1987, when the complainant was between 13 and 15 years of age. The applicant was aged between 25 and 26 years during that period.

The complainant had two younger sisters, Michelle Ritchie, who is 18 months younger than him, and Louise Ritchie, who was four years younger. Louise Ritchie passed away in 2015.

The complainant’s parents, Robert Ritchie and Cathy McGee, separated in 1980, and they divorced in 1981. At the time of the offending Cathy McGee was living in Sunshine and subsequently in Bullengarook, which is located between Gisborne and Bacchus Marsh.

At some time in 1981 Robert Ritchie met, and formed a relationship with, the applicant. In due course they commenced living together, initially in various addresses in Reservoir, West Heidelberg and Alphington. Subsequently, they moved to a flat in Heidelberg Road, Ivanhoe, and later they resided in premises in Merther Road, Ivanhoe. They married in a church ceremony in May 1985.

After their parents’ separation, the complainant and his two sisters lived with their mother, and would spend time with their father and the applicant during access visits. Those visits occurred sporadically and irregularly, as the complainant’s father was involved in shift work. It was during those visits that the offences were alleged to have occurred.

Evidence of the complainant

The complainant gave evidence that, from the time that he first met the applicant, she paid him special attention, which she did not give to his sisters. He said that they always held hands, she made him sit on her knee and she would blow in his ear. She commented that he was good looking. She also physically touched him, rubbing his leg, sucking his earlobes and engaging in similar conduct. When they greeted each other, the applicant would kiss him with an open mouth rather than a peck on the cheek. On the other hand, when the applicant greeted his sisters, she gave them a quick kiss on the cheek. On the day of her wedding to the complainant’s father, the applicant said to the complainant that it should be he and her that were getting married and that they were ‘soulmates’.

The complainant stated that nothing of a sexual nature occurred between the applicant and himself while the applicant and his father were living in the Alphington premises. The first time on which he was engaged in sexual activity with the applicant was the subject of charge 1. It occurred on an occasion on which the complainant visited his father and the applicant in their flat in Heidelberg Road, Ivanhoe. He was then 13 or 14 years of age. The complainant stated that it occurred late at night. The applicant and he were alone in the lounge room, as his father was asleep in the bedroom. The incident occurred on a camp bed that was behind a sofa in the lounge room of the premises. He said that the applicant and he started to kiss each other, with the applicant having an open mouth using her tongue. She instructed him to put his tongue in her ear, suck on her earlobe and kiss her neck, going slowly down her body to her stomach. She then instructed him on how to give her oral sex.

In particular, the applicant told the complainant how to hold her vagina open and expose her clitoris, so that he could suck on it. At first, the applicant held herself open and pointed to what the complainant should do. During the incident, she said that if he did it that way, he could be a ‘stud and not a dud’ like his father. She had previously remarked to the complainant that his father was a ‘dud’ in bed, and she referred to her vagina as the ‘breakfast of champions’. The complainant said that while the applicant instructed him what to do, she held his finger and showed him what he was to do with his tongue to her clitoris. She explained the position of the G spot and told him he was to use his finger on it. The applicant told the complainant that he was to use his tongue to lick the alphabet on her clitoris, which he proceeded to do.

The complainant gave evidence that that occasion was not the only time that the applicant gave him detailed instructions and that they engaged in oral sex. He said that subsequently she instructed him a number of times on how to give her oral sex. On one occasion she told him that he had ‘graduated’, and that she could just lie back and enjoy what he was doing to her.

The incident, that was the subject of charges 2 and 3, occurred on an evening after the applicant had attended a Cyndi Lauper concert with the complainant and his two sisters in Melbourne in October 1986. The complainant was then 14 years of age. After the concert, the applicant and the three children all returned home to Merther Road, Ivanhoe. Later in the evening, the complainant and the applicant were alone in the lounge room. His sisters and his father had gone to bed, and the applicant and the complainant had stayed up to watch television. While they were doing so, they started kissing. The complainant gave the applicant oral sex, licking her vagina and her clitoris (charge 2 — gross indecency). He then had penile/vaginal sex with the applicant (charge 3 — incest).

The complainant gave evidence that that was not the first time that he had had penile/vaginal intercourse with the applicant. He said it had happened on at least about five other occasions.

Charge 4 (incest) involved an incident that occurred sometime between October 1986 and February 1987. The complainant was then about 15 years of age. He and his sisters were staying at the applicant’s house for an access visit with their father. On that occasion, the applicant gave the complainant’s sisters a $10 note and told them to go to the fish and chip shop. After his sisters left, the applicant instructed the complainant to lock the door. The applicant then walked up to the complainant, took him by the hand, and led him to the spare room, where there was a couch and a camp bed. They both removed their clothing and lay down on the camp bed. The applicant took hold of the complainant’s penis and put it in her vagina. While they were having sex, there was a knock on the door. The applicant pushed the complainant off her, stood up, scooped her clothes off the floor and ran into the bathroom. The complainant put his trousers on, unsnibbed the door and let his sisters in. When Michelle asked the complainant why the door was locked, he suggested that either she or Louise had snibbed it.

The last occasion, upon which the complainant said he had any sexual encounter with the applicant, was in about April or May 1988, when the complainant was 16 years of age. It was referred to, in the trial, as the ‘couch incident’ and was an uncharged act.

On that occasion, the complainant had visited his father’s home by himself, as his sisters were attending a gymkhana. One evening, late at night, while his father was in bed, the applicant and the complainant were sitting on the couch in the lounge room. They had a blanket over their legs. They were kissing, and touching each other, and they each had their pants and underwear down. The complainant’s father came into the lounge room, in order to go to the toilet. When he did so, the complainant pulled his trousers back on and told the applicant to do so, but she declined to. The complainant then sat back on the couch and put the blanket back over his and the applicant’s legs. When his father returned from the toilet to the lounge room, he said ‘What’s going on here?’. The complainant replied ‘Nothing’. His father then removed the blanket from them. When he noticed that the applicant’s pants and underwear were around her ankles, he said ‘So who seduced who?’. He asked the complainant whether he had seduced his wife. He also asked them how many times it had happened, and the applicant responded ‘Just once’.

As a result of that incident, the complainant’s father ordered him to leave the house, which he did. The complainant stayed overnight at the applicant’s brother’s house in Brunswick. On the following day he stayed at a friend’s house in Sunshine. While he was there, his mother telephoned him and told him she would pick him up. When she arrived, she said to the complainant ‘I spoke to your father and he told me about you and [Leona]’. She said that the complainant had to bear some of the blame because it ‘takes two to tango’.

The complainant also gave evidence of three occasions upon which he had discussed with other persons his relationship with the applicant. He said that the first person, who he told about it, was his friend CJ, when they were both about 18 years of age. On that occasion, they were at CJ’s parents’ house in Sunshine. CJ had been to a nightclub on the previous evening, and he said he had ‘picked up’ an older woman. In response, the complainant said that his stepmother could not keep her hands off him. CJ said that the older lady, with whom he had had his encounter, had ripped his clothes off him, to which the complainant remarked ‘That sounds like [Leona], she can’t keep her hands off me’. CJ asked the complainant if he could have a turn of having sex with the applicant.

The complainant stated that another friend, GJ, would comment regularly to him that he knew what he and the applicant were doing, and that he knew they were having sex. He would say ‘I can tell the way she kisses ya, the way she touches you and holds your hand’. The complainant gave evidence that he would deny to GJ that that had occurred. He said that those conversations took place when they were 15 years of age.

The complainant also stated that in about 1996 or 1997, he had a conversation with the applicant’s brother, JD, in his vehicle. JD said to the complainant ‘So is it true?’, to which the complainant responded ‘Is what true?’ JD then asked the complainant how he could do ‘that’ with his father’s wife.

The complainant also gave evidence that he sent his father a letter dated 9 March 2012, in which he spoke about his sexual relationship with the applicant and his feelings of guilt about it. In the letter he said that he wished to discuss that matter with his father.

Other prosecution witnesses

Cathy McGee, the complainant’s mother, gave evidence as to the aftermath of the couch incident. She said that in late April or early May 1988, her former husband, Robert Ritchie, telephoned her one morning and said ‘You need to come and get your son’. When she asked ‘Why?’, Robert Ritchie responded ‘Because I caught him and my wife in a compromising position on the couch last night’. Cathy McGee said that Robert Ritchie did not elaborate further on what he had told her. As a result of the telephone call, she drove to the Merther Road house. When she entered the house Robert Ritchie was very distressed and he was crying. He repeated what he had said on the phone, that he had caught the applicant and the complainant in a compromising position on the couch on the previous evening, but he would not elaborate further about it. Ms McGee asked Robert Ritchie where his wife was. He replied that she was not there, and that she had ‘Legged it over the fence and I haven’t seen her since’.

Subsequently, Ms McGee picked up the complainant. She told the complainant what Robert Ritchie had told her. The complainant became very upset and distressed. He broke down and would not talk about it. He threatened to commit suicide if she reported the matter to the police.

Ms McGee stated that a couple of days later Robert Ritchie telephoned her to say he had taken the applicant back into the home. He said that he knew that Ms McGee would think that he was stupid in doing so, but that he did not want to lose another house. Ms McGee also gave evidence that following that incident, Robert Ritchie and the complainant did not speak to each other for about one year. She said that when the complainant was about 18 years of age he started to talk more about the matter. He said that he thought that the applicant was sexy, that she flirted with him, and that it made him feel good.

Ms McGee gave evidence as to the letter written by the complainant to Mr Ritchie dated 9 March 2012. She said that the complainant had dictated the letter to her and she typed it on a computer. She gave evidence as to the contents of the letter (it was not tendered in evidence). She said that the letter referred to the complainant’s sexual relationship with the applicant, his feelings of guilt about it, and that he wanted to discuss it with Robert Ritchie.

Michelle Ritchie gave evidence relating to the incident that was the subject of charge 4. She stated that she could recall an occasion when the applicant sent her younger sister Louise and herself to the local shops to purchase fish and chips. Michelle was then about ten or eleven years of age. When she and Louise returned home half an hour later, the front door was locked, which was unusual. When she knocked on the door, it took some time for someone to open it. She said that her younger sister and she ended up sitting on the front step while waiting for the door to be opened.

In her evidence, Michelle Ritchie also said that the applicant always favoured the complainant, and that she liked him more than his sisters. The applicant and the complainant would go on long walks together, and she (Michelle) would not be allowed to join them. As a result, she was jealous of her brother. In cross-examination, Michelle said that she never saw the applicant give the complainant open mouth kisses, suck his earlobes, or sit him on her knee.

CJ gave evidence that the complainant and he first met in primary school, and they were close friends for many years. He recalled a conversation he had with the complainant when they were in the garage in the Ivanhoe premises. The complainant said to CJ ‘I have slept with my stepmother’. CJ said that the complainant said that in a shocked tone, as if he was disclosing a secret.

GJ gave evidence that he was friends with the complainant from the age of 12 to about the age of 15. They lived near each other in Bullengarook. When the prosecutor asked GJ whether he had a memory of a conversation about sexual contact between the complainant and his stepmother, GJ responded that he was unable to remember, but the complainant might have told him that. However, at that time, there were a number of traumatic matters affecting his own life, including his father having a serious injury in a car accident and his sister passing away.

The applicant’s brother, JD, did not give evidence. By agreement, evidence was led through the informant that JD, who was, at the time of the trial, 78 years of age, had no recollection of the conversation referred to by the complainant.

The final lay witness called by the prosecution was the complainant’s father, Robert Ritchie. He described an incident that occurred at the Merther Road home (the ‘couch incident’), which he said took place in 1988 or 1989.

Robert Ritchie said that the incident occurred on an evening in which he had already been at the hotel for some time. When he got home on that evening, he went to bed. Subsequently, he got up to go to the toilet. He entered the lounge room because he saw the light on. The complainant and the applicant were in the room sitting on the couch, with a blanket over them. Mr Ritchie said that he accused them of behaving inappropriately. In his evidence, he said he could not remember what he actually said to them. He said that he made that accusation because they had a blanket over their knees. He said that when he accused them of acting inappropriately, they each denied it. His next memory was that both the complainant and the applicant ‘vanished’. He said that they left because he was not listening to what they were each saying. Before they did so, Mr Ritchie had pulled the blanket off their knees. He said that he did not see anything untoward. They were simply sitting together on the couch. They were both fully dressed and they were not holding hands. He said he remembered at one stage that the word ‘asthma’ was used. He did not see any Ventolin pump, but that would not be unusual, because there was always a pump in the home.

Mr Ritchie said that as a result of the incident, he telephoned Ms McGee, and told her to come and collect the complainant. He said words to the effect ‘I found him in a compromising position with my wife’. Later, in his evidence-in-chief, Robert Ritchie answered in the affirmative to a question by the prosecutor whether he was ranting and raving at the time that he pulled the blanket off the knees of the complainant and the applicant.

Robert Ritchie said that, subsequently, he ‘came to his senses’, and the applicant returned to the home. After that night, he was estranged from the complainant for about twelve months.

At that point, the prosecutor made an application to cross-examine Robert Ritchie pursuant to s 38 of the Evidence Act 2008. The judge granted the prosecutor leave to cross-examine Robert Ritchie, limited to five topics, namely:

(1)Whether the applicant’s pants were around her ankles in a compromising position.
(2)Whether he saw asthma equipment in the lounge room.
(3)The nature of the conversation that he subsequently had with Ms McGee about why he had agreed to take the applicant back into his home.
(4)A conversation that he had in the city with the complainant some years later.
(5)The letter written to him by the complainant in March 2012.

In the course of that cross-examination, Robert Ritchie maintained that he did not see the applicant with her pants down. He said he did not see an asthma spacer or pump in the lounge room. He denied saying to Ms McGee, some days later, that he was back together with the applicant, because he did not want to lose another house. He said that in later years he met the complainant in the city on a couple of occasions, but he denied that on either occasion the complainant tried to raise with him the topic of his sexual relationship with the applicant. He said that after he had received the letter from the complainant dated March 2012, he had a meeting with the complainant. However, the sexual relationship between the complainant and the applicant was not discussed in the course of that meeting.

Ground 1

Ground 1 of the application for leave to appeal against conviction is that a substantial miscarriage of justice occurred as a result of comments and arguments made by the prosecutor in his final address. The ground is directed to a passage in the prosecutor’s address, in which he impugned the credibility of the witness Robert Ritchie, and, as a related matter, contended that the defence had proffered a false explanation for the couch incident, by suggesting (in cross-examination of the complainant) that, at the time that Robert Ritchie entered the lounge room, the complainant was suffering an asthma attack.

The prosecutor commenced that part of his address by telling the jury that the questions, that were put in cross-examination to the complainant about the asthma attack (‘puttage’), were not evidence. The prosecutor noted that the complainant’s evidence, denying that he had an asthma attack at the time, was not contradicted.

The prosecutor then turned to the evidence of Robert Ritchie. He commenced by suggesting that Robert Ritchie gave ‘a somewhat cramped, you might think self-serving, wife-serving, picture of what was actually going on’. He noted that the prosecution had an obligation to call all potentially relevant witnesses, but that did not mean that it accepted everything that a particular witness had said. He submitted that Robert Ritchie was not a reliable witness, and that his evidence was ‘artificial, indeed preposterous and it was deliberately self-serving, wife-serving and limited and completely unconvincing’.

The prosecutor submitted that Robert Ritchie had endeavoured to place ‘a falsely innocent gloss’ on what he had observed was happening on the couch, and on what had aroused his suspicions. He repeated that the evidence given by Robert Ritchie was ‘utterly hollow and self-serving and wife-serving, it was pasteurised, it was watered down as to what he really saw’.

The prosecutor then referred to the evidence of Robert Ritchie’s reaction when he entered the room, and saw the applicant and the complainant on the couch, and the evidence that he telephoned his ex-wife to say that he had found the complainant and the applicant in a ‘compromising position’. The prosecutor submitted that even if Robert Ritchie was intoxicated, what he had observed would not have been compromising if he was telling the truth. So, he submitted, Robert Ritchie had ‘watered it down to serve his wife’s interest’.

It was in that context, that the prosecutor referred to the questions, put by defence counsel in cross-examination of the complainant, that at the time of the couch incident the complainant had an asthma attack. The prosecutor also noted that, according to Robert Ritchie, when he and the applicant got back together, there was no suggestion that what he had observed was an asthma attack. Thus, he contended that the suggestion, that there was an asthma attack (as was put to the complainant in cross-examination), was ‘preposterous’.

The prosecutor then continued to criticise the evidence of Robert Ritchie. He noted that, notwithstanding the letter that Robert Ritchie had received from the complainant, he said he did not talk to the applicant about the couch incident. The prosecutor also noted that Robert Ritchie disagreed with the evidence of David Ritchie that when they subsequently met, there was discussion about the complainant’s relationship with the applicant. The prosecutor added that there was then no discussion that the couch incident was in fact brought about by the complainant having suffered an asthma attack. The prosecutor then concluded that aspect of his trial address by contending to the jury:

So again I submit the evidence that you heard from [Robert Ritchie] is preposterous. And indeed I submit that this innocent explanation for the couch incident is made up in order to answer these charges. It’s made up in order to answer these charges, it’s a false making-up of a story which is the basis of the puttage, as I say it’s not evidence, to answer these charges and to answer the compelling couch incident.

The prosecutor then made submissions to the jury concerning the evidence of the uncharged acts, and the use which the jury would be permitted to make of that evidence. In that context, he returned to the evidence relating to the couch incident. In doing so, he said the following to the jury:

So according to the defence cross-examination, the questions, [the complainant] has falsely … turned an innocent asthma attack, because that’s what was put was happening — has falsely turned an innocent asthma attack and being helped for an asthma attack, where his innocent stepmother is helping him and he’s turned that falsely into a sexual encounter. Well, again I submit that the incident that he’s — it’s a preposterous suggestion. It’s only a suggestion, but it’s still preposterous. The incident that he’s described is beyond invention — beyond invention. I submit, as I’ve already said, the asthma scenario was invented in order to defend these charges. It’s a compelling incident in himself (sic) and it rings true and is beyond anything he could invent.

At the conclusion of the prosecutor’s address, counsel for the applicant took exception to the passages to which we have referred. She contended that the prosecutor had ‘gone too far’ in his criticism of Robert Ritchie. She submitted that his attack had gone ‘carte blanche’, and was as such inappropriate and should be corrected. The judge stated that he would consider the matter overnight, and counsel for the applicant then commenced, but did not complete, her final address to the jury.

On the next morning, (Friday 5 October), counsel for the applicant distributed a written submission to the prosecutor and to the judge. In it, she set out some factual errors that she submitted had been made in the prosecutor’s address. She also contended that the jury should be directed to ignore some of the arguments made by the prosecutor in respect of Robert Ritchie and the use made by the prosecutor of the questions asked of the complainant concerning the asthma attack.

In argument when the trial resumed, counsel submitted to the judge that the prosecutor was only entitled to criticise the evidence of Robert Ritchie concerning the specific aspects in respect of which he had been cross-examined, as an unfavourable witness, pursuant to s 38 of the Evidence Act. She noted that the prosecutor, in that cross-examination, had not put to Robert Ritchie that he had diluted his evidence in order to protect his wife. Accordingly, she submitted, the prosecutor was not permitted to make that argument in final address. Counsel further contended that the prosecutor had, in effect, submitted to the jury that the explanation proffered for the couch incident — that the complainant was suffering an asthma attack — was something recently invented by the defence. She submitted that that argument by the prosecutor was impermissible, because no evidence had been given proffering that explanation. Thus, it was contended, it was inappropriate and unfair for that suggestion to be made by the prosecutor in final address.

Having heard those submissions, the judge, in effect, told counsel for the defence that she would be entitled to make submissions to him as to what he should say in his charge to the jury, but that she should continue her final address. Counsel then completed her final address to the jury, and on the same day (Friday) the judge commenced, but did not complete, his charge.

After the jury left the court for the luncheon adjournment on that day, there was further discussion concerning the matters raised by defence counsel. In the course of that discussion, the prosecutor accepted that he had, in effect, suggested to the jury that the explanation of the asthma incident (that was put in cross-examination to the complainant) was a recent invention by the defence. He contended that as Robert Ritchie did not say that he had observed the complainant having an asthma attack, the questions put to the complainant in cross-examination must have come from instructions given to counsel by her client. He also defended the nature of the arguments that he had made attacking the credibility of Robert Ritchie.

In response, counsel for the applicant again contended that the arguments made by the prosecutor, impugning Robert Ritchie’s credit, should have been restricted to the specific matters in which he had been granted leave to cross-examine Robert Ritchie pursuant to s 38 of the Evidence Act. She submitted that the prosecutor acted improperly by using ‘intemperate’ and ‘inflammatory’ language, and by making a ‘full-blown credit attack’ on Robert Ritchie. The case was then adjourned to the following Monday.

When the trial resumed on that day, counsel for the applicant submitted that the judge should discharge the jury without verdict, on the basis of the ‘inflammatory and intemperate’ language used by the prosecutor in conducting a ‘complete character assassination of [Robert Ritchie]’. She again contended that the prosecutor had exceeded the permissible limits by attacking Robert Ritchie on matters which had not been the subject of the s 38 cross-examination by the prosecutor. She also contended that the arguments made by the prosecutor, concerning the suggestion that the complainant was suffering an asthma attack at the time of the couch incident, were tantamount to a suggestion by the prosecution that the applicant had engaged in ‘incriminating conduct’, by, in effect, seeking to raise a false explanation for that incident.

The judge refused the discharge application. He also declined to instruct the jury to disregard the arguments made by the prosecutor concerning Robert Ritchie because, he considered, those arguments were open on the evidence.

His Honour then resumed his charge to the jury. In the course of doing so, he reminded the jury of the content of the closing submissions. He said that the prosecutor had used ‘strong language’, but that he was entitled to do so. He then summarised the submissions made by the prosecutor concerning the complainant’s evidence, and the evidence of the other witnesses called on behalf of the prosecution. Having done so, he noted that the prosecutor had ‘attacked’ the evidence given by Robert Ritchie, and stated ‘you can make your own assessment of [Robert Ritchie]’. He reminded the jury that the prosecutor had submitted that Robert Ritchie’s evidence had put an ‘innocent gloss’ on the events and that he had ‘watered down his account’, and that the prosecutor had submitted that the jury should reject his evidence that there was an innocent explanation for the couch incident.

On this application, the applicant relied, substantially, on the same arguments, in support of ground 1, that had been advanced to the trial judge, and which we have summarised.

In short, counsel for the applicant submitted that the attack by the prosecutor on the evidence given by Robert Ritchie constituted a breach of his duty to present the case in a fair and impartial manner, in four particular respects. First, it was contended, the prosecutor, repeatedly, used impermissibly inflammatory and intemperate language, describing Robert Ritchie’s evidence as self-serving, wife-serving, and preposterous, and by contending that he had pasteurised his evidence which constituted ‘self-serving drivel’. Secondly, the prosecutor impermissibly put to the jury that the evidence given by Robert Ritchie was untruthful, in circumstances in which he had not put that proposition to Robert Ritchie in cross-examination. Counsel contended that the prosecutor’s submissions, in respect of Robert Ritchie’s credit, should have been confined to the specific topics in respect of which leave had been given to him, by the trial judge, to cross-examine the witness. Thirdly, and connected with that, the prosecutor impermissibly put to the jury that Robert Ritchie should not be believed because his evidence was biased or tailored to assist his wife, in circumstances in which the prosecutor had not put that proposition directly to him in cross-examination.

Fourthly, counsel for the applicant contended that the prosecutor breached his duty of fairness, in addressing the jury concerning the questions that had been put to the complainant in cross-examination suggesting that at the time of the couch incident the complainant had suffered an asthma attack. Counsel for the applicant submitted that the prosecutor, in advancing those submissions, breached his duty in a number of respects. First, he contended, there was no basis for the prosecutor to suggest to the jury that the propositions put to the complainant constituted an ‘invention’ or ‘recent invention’ by or on behalf of the accused, because no evidence was given at the trial advancing that explanation for the couch incident. Counsel thus submitted that the contention, that the explanation was invented or manufactured to explain the couch incident, was misconceived, because it was not ‘tethered’ to any evidence given in the trial. Further, counsel contended that the submission, advanced by the prosecutor, was tantamount to one of recent invention, and thus constituted an allegation that the applicant had engaged in incriminating conduct by inventing a false explanation for the couch incident out of a consciousness that the truthful explanation would incriminate her. In addition, counsel contended that the submissions made by the prosecutor were capable of conveying to the jury that the applicant and Robert Ritchie had colluded together to manufacture, and put before the court, a false explanation for the dramatic reaction by Robert Ritchie to what he thought he had seen on the evening of the couch incident.

In response, counsel for the respondent submitted that the prosecutor did not, in his final address, contravene his duty of fairness or engage in any inappropriate argument. In the first place, counsel contended that, in order to comply with the rule in Browne v Dunn,[2] it is not necessary for a cross-examiner to put to the witness that their version of events is in issue, if, in the circumstances of the case, it is apparent that the witness’ version is the subject of attack by counsel. In such a case, it was submitted, it would be futile to put a direct question, suggesting that the witness has been untruthful. Such a question would be met by a bare denial. In the present case, it was contended, it was clear to Robert Ritchie that his version of events was in issue, and that it was being imputed that his evidence was being tailored to assist the applicant. Counsel for the respondent further contended that while the language used by the prosecutor was robust, nevertheless it did not trespass beyond the boundaries of the type of advocacy that is permissible in our courts. Counsel for the respondent further contended that insofar as the prosecutor put to the jury that Robert Ritchie had tailored his evidence to assist the applicant, it was not necessary for him first to have put that proposition to Robert Ritchie in cross-examination. In particular, it was clear to Robert Ritchie that the prosecutor was seeking to impugn his evidence both during evidence-in-chief and in cross-examination under s 38 of the Evidence Act. The effect of Robert Ritchie’s evidence was to assist the case of the applicant. As such, it was contended, it was not necessary for the prosecutor to put, directly, to Robert Ritchie that his evidence was untruthful because he was endeavouring to assist his wife.
[2](1893) 6 R 67 (‘Browne v Dunn’).

Counsel for the respondent also contended that the prosecutor did not err in the submissions that he made in respect of the suggestion, that had been put to the complainant in cross-examination, that at the time of the couch incident he was suffering an asthma attack. Counsel referred to the principle that, ordinarily, specific questions, put to a witness, suggesting a different version of events, may be inferred to be based on specific instructions given to counsel by the client. Further, based on the decision of this Court in R v Quinn,[3] it is open to a prosecutor to contend (and for the jury to infer) that such instructions, which form the basis of specific questions put to a witness, have been recently invented by counsel’s client, provided that an appropriate factual basis is laid for that inference. Counsel for the respondent contended that the argument as to ‘recent invention’ was sustainable. If the version of events, which substantiated the puttage, had been true (that is, at the time of the couch incident, the complainant suffered an asthma attack), the applicant would have told Robert Ritchie about it, particularly in light of the turmoil that resulted when Robert Ritchie came upon the applicant and the complainant sitting together on the couch on the evening of that incident.
[3](Unreported, Supreme Court of Victoria Court of Appeal, Brooking and Batt JJA and Vincent AJA, 10 October 1997).

Counsel for the respondent further contended that the suggestion, that the asthma attack was ‘recent invention’, did not constitute a submission that the applicant had engaged in incriminating conduct. Counsel also contended that the prosecutor did not, in that section of his address, either allege, or imply, that Robert Ritchie had colluded with the applicant to provide a false explanation for his reaction to the couch incident. Rather, it was contended, the submissions, concerning the questions put to the complainant in cross-examination about the asthma attack, were directed by the prosecutor, to the applicant.

The submissions advanced on behalf of the applicant, in support of ground 1, were, effectively, directed to two interrelated aspects of the final address made by the prosecutor relating to the evidence of Robert Ritchie. The first aspect concerns the arguments by the prosecutor to the jury impugning the credit of the account given by Robert Ritchie concerning the couch incident. The second aspect concerns the arguments, by the prosecutor, in respect of the questions that had been put to the complainant in cross-examination suggesting that there was an innocent explanation for that incident, namely, that at the time the complainant was suffering an asthma attack. While those two issues were interrelated in the section of the prosecutor’s final address to which exception is now taken, it is convenient, at this stage, to consider them separately.

The submissions by the applicant concerning the first aspect of the prosecutor’s address — the attack by the prosecutor on the credit of Robert Ritchie — are, in effect, based on three points, namely, first, the breadth of the attack, secondly, the allegation (in final address) that Robert Ritchie’s evidence was untruthful and biased, and, thirdly, the language used by the prosecutor in that section of his final address.

The principles, that apply to those issues, are uncontroversial. First, it is a fundamental aspect of our criminal justice system that a prosecutor, by occupying the role as a ‘minister of justice’, has an obligation to present the case of the prosecution in a manner which is fair to the accused.[4]
[4]R v Apostilides (1984) 154 CLR 563, 576–7; Richardson v The Queen (1974) 131 CLR 116, 119; R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ); Meyer (a pseudonym) v The Queen [2018] VSCA 140 [258] (Priest and Kaye JJA).

In Bugeja v The Queen, Weinberg JA (with whom Bongiorno JA agreed) in considering a ground of appeal based on conduct by a prosecutor at trial, stated:

The starting point, in relation to a ground of that type, must be to consider the role of prosecuting counsel. As has been said many times before, that role differs from that of an advocate representing an accused person in a criminal matter. The prosecutor represents the State. His or her duty is to act fairly and impartially place before the jury all relevant and cogent evidence, and not to obtain a conviction by any or all means. Having presented the evidence, the prosecutor should then address the jury as to how it should be viewed, but always doing so in a manner that is scrupulously fair.[5]

[5]Bugeja v The Queen (2010) 30 VR 493, 503 [56].

The second, associated, principle, is that in presenting the prosecution case, a prosecutor must not address the jury in a manner that is intemperate, inflammatory or emotive, or which might excite prejudice against an accused, or sympathy for a victim or for the cause of the prosecution.[6]
[6]R v Livermore (2006) 67 NSWLR 659, 667–8 [31], [35]–[36]; Basic v The Queen (2015) 251 A Crim R 91, 102–3 [64] (Priest JA); Paulino v The Queen [2018] VSCA 306 [142].

Thirdly, as part of its duty of fairness, the prosecution is ordinarily required to call all relevant witnesses in the trial, unless there are sound reasons for not doing so. Accordingly, as a corollary to that, the prosecution is not obliged to accept, or warrant, the truthfulness of the evidence given by any particular witness called by it.[7]
[7]R v Le (2002) 54 NSWLR 474, 486–7 [68] (Heydon JA); Saddik v The Queen [2018] VSCA 249 [79] (Kaye and Niall JJA).

Fourthly, ordinarily, a prosecutor should not, in final address, attack the credit of a prosecution witness without first having afforded that witness the opportunity to respond to the substance of the criticism.[8]
[8]Smith v The Queen [2018] VSCA 139 [76]; De Vries v The Queen [2013] VSCA 210 [21]; Saddik v The Queen [2018] VSCA 249 [91], [95]–[102] (Kaye and Niall JJA).

That fourth principle is closely allied to the rule in Browne v Dunn, which, similarly, is based on the concepts of procedural fairness. In essence, it would be unfair — and thus contrary to their duty — for a prosecutor, in final address, to impugn the truthfulness or integrity of a witness without first giving that witness the opportunity to respond to that criticism. In the context of a criminal trial, that duty of fairness is owed, not just to the witness, but, importantly, to the accused, since ordinarily a witness, who is not assisting the prosecution case, will, thereby, be perceived to be assisting the case of the accused.

Accordingly, the rule in Browne v Dunn ordinarily requires counsel, who intends to criticise the truthfulness of a witness, to first put such an imputation to the witness. In an often cited passage, Wells J, in Reid v Kerr, stated:

It has always seemed to me that if some kind of imputation is to be made against a witness, then, at some stage — ultimately — the precise nature of that imputation should be made clear to the witness so that he is given an opportunity to meet it and, if he can, to explain it or destroy it. Several times during August I observed questions that half hinted at some imputation, and yet that imputation was never followed up, was never carried through, and was never put fairly and squarely to a witness so as to enable him to cope with it. Then what was sought to be done was that such answers as the witness was able to give with respect to the hinted imputation were used as the basis for an address to the jury and inviting them to draw an inference that carried the imputation. I regard such a course of cross-examination and address as unfair. It represents the sort of conduct described by Alexander Pope in the well-known passage in which he condemned those who were willing to wound, and yet afraid to strike. I do not for one moment suggest that counsel should abandon the arts and fair devices of cross-examination. I am well aware that there are more ways of taking a fort than by frontal attack, but I also hold it to be a fundamental principle that, when all arts and devices of cross-examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some fair manner, he should be given the opportunity of meeting the implication and answering it.[9]

[9]Reid v Kerr (1974) 9 SASR 367, 374.

As Wells J stated in that passage, it is not always necessary for counsel (and thus, in a case such as this, the prosecutor) to put the imputation explicitly to the witness, provided that the witness is able to readily understand that his or her evidence is being impugned. In Thomas v Van Den Yssel, Bray CJ (with whom Jacobs J and King J agreed) stated:

And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, “I put it to you that your evidence is false”, or “I suggest that that is a deliberate lie” or the like.[10]

[10]Thomas v Van Den Yssel (1976) 14 SASR 205, 207. See also Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 225 (Glass JA), 236 (Mahoney JA); Lazarevic v The State of Western Australia [2007] WASCA 156 [17]–[20] (McLure JA); SAM v The State of Western Australia [No 2] [2016] WASCA 64 [41] (Corboy J).

The question, then, is whether, in seeking to impugn the credibility of the account given by Robert Ritchie as to the couch incident, the prosecutor failed to comply with the principles that we have discussed.

In addressing that issue, two points are quite clear. First, at the time at which the prosecutor cross-examined Robert Ritchie, it must have been abundantly clear, both to the witness and to the defence, that the prosecutor did not accept the truthfulness of the account given by Robert Ritchie as to that matter, and that the prosecutor was, by his questioning, seeking to impugn that account. However, and secondly, at no time during his questioning of Robert Ritchie, did the prosecutor put to the witness, either specifically or even by implication, that he had tailored his evidence in order to assist the case of the applicant. In other words, the prosecutor never put to Robert Ritchie that his evidence was affected by bias in favour of his wife, the applicant.

Each of those points are, we consider, quite evident from the transcript. In particular, it is clear, and would have been clear to the witness and to defence counsel, that the prosecutor, by his questioning of Robert Ritchie, was seeking to impugn the credibility of the account given by that witness concerning the couch incident. In a section of the examination-in-chief conducted of Robert Ritchie — which are contained in seven pages of the transcript — before the prosecutor sought leave to cross-examine the witness under s 38 of the Evidence Act, the prosecutor asked a series of questions, that verged on cross-examination, directed to the credibility of that account.

In that passage of the evidence, the cross-examiner addressed topics, including: whether the complainant suffered an asthma attack; the circumstances in which both the complainant and the applicant left the house shortly after Robert Ritchie had observed them on the couch together; the nature of the conversation that Robert Ritchie had with Cathy McGee on the telephone, and later at his home, as to finding the applicant and the complainant on the couch in a ‘compromising position’; whether the witness had any discussions, subsequently, with the applicant as to her version of what had occurred in the couch incident; conversations that the witness subsequently had with Cathy McGee as to why he had got back together with the applicant (Cathy McGee having given evidence that the witness told her that he had reconciled with the applicant so that he would not lose another house); conversations between the witness and the complainant, and in particular, whether in the course of those conversations, the complainant discussed his sexual relationship with the applicant (which the witness denied); and whether, when the witness discovered the applicant and the complainant together on the couch, he was ‘ranting and raving’ when he pulled the blanket up (which the witness accepted).

It was after that series of questions, that the prosecutor sought leave to cross-examine the witness under s 38. The judge, unsurprisingly, responded ‘I thought you had been cross-examining him all the time anyway …’.

Having been granted leave to cross-examine the witness on specific topics, the prosecutor addressed those topics. We have summarised the evidence given by Robert Ritchie, at that point, earlier in these Reasons.[11] In particular, it was put, directly to the witness, that he told his former wife Cathy McGee that he had found the applicant and the complainant in a compromising position, because he saw the applicant with her pants and underwear down when he removed the blanket. The prosecutor put, to the witness, that he told Cathy McGee that he and the applicant were back together again, because he did not want to lose another house. The prosecutor also put to the witness that the complainant had subsequently sought to raise with him his sexual relationship with the applicant. The prosecutor suggested that in a meeting with Robert Ritchie, the complainant raised that topic, and the witness ‘fobbed it off’. The questions were directly put, albeit that the cross-examination did not pursue those topics in any detail. Nevertheless, neither the witness, nor the defence, could have been under any misunderstanding that the prosecution had sought to impugn the credibility of the evidence of the witness in respect of the couch incident and its aftermath.
[11]Above [34].

In those circumstances, it was not necessary for the prosecutor to directly put to the witness questions along the lines that he was not telling the truth. During the series of questions put in examination in chief, and the questions put to him in cross-examination under s 38 of the Evidence Act, the witness was given ample opportunity to respond to various propositions put to him by the prosecutor that were clearly designed to contradict or qualify the evidence that he had given. There was, we consider, no point which would have been served by the prosecutor directly putting to the witness a question such as ‘I put it to you that you are lying’. By the responses that he had made to the questions put to him, the witness, implicitly, had rejected that suggestion. The question whether he was being truthful or not was thus well and truly before the jury.

However, the prosecutor, in his final address, went further than advancing a contention to that effect. He also contended that the witness had tailored his evidence in order to assist the case of the applicant. On three occasions, he described the witness’ evidence as ‘wife-serving’. The prosecutor then put to the jury that Robert Ritchie had ‘watered (his evidence) down to serve his wife’s interest’. In that way, and with that repetition, the prosecutor made it plain, in final address, that he was contending that Robert Ritchie had given untruthful evidence out of loyalty to the applicant, and in order to assist her case. At no time, in the course of questioning the witness, did the prosecutor put to him, either directly, or even indirectly, that his evidence was affected by such bias.

In our view, in order to comply with his duty of fairness, the prosecutor was obliged to have put that proposition directly to the witness, so as to give him the opportunity to respond to it. As we have stated, it was quite evident that the prosecutor was seeking to impugn the credibility of Robert Ritchie as to the evidence that he gave concerning the couch incident and its aftermath. The evidence that he gave assisted the case of the applicant, who is his wife. On the face of it, the evidence of Robert Ritchie, concerning the couch incident, and concerning what subsequently occurred, seemed quite contrived and improbable, as, indeed, was pointed out by the prosecutor in his final address. It might be fairly observed that the inference, that Robert Ritchie had tailored his evidence to support the applicant, was particularly strong. Nevertheless, the prosecutor’s duty of fairness required him to have put the proposition directly to the witness, so that the witness could have had the opportunity to respond to it, before that proposition was advanced in final address.

The omission by the prosecutor, to put that proposition to the witness in cross-examination, was one of substance, and not just form. It is quite conceivable that, if the proposition had been advanced to him, Robert Ritchie might have made a response to either contradict, or put in issue, that proposition. It is possible to conceive of a number of responses that Robert Ritchie could have made to an allegation that his evidence was coloured by feelings of bias towards the applicant. The omission by the prosecutor, to give Robert Ritchie the opportunity to respond to those questions, was a matter of some moment in the context of the trial. As we have noted, the evidence of Robert Ritchie concerning the couch incident, was quite improbable. If, however, Robert Ritchie had been able to provide a plausible response to the proposition, that his evidence was affected by feelings of loyalty to the applicant, and if the jury accepted that response, it is possible that the jury might have given further credibility to Robert Ritchie’s explanation, in his evidence, that, being affected by the consumption of alcohol, he had overreacted to what was, in all the circumstances, an innocent incident.

The other complaint, made by the applicant in respect of the section of the prosecutor’s final address relating to the credibility of Robert Ritchie, concerns the terms in which the prosecutor advanced his submissions in respect of the couch incident. The language used by the prosecutor was, undoubtedly, robust. Certainly, there is, and should be, scope for a prosecutor to engage in the arts of advocacy in advancing the case on behalf of the Crown. However, it is important that by doing so, a prosecutor not contravene the principles to which we have referred. In particular, the prosecutor must not resort to language that is intemperate or emotive, so as to impermissibly distract the jury from its duty to rationally consider the evidence that has been put before it.

In the present case, there is cause for criticism, not only of the nature of the language used by the prosecutor, but, particularly, of his repetition of it in the course of the part of his address in which he impugned the credit of Robert Ritchie. The resort by the prosecutor, not only to that language, but also to such repetition, was quite unnecessary and inappropriate. The prosecutor had available, and indeed put, strong arguments as to why Robert Ritchie’s evidence, concerning the couch incident, should not be accepted. In particular, his evidence was entirely inconsistent with the nature of his reaction when he observed his son and his wife together on the couch, and with what he subsequently said to his former wife about those observations.

In our view, the nature of the language used by the prosecutor, and his resort to excessive repetition, contravened the principles that we have discussed. It is language that went beyond what was appropriate, and is to be deprecated. It does not follow, however, that the prosecutor’s rhetoric, in the passage of his address which is in question, was likely to have diverted the jury from its task of calmly and dispassionately assessing the evidence, and analysing the issues in the trial.[12]
[12]

The second aspect of the final address, that is the subject of ground 1, relates to the submissions made by the prosecutor to the jury concerning the questions that had been put to the complainant, in cross-examination, suggesting that the couch incident was susceptible of an innocent explanation, namely, that at that time the complainant was suffering from an asthma attack.

In cross-examination, counsel for the applicant put to the complainant, quite directly, that on the occasion of the couch incident, he had suffered an asthma attack earlier that evening while he was at home with the applicant. The complainant denied that suggestion. He accepted that he did, generally, suffer from asthma, and that it had previously caused him to be hospitalised. He then denied the proposition put to him, directly by defence counsel, that at the time of the couch incident the applicant was administering Ventolin to him via a ‘spacer’ attached to a pump. It was then suggested that when Robert Ritchie entered the room, ripped off the blanket, and accused the applicant and the complainant of acting in a manner that was untoward, the applicant slapped him on the face and called him a ‘pervert’. Again, the complainant denied that suggestion. He then went on to say that he always administered his asthma medication himself, that he did not need help to do so, and that he had always refused to use a spacer in doing so. That passage of cross-examination of the complainant covered almost one page of the transcript.

It was in that context that the prosecutor, in his final address, made the submissions to the jury concerning that ‘puttage’, in the terms that we have already summarised.[13] On this application, counsel for the applicant has contended that the submissions, so made by the prosecutor, were in breach of the prosecutor’s duty, in three particular respects. First, it was contended, the prosecutor, by those submissions, inferred that the suggestion of the asthma attack was a recent invention by the defence, in circumstances in which there was no evidentiary basis for that proposition. Secondly, by suggesting that the explanation constituted a recent invention by or on behalf of the applicant, the prosecution was attributing to the applicant incriminating conduct, namely, the fabrication of a false explanation for the couch incident because she knew that the true circumstances, of that incident, implicated her in the offences. Thirdly, it was contended, in that part of the submissions, the prosecutor was wrong to have invited the jury to conclude that the applicant and Robert Ritchie had colluded together to fabricate an innocent explanation for the couch incident, without having put that proposition to Robert Ritchie in cross-examination.
[13]Above [40]–[42].

It was common ground on this application, that the prosecutor contended to the jury that the proposition, that was advanced in cross-examination to the complainant — that he was suffering an asthma attack at the time of the couch incident — was an invention by or on behalf of the applicant. The prosecutor made that argument in express terms in the passage in his address which we have set out above, by contending that that explanation was ‘… made up in order to answer these charges, it’s a false making-up of a story … to answer these charges and to answer the compelling couch incident’. Further, it is clear, and again it is common ground, that the prosecutor contended to the jury that the asthma explanation, put in cross-examination, was a recent invention. In particular, in the same passage, the prosecutor reminded the jury that at no time, since the couch incident, had the applicant told Robert Ritchie that the complainant was suffering an asthma attack at the time of the incident.

The first question is whether the prosecutor was entitled to advance such a proposition to the jury, notwithstanding that the applicant herself did not give evidence, and notwithstanding that there was no evidence adduced on behalf of the applicant to support the explanation that had been suggested to the complainant in cross-examination.

It is well established that when cross-examining counsel puts to a witness particular facts or circumstances, counsel, in doing so, acts on the basis of their instructions. In those circumstances, ordinarily, a court is entitled to infer that propositions, so put by cross-examining counsel, are the subject of instructions given to that counsel by the client.

The relevant principle was stated in R v Robinson by Dunn J (with whom Wanstall ACJ and Douglas J agreed) in the following terms:

… cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation — a strict obligation — that, if he “puts” occurrences to witnesses, he “put” them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy … ) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence.
The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters).[14]

[14]R v Robinson [1977] Qd R 387, 394. See also R v S [1995] 1 Qd R 558, 561; R v MAP [2006] QCA 220 [57] (Keane JA); R v Ali (No 2) (2005) 13 VR 257, 263 [21] (Charles JA); R v Morrow (2009) 26 VR 526, 542 [57] (Redlich JA); Chong v CC Containers Pty Ltd (2015) 49 VR 402, 461–2 [203].

In the context of a criminal trial, care must be exercised in applying the principles in Browne v Dunn, including those to which we have just referred, with the same rigour as they are applied in civil litigation.[15] Nevertheless, in the present case, it would have been open to the jury, in appropriate circumstances, to infer that the instructions, concerning the asthma attack ‘puttage’, must have been provided to defence counsel by the applicant.
[15]MWJ v The Queen (2005) 222 ALR 436, 440 [18], 449 [41]; R v Morrow (2009) 26 VR 526, 542 [58] (Redlich JA); R v MAP [2006] QCA 220 [55] (Keane JA).

Further, there was little evidence to support the explanation of the couch incident, that had been put to the complainant in cross-examination, namely, that at the time that Robert Ritchie entered the lounge room, the applicant was helping to treat the complainant for an asthma attack that he was suffering. As mentioned, when that suggestion was put to the complainant, he denied it. He also denied that, when he did suffer an asthma attack, he used a spacer to treat it. When Robert Ritchie gave evidence, he did not recall that, when he entered the lounge room, he was told that the complainant was suffering an asthma attack. He did say that the word ‘asthma’ was mentioned at about the time he removed the blanket, but he did not say that that was said to him by way of some explanation for what he had observed. He also said he did not recall seeing a spacer or Ventolin pump in the lounge room. Further, when the applicant subsequently returned home, she did not then explain to him that he had misunderstood what he had observed, and that at the time of the incident the complainant had been suffering an asthma attack.

Plainly, counsel for the accused had directed the questions, about the asthma attack, to the complainant` for a particular purpose. The only possible reason for those questions to have been put in cross-examination was to set up a possible innocent explanation for what Robert Ritchie observed on the occasion of the couch incident, and for his very strong reaction to it. In light of the evidence that that explanation had not been advanced by the applicant, either at the time of the couch incident, or subsequently, it might reasonably be inferred that it was a recent invention by the applicant to seek to explain her conduct at that time.

However, those conclusions do not resolve the issues raised by the applicant under ground 1. The first, and critical question, is whether the suggestion, of recent invention, by the prosecutor in his address to the jury, was directed solely to the applicant, or whether, as contended on behalf of the applicant, the prosecutor also thereby suggested that the applicant and Robert Ritchie had colluded together to raise the spectre of an asthma attack as a potential innocent explanation for the couch incident, in circumstances in which the prosecutor had not put that proposition to Robert Ritchie in cross-examination.

The answer to that issue is not clear cut. However, we consider that the jury might reasonably have understood that the prosecutor had submitted to it that the applicant and Robert Ritchie had colluded to fabricate the asthma attack as an innocent explanation for the couch incident. We have reached that conclusion for three related reasons.

First, while most of Robert Ritchie’s evidence did not assist to advance the proposition that at the time of the couch incident the complainant was suffering from an asthma attack, he was quite firm in his recollection that, when he entered the lounge room, and accused the applicant and the complainant of acting inappropriately, he heard the word ‘asthma’ being spoken. When pressed on that matter, he said that he was ‘sure’ that he heard ‘asthma’. He was more equivocal as to whether he saw an asthma pump or Ventolin spray near the applicant and the complainant. He said that he could not recollect seeing either item there, but he said ‘that wouldn’t be unusual, they were around the house all the time’. Thus, Robert Ritchie’s evidence gave some, albeit limited, support to the proposition that was advanced in cross-examination of the complainant about the asthma attack.

Secondly, and most relevantly, the prosecutor intermingled the argument that he put to the jury, about the ‘puttage’ relating to the asthma attack, with the arguments that he advanced concerning the credibility of Robert Ritchie.

The prosecutor commenced that part of his submissions to the jury by stating that he wanted to say ‘something about the couch incident’. The first point he made was that questions put in cross-examination — which he defined to the jury as ‘puttage’ — were not evidence. He reminded the jury of the questions put to the complainant about the asthma attack, and (correctly) told the jury that the questions were not evidence, and that the complainant’s denial of that proposition was not contradicted.

Having done so, the prosecutor turned to the evidence of Robert Ritchie. As we have discussed, on three occasions he described it as ‘wife-serving’, and then, a short time later, contended that Robert Ritchie had watered down his evidence ‘to serve his wife’s interest’. He reminded the jury of the evidence as to Robert Ritchie’s dramatic response when he pulled the blanket away from the knees of the applicant and the complainant. The prosecutor then returned to the topic of the puttage, stating that that puttage had been made ‘in all that context’ (that he had just discussed). He reminded the jury of the evidence of Robert Ritchie about the asthma attack, and that it had never been mentioned to him after the applicant returned to the home. He then, again, in the same context, said to the jury ‘so again I submit the evidence that you’ve heard from [Robert Ritchie] is preposterous’, and he immediately submitted that the ‘innocent explanation’ for the couch incident was made up in order to answer the charges.

Those submissions by the prosecutor thus seamlessly intermingled contentions he had made about Robert Ritchie’s credibility with the proposition that the asthma attack explanation was made up to answer the charges against the applicant. In that way, in our view, clearly the jury could reasonably have understood that the prosecutor was directing his criticism, about the asthma attack explanation, not just at the applicant, but also at Robert Ritchie.

The third reason, for that conclusion, is that the argument presented by the prosecutor, concerning the asthma attack, raises the question as to what the prosecutor was actually seeking to achieve in presenting that argument to the jury. Clearly, it would have been sufficient for the prosecutor to point out to the jury — as he did earlier in his submissions — that there was no evidence to support the proposition, that was advanced in cross-examination of the complainant, and that the questions so put to the complainant were not evidence. However, the prosecutor went considerably further. He suggested that the explanation — as to the asthma attack — was made up. The difficulty with that proposition is that, with the exception of the brief evidence by Robert Ritchie, that he had heard the word ‘asthma’ during the couch incident, there was no other suggestion in the evidence, by any other witness, that at the time of the couch incident the complainant suffered an asthma attack. The applicant did not give evidence. As we have stated, the only evidence given in relation to that matter, at all, came from Robert Ritchie.

The prospect, that the jury might reasonably have understood that the prosecutor was suggesting that Robert Ritchie was a party to fabricating the innocent asthma attack scenario, was accentuated by the manner in which the prosecutor concluded his address on that topic. In particular, the prosecutor concluded that part of his address by submitting to the jury that ‘the asthma scenario’ had been ‘invented in order to defend these charges’. In the context of the three points to which we have referred, the jury might reasonably have understood that the terminology ‘asthma scenario’, employed by the prosecutor, was broader in meaning than simply the ‘puttage’. The language used by the prosecutor might reasonably have been understood by the jury to suggest that the ‘asthma scenario’ encompassed not only the questions put to the complainant about the ‘asthma attack’, but also Robert Ritchie’s evidence that he had heard the word ‘asthma’ when he removed the blanket from covering the applicant and the complainant.

Thus, the proposition advanced by the prosecutor — ‘it’s made up’ — left open the question as to what evidence, or to which witness, that proposition was directed. In combining the submissions that he made about Robert Ritchie’s credibility, with the submissions he advanced about the ‘asthma explanation’, it is, we consider, inescapable that the prosecutor might reasonably be understood to be suggesting to the jury that Robert Ritchie was a participant in the proffering of that explanation to the jury.

Two fundamental difficulties arise from that conclusion. The first, and most significant difficulty, is that the prosecutor did not, at all, put to Robert Ritchie, in cross-examination, that he had colluded with the applicant to give some evidence in support of the asthma explanation. The obligation of the prosecutor, to present the case fairly to the jury, demanded that, if he was to advance such a proposition in final address about Robert Ritchie, he must put it to the jury. In essence, the jury might reasonably have understood the prosecutor to be suggesting that Robert Ritchie was party to a conspiracy with the applicant to pervert the course of justice. That proposition was a serious one. It was, in our view, necessary of the prosecutor, in discharge of his duty of fairness, to put that proposition squarely to Robert Ritchie in cross-examination, and thereby give Robert Ritchie the opportunity to respond to it.[16]
[16]Cf Smith v The Queen [2012] VSCA 187 [51] (Redlich JA).

In reaching that conclusion, we are mindful that it is possible that the prosecutor might not have intended to allege collusion or conspiracy between the applicant and Robert Ritchie in his final address. This may explain why he did not put that allegation to Robert Ritchie in cross-examination. However, in light of the matters that we have discussed, and, in particular, in light of the manner in which the prosecutor intermingled his attack on Robert Ritchie’s evidence with his submissions about the ‘asthma scenario’, the fact remains that the jury might reasonably have understood the prosecutor to have submitted to it that Robert Ritchie had colluded with the applicant to advance that false scenario to it. The essential question is not what the prosecutor intended. Rather, the critical issue is whether he might reasonably have been understood by the jury to have advanced that proposition.

The couch incident was of first importance in the outcome of the trial.

A central issue in the trial was whether the strong reaction by Robert Ritchie, when he removed the blanket from the applicant and the complainant, was because he truly perceived them to be in a compromising position, or whether, on the other hand (as he maintained in his evidence) it was no more than a misconceived over-reaction by him in the heat of the moment. The actual reaction by Robert Ritchie was a given fact in the case. It was supported by the evidence of Cathy McGee. Thus, a key issue was what Robert Ritchie had actually observed at that critical moment. If the jury was satisfied that he did find the applicant and the complainant in a truly compromising position — as contended for on behalf of the prosecution — that was powerful tendency evidence in support of the evidence of the complainant in relation to the four charges that were before the jury. On the other hand, if Mr Ritchie’s evidence, as to his over-reaction, were accepted, or if there was a reasonable possibility that there was an innocent explanation for what he thought he had observed, the probative value and effect of the couch incident in the trial would have been significantly reduced.

It was in that context that the jury was left with a submission that was strongly pressed by the prosecutor — to which Robert Ritchie had not been given the opportunity to respond — that Robert Ritchie had deliberately tailored his evidence in relation to the couch incident to assist the applicant, and further that he had colluded with the applicant in respect of proffering, and, to an extent supporting, the suggestion that there was an innocent explanation for the applicant and the complainant sitting together in close proximity on the couch when Robert Ritchie entered the lounge room. In essence, the jury was left with those two central attacks on the credit of Robert Ritchie, which should have been put to Mr Ritchie, to which Mr Ritchie should have had the opportunity to make a response, and which the prosecutor failed, for no apparent reason, to put to him in cross-examination.

For those reasons, we have concluded that there was a fundamental departure by the prosecutor, to comply with his duty of fairness, by submitting to the jury, first, that Robert Ritchie had tailored his evidence in order to assist the applicant, and, secondly, that Robert Ritchie had colluded with the applicant to present a false explanation to the jury for his reaction in relation to the couch incident, when neither proposition had been put to Robert Ritchie in cross-examination.

In those circumstances, we could not be satisfied that the failure of the prosecutor, to comply with his duty of fairness, did not make a difference to the outcome of the trial. For those reasons alone, ground 1 of the application for leave to appeal, and the appeal, should succeed.

We should add that there was a second difficulty associated with the proposition, advanced by the prosecutor, that the asthma explanation was ‘made up in order to answer these charges’. Insofar as the prosecutor directed that proposition to the applicant (as well as Robert Ritchie), he implied to the jury that the applicant had proffered, through her counsel, a false explanation to answer the charges, because she believed that there was no true innocent explanation for the couch incident. In that way, as counsel for the applicant at trial correctly submitted to the judge, the prosecutor had suggested to the jury that the asthma explanation, advanced on behalf of the applicant, constituted the equivalent of incriminating conduct on her behalf. In those circumstances, the prosecutor ought to have given notice to the defence of his intention to advance that argument, before he made his final address. Further, at the least, the judge ought to have given to the jury the directions prescribed by s 21 of the Jury Directions Act 2015. Although counsel for the applicant did not specifically request that those directions be given, nevertheless, pursuant to s 16 of the Jury Directions Act, there were substantial and compelling reasons for such directions to be given to the jury. In the circumstances of this case, in which counsel for the applicant at trial had sought a discharge of the jury, we consider that the judge ought to have given those directions, notwithstanding that, at the same time, counsel did not specifically request that they be given.

For those reasons, the applicant should be granted leave to appeal on

ground 1, and the appeal allowed.

Ground 2

Ground 2 is concerned with the directions given by the judge to the jury in respect of the tendency evidence and the context evidence that was adduced by the prosecution.

The amended notice of tendency evidence, served by the prosecution under s 97 of the Evidence Act, was confined to two topics, namely, first, the evidence of the complainant as to the uncharged acts of penile/vaginal sexual penetration, and, secondly, the evidence of the couch incident. In discussion with the judge, before the empanelment of the jury, the prosecutor made it clear that he was only relying on those two aspects of the evidence as tendency evidence. Thus, the other evidence adduced by the prosecution — as to the inappropriate acts of affection by the applicant to the complainant, and the special attention that she gave to him — were not adduced as part of the tendency evidence, but, rather, as context or relationship evidence.

It is common ground, on this application, that, in the first part of his charge to the jury, the judge erroneously conflated the relationship evidence with the tendency evidence.

As mentioned, the judge commenced his final directions to the jury on Friday 5 October. On this aspect of the case, he noted (correctly) that the case was concerned with four specific charges relating to three incidents. He then stated that the prosecution had led other evidence, as to a wider sexual relationship between the applicant and the complainant, to demonstrate that the applicant had a sexual interest in the complainant, and that she had a willingness to act on that interest. In particular, the judge (incorrectly) referred the jury to the evidence of the complainant that the applicant would rub his leg, blow his ear, suck his ear lobes, and kiss him on the lips with an open mouth, and his evidence that on the day of her wedding to his father, she told the complainant that they were ‘soulmates’.

The judge also referred to the evidence of the complainant that the applicant gave him instructions in oral sex. His Honour correctly told the jury that those other incidents ‘of either sexual teaching or penile/vaginal intercourse’ were not the specific four ‘events’ that were the subject of the charges. The judge then turned to the couch incident, and (correctly) directed the jury that the prosecution asked the jury to reason back from that incident that the applicant had a sexual interest in the complainant and was prepared to act on it. His Honour outlined to the jury the response made by counsel for the applicant as to the other incidents and acts, that were not part of the charged offences. Having done so, the judge directed the jury:

If you do find that she [the applicant] had a sexual interest in him, was willing to act on that interest, then you can use that to find that it is more likely that she committed the four sexual acts that are the subject of the charges.

The judge then (correctly) told the jury that the prosecution had asked the jury to use ‘this other evidence of the relationship between them’ (the applicant and the complainant) to put their overall relationship into context, and to explain why the complainant might have submitted to the applicant’s demands or not complained about the offending. His Honour also told the jury that it could use the other evidence, as to the applicant’s conduct or state of mind, to demonstrate why she felt able to act in such a brazen manner.

In that way, quite clearly, the judge, in instructing the jury, confused the tendency evidence with the broader evidence which was led to demonstrate the relationship between the applicant and the complainant. After the jury had been sent to lunch, counsel for the applicant took exception to that aspect of the judge’s charge. The prosecutor, in response, told the judge that ‘it may be that some clarification is needed’. We interpolate that at that point, it seemed to be common ground between the parties at the trial, that the uncharged incidents of oral sex were also part of the tendency evidence, notwithstanding that they were not incorporated in the notice of tendency evidence. In any event, at the conclusion of discussion, the judge told counsel that he proposed to repeat the tendency direction, but to confine it to the oral sex, the other penile/vaginal acts of intercourse, and the couch incident, and to direct the jury that the other evidence was only led to demonstrate the relationship between the applicant and the complainant.

The judge’s charge resumed on the following Monday 8 October. The judge commenced on that day by stating that, as he had previously indicated, the trial was concerned with four alleged criminal events on three occasions, which were the charges. He then said that the prosecution had also led other evidence concerning the relationship between the applicant and the complainant. He told the jury (correctly) that the prosecution relied on the previous acts of oral sex and of penile/vaginal intercourse, and the couch incident, to demonstrate that the applicant had a sexual interest in the complainant and was prepared to act on it. The judge then outlined the arguments put by counsel for the applicant in respect of that evidence. Having done so, the judge told the jury that the second way that the prosecution wanted to use that evidence — that is, the previous acts of oral sex, penile/vaginal intercourse and the couch incident — was to add to the other evidence about the relationship between the applicant and the complainant. The judge (correctly) told the jury that the evidence might explain the complainant’s state of mind at the time of the offences, and also that the jury sought to use the evidence to demonstrate that the applicant felt able to act in a brazen manner in her conduct with the complainant.

It is not suggested, on behalf of the applicant in this application, that the directions given by the judge to the jury at that point were materially incorrect. Rather, it is contended that, in effect, the damage had already been done, and that the judge failed to repair that damage by telling the jury that the directions that he gave to them, on the Monday morning, constituted a correction of his earlier erroneous directions. As the judge did not indicate to the jury that the second set of directions were a correction or clarification of his previous directions, and that the previous directions were in error, those further directions would not have assisted the jury, but, rather, would have caused greater confusion for them.

In response, counsel for the respondent has conceded that it is difficult to understand why the judge did not point out to the jury that his previous directions were erroneous. Nevertheless, it was submitted, there was no reason to consider that the jury did not apply the later correct directions. Further, it was submitted, if the jury applied tendency reasoning to the evidence of the uncharged penetrative sexual activity and the couch incident (which was permissible), then the (impermissible) use of the evidence of the other ‘lesser’ conduct by the applicant with the complainant, as tendency evidence, would have made no difference. On the other hand, it is fanciful to suggest that the jury might have employed the evidence of the ‘lesser’ conduct by the applicant for tendency purposes, without considering that the evidence of the uncharged acts of sexual penetration and the couch incident were also evidence of the posited tendency. Accordingly, it was submitted that, to the extent that the jury might have been left in some confusion, no substantial miscarriage of justice has occurred.

In analysing the submissions under ground 2, two points are clear. First, as we have discussed, in the initial set of directions which he gave to the jury on the Friday, the judge erroneously failed to distinguish the evidence that had been adduced by the prosecutor as tendency evidence, from the evidence that had been adduced for the purposes of demonstrating the relationship between the applicant and the complainant. Rather, as counsel for the applicant has correctly submitted, the judge, in his directions to the jury about those pieces of evidence, conflated them. As such, those directions to the jury were plainly erroneous.

Secondly, while the judge, on the following Monday, correctly directed the jury concerning the tendency evidence, and the relationship evidence, and correctly observed the distinction between them, his Honour did not instruct the jury to disregard the directions he had given on the previous Friday, or that those directions were erroneous, and that the jury should only follow the directions that he was then giving to the jury. In that respect, we note that the judge, in the second set of directions that he gave on the Monday, did direct the jury that it must not use the relationship or context evidence ‘for any other purpose’. That warning, by the judge, may have reduced the risk of the jury misusing the relationship or context evidence, as a consequence of the earlier erroneous directions that he had given to the jury on the Friday. However, in the absence of an express direction by the judge, on the Monday, to disregard what he had earlier incorrectly told them on that topic, it must be accepted that the jury may not have appreciated the important difference between the correct set of directions given to it on the Monday, and the incorrect directions given to it on the Friday.

In those circumstances, the jury was left with two conflicting sets of directions on this topic. Significantly, the second set of directions to the jury on the Monday did not, in any way, specifically negate the impression left by the directions given on the previous Friday, that the ‘relationship’ or ‘context’ (non-tendency) evidence could be used by the jury for tendency purposes. That evidence included the evidence of the complainant as to the overt and inappropriate physical displays of affection by the applicant to the complainant, such as by rubbing his leg, blowing in his ear, sucking his earlobes and kissing him with an open mouth. As a result, when the jury considered its verdict, it may well have been left with the impression that it was entitled to use that evidence, not just as relationship evidence — to explain why the applicant felt free to commit the offences that were charged, and why the complainant was compliant with the conduct of the applicant in committing those offences — but, also, as tendency evidence, adding to the probabilities, in a positive way, that the applicant was guilty of each of the four offences that were charged against her.

When counsel for the applicant, on the Friday, correctly made an exception to the initial set of directions given to the jury, the judge, at one point, responded that the difference between tendency evidence and relationship evidence is ‘a distinction without a difference.’ On proper analysis, that response was incorrect in an important respect.

There is a significant difference between evidence, that is led for the purposes of demonstrating a relationship between parties, or context, on the one hand, and, on the other hand, evidence that is adduced as tendency evidence under s 97 of the Evidence Act. In essence, tendency evidence, if accepted, may bear directly on the probability of the existence of a particular fact that is in issue in the case. That is, tendency evidence may add to the probability that the offending, alleged against an accused, did occur. By contrast, context or relationship evidence does not, in that way, bear directly on the guilt of the accused. Rather, the purpose of that evidence is to explain why the parties might have behaved in a particular way, which might otherwise seem quite extraordinary or inexplicable. Thus, it may explain why an accused person felt free, in a case such as this, to engage in the offences charged, without exposing herself to the risk of having her conduct detected. Equally, it may explain why a complainant, in such a case, was compliant with the conduct alleged in the offences, in circumstances in which it might be expected he would otherwise have either resisted that conduct, or reported it, immediately, to his parents.

In Gardiner v The Queen, Simpson J described the probative value and purposes of tendency evidence as follows:

Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.[17]

[17]Gardiner v The Queen (2006) 162 A Crim R 233, 260 [124]. See also R v Cittadini (2008) 189 A Crim R 492, 495 [21]; Elomar v The Queen (2014) 316 ALR 206, 278 [359]–[360].

By contrast, Simpson J, in RWC v The Queen described the purposes for which ‘context’ or ‘background’ evidence is adduced (in that instance in a sexual assault case):

Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused … or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint.
Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.[18]

[18]

In the absence of careful directions by the trial judge, a jury might impermissibly misuse relationship evidence for tendency or propensity purposes. That risk exists, because, generally speaking, most tendency evidence can also fill the role of relationship evidence, and, conversely, nearly all relationship evidence can bespeak a propensity or tendency, without being admissible as tendency evidence.

The criteria, specified by the Evidence Act, for the admissibility of tendency evidence are strict. In order to be admissible for that purpose, under s 97(1) of the Evidence Act, the evidence must not only be evidence of a tendency, but it must also, as such, have a ‘significant probative value’ in respect of a relevant issue in the trial. Further, as most tendency evidence portrays unfavourable or reprehensible characteristics about a particular accused person, s 101 of the Evidence Act requires that the probative value of the evidence must ‘substantially’ outweigh its potential prejudicial effect on the right of the accused to a fair trial. Those two requirements are stringent. Evidence, that might suggest a particular tendency, but which does not meet the criteria specified in s 97(1) and s 101, is not admissible, as tendency evidence, to bear directly on the probabilities of the offences charged against an accused. At most, it might only be relevant as context or relationship evidence in the manner we have discussed. It is for that reason that the distinction between relationship evidence on the one hand, and tendency evidence on the other hand, is important, and is not a ‘distinction without a difference’ as suggested by the trial judge.

In the present case, it is plain, then, that the judge erred in failing, in his second set of directions, to expressly correct the earlier erroneous directions that he had given to the jury conflating and confusing the tendency evidence and the relationship evidence. The critical question, under ground 2, is whether this Court can be satisfied that that error by the judge did not affect the outcome of the trial and thus result in a miscarriage of justice.[19]
[19]Criminal Procedure Act 2009 s 276(1)(b); Baini v The Queen (2012) 246 CLR 469, 479-82 [26]–[35].

The answer to that question is not without difficulty. The most significant tendency evidence, that was adduced by the prosecution, comprised the evidence of the uncharged acts of sexual intercourse and oral sex between the applicant and the complainant, and the evidence relating to the couch incident. In particular, the couch incident was of importance in the trial, because, in effect, there were two witnesses to the immediate aftermath of it, namely, Robert Ritchie and Cathy McGee. As discussed, the evidence of Robert Ritchie, insofar as it was exculpatory of the applicant on that issue, was highly improbable, in view of his immediate reaction when he had observed the applicant and the complainant together on the couch.

There is some force in the proposition that if the jury accepted the evidence in respect of one or both of those matters — the uncharged acts of sexual intercourse, and the couch incident —the jury would have been satisfied that the applicant had an inappropriate sexual interest in the complainant, and was prepared to act on it. The potential probative value and effect of those two aspects of the evidence, as tendency evidence, would significantly outweigh the effect of the evidence of the inappropriate overt acts of affection by the applicant to the complainant, if the jury misused that latter evidence as tendency evidence. On the other hand, if the jury did not accept the evidence as to the uncharged acts of sexual intercourse, and the couch incident, and thus did not act on that evidence as tendency evidence, it is most unlikely that the jury would have accepted the other evidence of the complainant (as to the applicant’s inappropriate acts of affection) which should properly have been characterised as relationship evidence. Further, if the jury had accepted that evidence as truthful and reliable, it is unlikely that that evidence, standing alone, if misused by the jury as tendency evidence, would have materially added to the strength of the prosecution case.

Of course, it must be accepted that the matter is not as straightforward as that analysis suggests. As counsel for the applicant had contended, it is quite feasible that the context (or relationship) evidence — of the ‘non-sexual’ physical acts of affection by the applicant to the complainant — could have had a cascading effect, if it were misused as tendency evidence by the jury. In particular, if the jury were to have regarded the complainant’s evidence, of the touching and kissing, as tendency evidence, it might have thereby misused that evidence as impermissibly adding directly to the probabilities of both the uncharged sexual acts (of sexual intercourse and oral sex, as well as the couch incident) which was led for tendency purposes, and also as adding directly to the probabilities of the complainant’s evidence as to the charged acts.

That submission, by counsel for the applicant, is not entirely fanciful. There was some — albeit little — independent support for the evidence given by the complainant as to the uncharged ‘non-sexual’ acts of affection by the applicant towards him. His sister Michelle stated that she did not see the applicant kiss or touch the complainant in the manner that he had described. However, she did state, in her evidence, that the applicant ‘favoured’ the complainant, that she liked him more than his sisters, and that the applicant spent more time with him than she did with his sisters. She said that the applicant and the complainant used to go on long walks together, and that she (Michelle) was very jealous about that. To that limited extent, her evidence gave some support to the evidence of the complainant concerning the ‘non-sexual’ acts of affection by the applicant to him.

Despite that consideration, on balance, we do not consider that the error by the judge, in the directions that he gave to the jury about tendency evidence, could, of itself, have made a difference to the outcome of the trial. As we have discussed, it is most unlikely that if the jury did not accept the evidence as to the uncharged acts of sexual intercourse, and the couch incident, the jury would have accepted the other evidence of the complainant as to the non-sexual affection displayed to him by the applicant, and misused that evidence, as tendency evidence. Consequently, of itself, the erroneous directions by the judge concerning the tendency and context evidence did not constitute a substantial miscarriage of justice.

Accordingly, we do not uphold ground 2.

Ground 3

Under ground 3, the applicant has contended that the judge erred in failing to give a direction to the jury concerning the unreliability of the hearsay evidence given by the complainant as to what GJ and the applicant’s brother, JD, had said to him.

As mentioned, the complainant stated that, when he was about 15 years of age, he had a number of conversations with his friend GJ, in which the latter said that he knew that the applicant and the complainant were having sex because of the way that she kissed him and touched him. In his evidence, GJ was unable to recall making those comments to the complainant.

In addition, the complainant gave evidence that, in about 1996 or 1997, JD had a conversation with him in his motor vehicle, in which JD said to him ‘So is it true?’ and JD also asked him how he could do ‘that’ with his father’s wife. The informant gave evidence (by agreement with the defence) that when he recently contacted JD about that matter, JD (who at the time of the trial was 78 years of age) had no recollection of that conversation.

In the notice of hearsay evidence served by the prosecution under s 67 of the Evidence Act, the prosecution did not state that it intended to rely on the evidence of GJ or JD, or the evidence of what they had told the complainant, as evidence of the truth of those statements made to him. Nevertheless, that evidence could only have been adduced by the prosecution for that purpose, because it did not constitute evidence of complaint made by the complainant to either GJ or JD.

At the completion of the evidence, counsel for the applicant requested that the judge give directions as to the unreliability of hearsay evidence, in respect of the evidence given by Cathy McGee as to what Robert Ritchie had said to her about the couch incident, and also in respect of the evidence of the complainant as to what JD had said to him (but not in respect of his evidence of what GJ had said to him). The judge queried the need for the direction, but told counsel that he would, nevertheless, give the matter some consideration. Subsequently, in his charge, the judge did not give any direction to the jury in respect of the hearsay evidence as to what GJ and JD said to the complainant.

On this application, counsel for the applicant has submitted that the judge had no reason not to give the hearsay direction about the evidence of GJ and JD. He contended that the request for the direction was sound, and it should have been given. However, counsel, correctly, accepted that the complaint made under ground 3 would not be sufficient to give rise to a substantial miscarriage of justice.

In response, counsel for the respondent noted that counsel for the applicant, at trial, did not seek a hearsay direction in relation to what GJ had said to the complainant. Further, it was contended, the content of the conversation between the complainant and JD, as related by the complainant, was barely probative as hearsay evidence, and, in any event, it was not relied on by the prosecutor for that purpose.

As we have discussed, the evidence of the complainant, as to what both GJ and JD said to him, could only have been relevant as hearsay evidence, that is, as evidence as to the truth of what both GJ and JD said to the complainant. As such, it constituted ‘unreliable evidence’ under s 31 of the Jury Directions Act. Section 14(1) of the Act required the judge to give the jury a direction in respect of the evidence requested by counsel for the applicant — that is, the evidence of JD — unless there were good reasons for not doing so. In the present case, in our view, there were good reasons for the judge not to give such a direction.

As we have noted, neither GJ nor JD provided any support, as witnesses, to the evidence of the complainant concerning what they each had said to him. Thus, obviously, the jury could only use the hearsay evidence if it was satisfied as to the credibility and the reliability of the complainant’s evidence on that aspect of the case. The hearsay evidence came from the mouth of the complainant, and as such offered no independent support for his evidence. In that way, the hearsay evidence did not bolster the complainant’s credibility. The jury would have well understood that the complainant’s reliability and credibility were central issues in the trial. If the jury accepted the evidence of the complainant as to what GJ and JD had said to him, and if the jury had been minded to rely on that evidence as truth of its contents, it added little, if any, to the weight of the prosecution case.

On the other hand, the usual hearsay direction would have had little application to the evidence by the complainant as to what GJ and JD had said to him. Such a direction would ordinarily involve a direction to the effect that the accused had been deprived of the opportunity of properly testing the hearsay evidence by cross-examination of the author of the hearsay statement. GJ gave evidence in the trial and was cross-examined by counsel for the applicant. The evidence of JD (given through the informant) was that he could not remember the conversation deposed to by the complainant. No purpose would have been served in cross-examining JD, if (hypothetically) he had given evidence concerning that matter. Thus, the unreliability direction that is usually given to juries about hearsay evidence would have had little content or meaning, and, if anything, might well have distracted the jury from the other cautionary directions given to it by the judge.

For those reasons ground 3 does not succeed.

Ground 4

The complaint, made under ground 4, is quite confined, and can be summarised shortly.

In the section of the charge given on Friday 5 October, the judge directed the jury as to the topic of inferences and circumstantial evidence. In the course of doing so, he noted the evidence that Robert Ritchie was ‘ranting and raving’ when he removed the blanket that covered the legs of the complainant and the applicant. The judge then recited the argument, put by the prosecutor, that there must have been something serious involved in that incident. The judge told the jury that it could infer that a significant kind of event had occurred from the evidence given by Ms McGee that the complainant was distressed when he got home, and also from the evidence of Ms McGee that Robert Ritchie appeared to be distressed when she arrived at his house to collect the complainant.

The judge then directed the jury on other topics, before returning to the subject of distress. The judge told the jury that the evidence of Ms McGee, as to the complainant’s distress, was indirect evidence that might support the conclusion that some sort of traumatic event had occurred. His Honour also said that if the jury found that Robert Ritchie was distressed when he spoke to Ms McGee, that might also be indirect evidence of that fact. He then purported to recite an argument by defence counsel that the jury should accept Mr Ritchie’s evidence as to what had occurred on that aspect.

On the following Monday, 8 October, counsel for the applicant took exception to that part of the judge’s charge. In the balance of his charge, the judge returned to the topic of the distress evidence when summarizing part of the final address given by counsel for the applicant. His Honour told the jury that counsel for the applicant had submitted that the complainant’s distress, when he spoke to his mother, was consistent with him being falsely accused by his father of being in a compromising position, in circumstances in which his father had overreacted. In that way, the judge explained, the position taken by the applicant was that the complainant was ‘a bit of collateral damage’ to his father’s misconception of what the couch incident constituted.

On this application, the applicant made, in effect, two points concerning the directions given by the judge to the jury concerning the distress evidence. First, it was contended, the prosecutor did not advance any submissions concerning the relevance of the distress of Robert Ritchie as a consequence of the couch incident. Accordingly, the judge ought not to have given the jury directions as to that matter. Secondly, it was contended, the judge, in the directions that he gave on the Friday, failed to refer to the argument made on behalf of the applicant relating to the distress of the complainant in the immediate aftermath of the couch incident.

There is no substance in either submission. First, the prosecutor did, in fact, advance a brief submission relating to the distress of Robert Ritchie as a result of the couch incident. In addressing the jury as to that matter, the prosecutor made the point that as a result of that incident, Robert Ritchie telephoned his first wife ‘in distress’ describing the compromising position in which he found the applicant and the complainant. The prosecutor further noted the evidence of Robert Ritchie that, at that time, he was ‘ranting and raving’ as a result of the incident.

In respect of the second matter, counsel for the applicant has accepted that the judge, on the following Monday, did correctly remind the jury of the arguments advanced on behalf of the applicant, as to the relevance of the evidence of the complainant’s distress when his mother picked him up after the couch incident. In summarising the final address by counsel for the applicant, the judge told the jury that it was contended that there was a further explanation why the complainant might have been distressed when his mother saw him after the couch incident, namely, that he had been wrongly accused by his own father of doing something wrong.

Accordingly, ground 4 of the application does not succeed.

Ground 5

Ground 5 is that the trial miscarried because of an accumulation of some or all of the errors alleged in grounds 1 to 4.

We have already concluded that the trial miscarried due to matters that we have discussed under ground 1. In particular, the prosecutor failed to question Robert Ritchie, in cross-examination, about two allegations that he made in his final address, namely, that Robert Ritchie had tailored his evidence to assist the applicant, and that Robert Ritchie had colluded with the applicant to concoct a false innocent explanation for the couch incident. We have also concluded, under ground 1, that the arguments presented by the prosecutor, concerning the questions asked of the complainant in cross-examination relating to the asthma attack, amounted to an allegation of incriminating conduct on behalf of the applicant. That suggestion by the prosecutor, and the omission by the trial judge to at least offset it by an appropriate direction under s 21 of the Jury Directions Act, compounded the miscarriage.

We have also concluded, under ground 2, that the judge erred in failing to make it clear to the jury that it should disregard the first set of directions that he gave to it concerning the tendency and context evidence (which directions were incorrect), and that the jury should only follow and rely on the second set of (correct) directions that he gave to the jury on the following Monday. While that omission by the judge did not, of itself, occasion or constitute a miscarriage of justice, it did have a cumulative effect on the miscarriage of justice that we have found occurred in respect of the matters discussed under ground 1.

Conclusion

For the foregoing reasons, the applicant should be granted leave to appeal under grounds 1, 2 and 5, and the appeal should be allowed on grounds 1 and 5.

The question then arises as to whether, as a consequence, we should direct that there be a re-trial.

The applicant has now undergone two trials of the charges against her. The verdicts in the first trial were set aside by this Court.[20] On our reckoning, she has served approximately 21 months of the term of imprisonment imposed on her by the trial judge. Notwithstanding those considerations, we consider that we should direct there be a re-trial, and that the decision, whether such a further (third) trial be undertaken, be for the Director of Public Prosecutions. We have no doubt that the Director, in considering that decision, will bear in mind that the applicant has now endured two trials, and that the verdicts in both trials have been set aside through no fault of the defence. We also expect that the Director will take into account the principal reasons why we have concluded that leave to appeal should be granted, and the appeal allowed, on ground 1 of the application for leave to appeal.
[20]Ritchie (a pseudonym) v The Queen [2018] VSCA 31.

Orders

Accordingly, the applicant should be granted leave to appeal on grounds 1, 2 and 5 of the notice of application for leave to appeal. The appeal should be upheld on grounds 1 and 5. The verdicts entered against the applicant in the County Court should be quashed, the convictions set aside, and a re-trial ordered in respect of the charges against the applicant.

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See Libke v The Queen (2007) 230 CLR 559, 562 (Gleeson CJ), 589 (Hayne J), 605 (Heydon J),

cf 577–8 (Kirby and Callinan JJ dissenting).

RWC v The Queen [2010] NSWCCA 332 [122]–[123] (citations omitted). See also Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 455–6 [12] (Redlich and Coghlan JJA);

PCR v The Queen
(2013) 279 FLR 257, 262 [36] (Buchanan JA).

[2019] VSCA 202

17 September 2019