Roger Daniels (a pseudonym)[1] v The Queen
[2016] VSCA 291
•28 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0137
S APCR 2016 0138
| ROGER DANIELS (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.
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| JUDGES: | BEACH, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2016 |
| DATE OF JUDGMENT: | 28 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 291 |
| JUDGMENT APPEALED FROM: | DPP v [Daniels] (Unreported, County Court of Victoria, Judge M P Bourke, 1 June 2016); DPP v [Daniels] (Unreported, County Court of Victoria, Judge M P Bourke, 9 June 2016) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under the age of 16 (5 counts) – Complainants were step-granddaughters of applicant – Separate trials in respect of each complainant – Admissibility of text messages between complainants containing allegations of sexual assault – Evidence revealed mutual support and context in which complainants decided to complain to father and to police – Prejudicial effect minimised by directions to jury not to use evidence for tendency or coincidence purpose and editing of text messages – Evidence Act 2008 ss 136, 137 – Applications for leave to appeal granted, appeals dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Ginsbourg | Dribbin & Brown |
| For the Respondent | Mr D A Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
McLEISH JA:
Following separate trials, the applicant was convicted on five charges of sexual penetration of a child under 16, contrary to s 45(1) of the Crimes Act 1958. The first trial concerned two charges relating to AA. The second trial concerned three charges relating to BB, AA’s younger sister.
The applicant was sentenced on all charges to a total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months.
The applicant now seeks leave to appeal against conviction in each trial on the following grounds, which both raise the same issue:
AA
1.The learned trial judge erred in refusing to exclude pursuant to s 137 of the Evidence Act 2008 evidence of SMS messages sent to the complainant [AA] by her sister [BB] that contained an allegation by [BB] that the applicant had sexually assaulted her.
BB
1.The learned trial judge erred in refusing to exclude pursuant to s 137 of the Evidence Act 2008 evidence of SMS messages sent to the complainant [BB] by her sister [AA] that contained an allegation by [AA] that the applicant had sexually assaulted her.
Crown case
The applicant’s wife was the maternal grandmother of the complainants. During the period of the offending, the applicant lived with her. The complainants and their siblings regularly stayed at the applicant’s home from the age of five to their mid-teens. When young, the children sometimes slept in the applicant’s bed, with the applicant and his wife. All the offending was alleged to have occurred when AA and BB were staying overnight at the applicant’s home.
The Crown alleged that in 2003, when AA was aged eight or nine, she was sleeping in the applicant’s bed between the applicant and her grandmother. She awoke to the applicant touching and then penetrating her vagina with his finger or fingers. The applicant said ‘Shh’. This constituted charge 1 in the first trial.
When AA was 12 or 13, she was again in the applicant’s bed, between the applicant and his wife. She awoke to the feeling of the applicant rubbing her vagina. He again said ‘Shh’. The applicant slowly put his hand inside her underwear and inserted his finger or fingers into her vagina and AA pushed his hand away. Her grandmother woke and asked what was happening. The applicant put his hand over AA’s mouth and told his wife that AA was having a bad dream. This constituted charge 2.
When BB was about eight, she was sleeping between the applicant and his wife. The applicant sexually penetrated her by moving his finger or fingers in and out of her vagina. The applicant’s wife rolled over and asked what was happening and the applicant stopped. This was charge 1 in the second trial.
When BB was about 11, she was sleeping in the spare room. The applicant entered the room, moved to BB’s side of the bed and knelt over her, licking her vagina and digitally penetrating her. This conduct constituted charge 2.
When BB was about 11, she was again sleeping in the spare room and the applicant knelt over her, licking and digitally penetrating her vagina. On this occasion, BB told the applicant to stop and go away, and tried to push his hand away. This was charge 3.
BB gave evidence at trial that the applicant’s wife came into the room on one of the occasions and asked what was happening. The applicant said that she was having a bad dream.
BB gave evidence that sexual conduct of this type happened every time she stayed with the applicant and her grandmother between the ages of 8 and 12.
On 22 April 2014, following a text message exchange between AA and BB in which they disclosed the applicant’s offending to each other, they told their father of the offending. Subsequently, they attended a police station and lodged a complaint.
Separate trials
During pre-trial argument in the first trial, the judge granted the applicant’s application for separate trials under s 193(1) of the Criminal Procedure Act 2009. In his ruling, he stated that there was ‘a combination of features in the alleged conduct which makes a strong case … for cross-admissibility as either tendency or coincidence evidence’ under ss 97 or 98 of the Evidence Act 2008. In particular, he pointed to:
(a)the respective ages of the complainants, particularly on charge 1 relating to AA and charge 3 relating to BB;
(b)the sleeping arrangements at the time of the alleged offending;
(c)the fact that the penetrations were digital and that the girls awoke to the applicant’s hand rubbing their vagina just prior to penetration;
(d)the applicant saying ‘Shh’ upon the complainant waking up; and
(e)the applicant’s explanation to his wife, in relation to one occasion involving each girl, that the child was having a bad dream.
However, the probative value of the evidence in relation to those matters was ‘significantly undermined’ by the risk of contamination or innocent infection. In particular, the text message exchange between AA and BB, adverted to above, demonstrated a possibility or risk of further, future exchange. Moreover, there were inconsistencies in the evidence of BB as to charge 3 as between her VARE interview and a statement made seven months later, in December 2014. While the evidence did not establish that there had been further discussion between AA and BB, the judge was not convinced that the risk of such discussion had been eradicated.
The evidence therefore lacked the significant probative value required in order to be admissible as tendency or coincidence evidence. Further, what probative value existed after the risk of contamination was taken into account did not substantially outweigh its prejudicial effect so as to be admissible under s 101 of the Evidence Act. The prejudice in question was the risk that the similarity of features between the complainants’ accounts would unduly influence a jury without proper consideration of the possible effect of contamination. Accordingly the presence of inadmissible evidence would unacceptably risk an unfair trial. The judge therefore ordered separate trials.
Text messages
The judge also ruled on the admissibility of the evidence of the text message exchange already referred to. The evidence as it was ultimately led was in redacted form which differed between the two trials. It is necessary to set out the evidence that was led in each case. At the time of the exchange, AA was 19 and BB was nearly 15 years old.
In AA’s trial, evidence was led of the following exchange of text messages:[2]
[2]The words in the messages are reproduced as typed.
AA: Also, I need to ask you something [B] and I need you to answer me honestly. Has pop ever touched you in a bad way when you’ve slept in nan and pops bed, has he touched your private parts or anything? I know its scary to tell people but I need to know [B]. Also delete this so no one else sees it once you’ve replied.
BB: No.
AA: Well, he has touched me like that when I was your age and I want to know if his touched you baby girl. I know how hard it is to deal with and to tell people but you need to tell me. I love you [B].
…
BB: Does dad know he has touched you, you really need to press chargers he can’t get away with it and yes he has touched me but not for a couple of years.
AA: Does dad know he touched you?
…
BB: no dad dosent know … I am too scared to say anything
AA: … Okay. I’ll come over and we’ll both sit down and tell dad together if that will be easier for you? If you don’t wanna tell him by yourself I understand I was always too scared to say it alone. …
BB: I’m too scared.
We can tell him together but don’t come till dad is home.
AA: Babe I’ll be right next to you holding your hand okay. He can’t get away with this and there is nothing to be scared about I’ll be right next to you okay.
BB: Okay
…
… did he rape you?
?!?!?!
AA: No he didn’t, he just touched me.
…
AA: Okay, I’ll tell him I need to come over and talk to him and if he can wait for me to get there before he goes anywhere.
BB: Okay
Tell him me and you need to talk
Leave now because dad should be here soon
AA: I can’t babe [D][3] doesn’t finish work until 4:30 so I’ve asked dad to wait till I can get there.
[3]‘D’ was AA’s partner.
…
AA: … I’ll come round at 6 and we’ll tell him together. If dad try’s to ask what we need to tell him and stuff just say me and [A] wanna talk to you face to face together, say I want [A] here with me to tell you.
BB: Dad already has an idea of what it is about
AA: I know he would but don’t say anything girl. Unless you feel comfortable telling him alone.
BB: I’m not saying anything
AA: Okay babe
…
BB: What has pop actually done to you
AA: Just used his fingers sweetie.
BB :/
In BB’s trial, the evidence was as follows:
AA: Also, I need to as you something [B] and I need you to answer me honestly. Has pop ever touched you in a bad way when you’ve slept in nan and pops bed, has he touched your private parts or anything? I know it’s scary to tell people but I need to know [B]. Also delete this so no one else sees it once you’ve replied.
BB: No.
AA: Well, he has touched me like that when I was your age and I want to know if his touched you baby girl. I know how hard it is to deal with and to tell people but you need to tell me. I love you [B].
…
BB: Does dad know he has touched you, you really need to press chargers he can’t get away with it and yes he has touched me but not for a couple of years.
AA: Does dad know he touched you?
…
BB: no dad dosent know
… I am too scared to say anything
AA: … Okay. I’ll come over and we’ll both sit down and tell dad together if that will be easier for you? If you don’t wanna tell him by yourself I understand I was always too scared to say it alone. …
BB: I’m too scared.
We can tell him together but don’t come till dad is home
AA: Babe I’ll be right next to you holding your hand okay. He can’t get away with this and there is nothing to be scared about I’ll be right next to you okay.
BB: Okay
AA: Did he ever rape you? Or did he just touch you?
BB: Just touch
…
AA: Okay, I’ll tell him I need to come over and talk to him and if he can wait for me to get there before he goes anywhere.
BB: Okay
Tell him me and you need to talk
Leave now because dad should be here soon
AA: I can’t babe [D] doesn’t finish work until 4:30 so I’ve asked dad to wait till I can get there.
…
AA: … I’ll come round at 6 and we’ll tell him together. If dad try’s to ask what we need to tell him and stuff just say me and [A] wanna talk to you face to face together, say I want [A] here with me to tell you.
BB: Dad already has an idea of what it is about
AA: I know he would but don’t say anything girl. Unless you feel comfortable telling him alone.
BB: I’m not saying anything
AA: Okay babe
…
AA: Is that all his done to you? There’s nothing more?
BB: Nothing more than fingers and tounge.
It can be seen that, in each trial, evidence was led of the fact that the relevant complainant and her sister had revealed to each other that the applicant had ‘touched’ them and they had agreed to tell their father together what had happened.[4] AA had told BB that she was touched on her private parts by the applicant, by inference while she was sleeping in the applicant’s and their grandmother’s bed. That statement was led in both trials. AA’s further statement, that the applicant had used his fingers, was only led in the trial involving AA’s allegations. BB’s confirmation, in answer to AA’s question, that the applicant had touched her was led in both trials. Her further statement to AA that the applicant had used his fingers and tongue was only led in the trial on BB’s allegations.
[4]At each trial, evidence was only led of that part of the conversation with their father which related to the relevant complainant.
The judge ruled the above evidence admissible in the respective trials as evidence of complaint. He observed that complaint evidence is relevant to the consistency of a complainant’s behaviour and therefore to the complainant’s credibility. In the present case, the text message exchange as a whole demonstrated expressions of past and present fear, mutual concern about the other complainant’s situation and the need or desire for mutual support including in telling their father. The fact that each complainant said she had been offended against was inextricably bound up with their expression of their feelings and motivation. While the applicant had argued for more extensive redaction of the text message exchange, this ‘would strip the evidence, as to each [complainant], of its true meaning and sense’.
In the judge’s view, the probative value of the messages was ‘considerable’. On the other hand, there was a risk of prejudice to the accused, principally due to the danger that the jury might use evidence of one sister’s complaint as bearing on the trial of the other’s complaint. However, the judge held that, provided the texts were suitably edited and the subject of judicial direction as to their proper use, the prejudice did not outweigh the probative value of the evidence. The judge therefore refused to exclude the evidence under s 137 of the Evidence Act 2008.
After the text message evidence was introduced, and again when charging the jury, the judge gave directions as to the manner in which the evidence could and could not be used.
In relation to AA, he directed as follows after the text message evidence was introduced:
I need to give you this short direction about how to approach this evidence in such circumstances. Now I shall return to this because it is an important direction at greater length at the end of the trial when I give you all of my directions of law.
What [AA] said to both people, well indeed to the three people. To [her partner], her sister [BB] and her father is called evidence of complaint, complaining about sexual offending against oneself. The primary purpose of the evidence is to show that [AA], not [BB], [AA], made complaint to others in the circumstances she did. And you may use this on the question of her consistency of conduct and therefore on her, [AA’s] credibility.
I expect the Crown will or may put to you that it supports the credibility of [AA’s] allegations against the accused. The defence may — will or may put that the circumstances and timing of her complaint, the complaint of [AA} speaks against her being consistent and credible. Arguments will be put to you about it at the relevant time.
Now I raise this now, to make clear to you that it is what [AA] has said in complaint that is the relevant evidence. Not what [BB] has said to her in texts about herself. Her texts, those of [BB] are led to give context to those of [AA]. What she, [AA] has texted. That is, to give you a better understanding of the circumstances in which [AA] made the complaint or allegations about what happened to her at the hands of the accused man.
Now what [BB] has texted about herself, has no relevance beyond that. It is not evidence of what she says happened to her. It is not evidence of what she, [BB] says happened to her. Now you must be very careful in dealing with this evidence. Particularly careful that you do not let it distract you from the relevant evidence, [AA’s] texts. Or prejudice you in any way against the accused. It’s important enough that I say it now, that I’ve chosen to say it to you now, rather than wait till the end. But as I’ve stated I shall return to this, it is an important direction. You should be aware now of the limited use of this evidence.
In his charge to the jury the judge returned to the matter:
You can use [AA’s] complaint of what she says happened to her, to the various people she did complain to her, to assess her credibility. The fact that she made the complaint and the content of that complaint may show that her account of events before you has been — or that — I will put that again. May show that her account of the events in question has been consistent. You should ask yourself whether she acted in the way you would expect her to act had she been offended against in the way she says. Was her conduct the sort of conduct you would expect of a person in her position?
In addition, the evidence of complaint may rebut an argument that the absence of complaint, or delay in complaint, would suggest that the offences did not take place. …
…
Now, you need to bear this in mind, that as almost always happens, you have heard evidence of [AA’s] complaint not only from her, but from the people to whom she made the complaint, [AA’s partner], her father and also [BB]. Now, it would be a mistake to treat this as evidence that is independent of [AA]. [AA], she of course was the original source of the complaint. The other witnesses are simply saying what she said to them and the circumstances that existed at that time.
So you may use the evidence in the way I have described in your assessment of her, [AA’s] credulity, but you must not mistake it for evidence independent of her. It comes ultimately from her.
I will remind you of that earlier direction I made during the trial. The evidence of what [AA] said to her sister [BB] in the text conversation includes some reference to what [BB] said to [AA] about what happened to her, [BB]. The relevance of the text evidence is what [AA] said about what happened to her, [AA]. The purpose of the evidence, as I have just taken you to, is to show that [AA], not [BB], made complaint to her sister in the circumstances she did. You may use, on the Crown argument to you, you may use this on the question of her consistency and therefore her credibility.
The Crown put that it supports the credibility of her allegations against the accused. The defence, as you have heard, puts that the circumstances of timing, the delay in complaining, speak against her being consistent and credible. …
I make clear that it is what [AA] has said in complaint that is the relevant evidence, not what [BB] has said in the texts. Her texts, those of [BB], are led to give context to the texts of [AA], what she, [AA] has texted or said to her sister. In other words, to give you a better understanding of the circumstances in which she, [AA], made complaints or allegations to her sister about the accused. What [BB] has texted about herself has no relevance beyond that. It is not evidence before you, it is not evidence of what she, [BB], says happened to her. You ignore it in that way. You must be very careful in dealing with this evidence, particularly careful that you do not let it distract you from the relevant evidence or prejudice you in any way against the accused.
I make this further comment about this aspect which may assist. There is a strong logic to how I direct you about the limited use of the evidence of the texts in this way. Any consideration of the truth or not of what [BB] has said happened to her is irrelevant and it is not necessary. The issue in complaint evidence is what [AA] has said and the circumstances of that. It is her state of mind and your assessment of that which is relevant.
The directions given in the trial relating to BB were substantially similar.
Grounds of appeal
It is convenient to deal with the two applications for leave to appeal together.
The applicant contended that the messages carried a high danger of unfair prejudice. That prejudice went beyond suggesting the applicant was of bad character. The similarity between the allegations made by AA and BB created a risk that jurors would use the evidence for a tendency or coincidence purpose, notwithstanding the judge’s directions to the contrary. The potential prejudice was so great that there was a high risk that one or more jurors would not be able to obey the judge’s directions.[5]
[5]R v Halliday (2009) 23 VR 419, 439–40 [80]–[81] (Buchanan, Ashley and Weinberg JJA).
On the other hand, the probative value of the evidence was inherently limited as it merely provided context to complaint evidence. Moreover, it did not come from an independent source and therefore had little capacity to buttress the credibility and reliability of the complainant’s evidence. Counsel referred to IMM v The Queen, where the following was said of evidence of an uncharged act:
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.[6]
[6](2016) 90 ALJR 529, 541 [62] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
Counsel submitted that the probative value of the evidence was further limited by the fact that the prosecution could have adduced evidence about the context of the text message complaints by other means. The prosecution could have led evidence, in each trial, of the fact that the complainant in that trial had described to her sister the ‘touching’ involved, that they agreed that their father should be told and that they arranged to meet him together for that purpose. That would have sufficiently conveyed the substance and context of the complaint evidence relied upon by the prosecution without creating any danger of unfair prejudice. In short, the Crown was able to lead evidence at each trial as to why the complainant had gone to her father when she did.
In the case of AA, it was submitted that the probative value of the text messages was lessened still further because there was evidence, corroborated by her partner, that she had told him about the offending three months earlier and expressed her fear then about telling her father. She had said she felt secure talking to her partner, with whom she was in a new and supportive relationship. The jury was therefore already aware of evidence of her first ‘complaint’ and her explanation for the delay in telling anyone of the offending.
The respondent contended that the probative value of the text message exchange lay primarily in its capacity to support or enhance the credit of the complainants by ‘demonstrating consistency in [their] conduct and consistency of the evidence given in court’[7] in response to the defence claim that the allegations were falsely made. It was open to the judge to find the evidence was of considerable probative value. It was important for the jury to be able to evaluate how the complaint in each case unfolded. Each complainant decided to tell her father after she was strengthened in her resolve by knowing that her sister would say something similar. The mutual support the sisters derived from each other was an important aspect of their psychological condition and an essential link in the chain leading to their father being told of the allegations and taking them to the police. Without the full picture the jury was not properly able to evaluate what led to those events, or to assess the Crown’s case as to what gave them the courage to tell their father after the period of delay upon which the defence relied.
[7]R v Knigge (2003) 6 VR 181, 190 [14] (Winneke P; Phillips and Chernov JJA agreeing).
In the case of AA, the respondent submitted that the position was no different. Her initial disclosure to her partner had lacked any detail, and the jury was still left with the question as to what prompted her to go to her father and the police with a detailed account three months after that initial disclosure.
Finally, the respondent submitted that the judge gave strong directions to the jury that limited the use that could be made of the evidence. The judge’s redactions of the messages and his directions limiting the use of the evidence minimised the risk of the evidence being used for a tendency or coincidence purpose, or otherwise so as to risk unfair prejudice.
Analysis
The question for the trial judge under s 137 of the Evidence Act was whether the probative value of the text message exchange was outweighed by the danger of unfair prejudice to the applicant. There is little doubt that the potential for unfair prejudice in the present case was real. That danger was the risk, as the applicant submitted, that the jury might resort, perhaps unconsciously, to impermissible tendency or coincidence reasoning. The judge sought to mitigate the potential danger of unfair prejudice by redacting the text messages and limiting the use to be made of the evidence under s 136 by the directions to the jury set out above. The jury must be taken to have understood and followed those directions.[8] The danger of unfair prejudice as a result of one or more members of the jury failing to do so should not be overstated. The directions, as the judge foreshadowed when he made his ruling, were clear and direct. They could easily be understood and followed by a jury evaluating the whole of the evidence against the applicant in each trial.
[8]Gilbert v The Queen (2000) 201 CLR 414, 425–6 [31]–[32] (McHugh J); Dupas v The Queen (2010) 241 CLR 237, 247–9 [26]–[29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
By the judge’s limiting of the use to which the evidence could be put, and by the directions he gave to the jury, the danger of unfair prejudice was meaningfully reduced.[9] Having said that, it is plain that some danger remained of unfair prejudice to the applicant as a result of the admission of the impugned evidence.
[9]TKWJ v The Queen (2002) 212 CLR 124, 138–9 [47] (Gaudron J); P v Tasmania (2009) 19 Tas R 266, 275 [31] (Blow J; Slicer and Tennent JJ agreeing); R v Cook [2004] NSWCCA 52 [37] (Simpson J; Ipp JA and Adams J agreeing).
That danger must be weighed against the probative value of the evidence in question. The fact that the evidence of complaint was not from an independent source may be put to one side. It is inherent in complaint evidence that its ultimate source is the complainant. Here, if evidence independent of the complainant is to be sought, the text messages themselves offered confirmation that the complaint had in fact been made. But the passage in IMM cited by the applicant does not suggest that complaint evidence lacking independent verification lacks probative value. To the contrary, the Court went on to uphold the admission of complaint evidence.[10] The passage on which the applicant relied concerned tendency evidence only.[11]
[10]IMM (2016) 90 ALJR 529, 541–2 [65]–[74] (French CJ, Kiefel, Bell and Keane JJ).
[11]See DPP v Martin (a pseudonym) [2016] VSCA 219 [104]–[106] (Redlich, Weinberg and McLeish JJA).
The applicant was on firmer ground in submitting that much of the evidence in the text messages could have been led by the Crown in any event. The jury could have been told that the relevant complainant had told her sister about the applicant’s actions, that she had been afraid to tell her father, that her sister had agreed to accompany her so her father could be told, that this took place and that the police were then informed. In that way, the support offered by the complainant’s sister would bear on the explanation for telling her father only after a delay (of about six years in the case of AA and two years in the case of BB).
However, this would have been an incomplete and potentially misleading account of what led each of the sisters to go to their father. The mutual support which each offered the other lay in their having each revealed to the other that the applicant had touched them inappropriately in the manner they described. They were fortified, not just by the other’s presence, but by reason of not being the sole complainant. On the Crown’s case this readily explained the psychological processes which gave each complainant the courage to tell her father, and the police, what had happened to her. The probative value of this evidence was considerable. Without it, the explanation for making the complaint at the time that each complainant did was significantly weakened.
In relation to BB, the Crown case was that she only told anyone what had happened after she had realised that AA had been assaulted too. This emboldened BB to tell their father what had happened to her. This goes beyond evidence of the moral support that BB derived from AA agreeing to go with her to their father so that BB could tell him what happened to her. As well as receiving the support of her sister in making that disclosure, BB had been fortified, on the Crown case, by hearing what had happened to AA and this helped BB decide that she should not remain silent. The disclosure of AA was a critical factor in BB’s decision to complain.
The probative value was equally strong in the case of AA. Although she had told her partner in general terms that the applicant had touched her inappropriately, she had not told anybody in any detail until the complaint to her father and the police was made. An explanation of the reason why this changed, and for the period of delay that elapsed after she spoke to her partner, was called for to rebut the defence claim that the allegations had been concocted. Without evidence that AA had been told that BB had been assaulted by the applicant, the jury would have been left without a key element of the reason why AA, on the Crown’s case, decided to tell her father what had happened to her. AA did not simply derive moral support from BB being present when she did so. AA made her complaint in the context of offering support for BB.
In the circumstances, the judge was correct to hold in each trial that the probative value of the impugned evidence was considerable and that it outweighed the danger of unfair prejudice. The applicant’s challenge to the ruling must therefore be rejected.
There is a further matter that should be noted. As events transpired, the defence at each trial was able to deploy the impugned evidence to good effect. In persuasive and well-constructed final addresses, counsel urged the jury to reject as false each complainant’s evidence. In the case of AA, he suggested that she had grown to resent her grandparents, whom she blamed after her life had been turned upside down by the separation of her parents and her mother’s emigration to start a new life without her children. Shortly before the text message exchange, she became aware of a serious altercation between her grandparents, and her father and BB, in the course of which her grandmother had assaulted BB. The jury was invited to decide that AA had already made a false allegation about the applicant to her partner and took the opportunity of repeating that allegation to BB to make her feel less bad about having been mistreated by her grandparents, or by way of revenge against them. BB’s own allegation then encouraged AA to pursue her false allegation further.
In the case of BB, counsel suggested to the jury that the upheaval in her life at a vulnerable age as a result of the family’s dislocation, together with the recent heated altercation with her grandparents, may have led her to say things that were likely to gain sympathy or attention. She made the allegations in the text messages under some pressure from her sister, after initially denying that anything had happened, and essentially adopted AA’s own allegation of what had happened in her case. AA had been able to influence a child at a time of emotional crisis.
In both cases, these arguments were advanced as elements of a larger argument that the complainant’s evidence was unreliable and not to be believed.
The fact that counsel was able to press the evidence of the text messages to advantage in this manner does not bear on the judge’s ruling. He did not take account of the possibility that the messages could assist the defence and thereby reduce the danger of unfair prejudice.[12] As counsel for the applicant submitted, the fact that the defence was able to salvage something of value from the evidence after failing to have it ruled inadmissible did not, in this case, bear on whether the ruling was correctly made in the first place.
[12]Nor would such a possibility have sufficed to rebut the applicant’s argument that, had the judge’s ruling been in error, such error resulted in a substantial miscarriage of justice: see Criminal Procedure Act 2009 s 276(1)(b); Baini v The Queen (2012) 246 CLR 469, 480–2 [30]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ), 493 [66] (Gageler J).
However, the different uses to which the context evidence was sought to be put by the prosecution and the defence indicate that it was open to different interpretations. In the event, for the reasons already given, those different interpretations were properly left to the jury for its evaluation.[13]
[13]It is not necessary to explore the question whether the judge could properly have taken account of the possibility that the contested evidence may have been deployed to the advantage of the accused or otherwise have afforded a foundation for competing inferences to be drawn: see R v XY (2013) 84 NSWLR 363, 385 [88]–[89] (Hoeben CJ at CL), 406 [204]–[207] (Blanch J); R v Burton (2013) 237 A Crim R 238, 280 [196]–[198] (Simpson J; R A Hulme J and Barr AJ agreeing).
Conclusion
It remains to mention that the present appeals were framed and conducted in a fashion that does great credit to the applicant’s counsel, who was also counsel at each trial. The point argued was plainly the real issue capable of being properly raised on appeal. It had been raised and fully argued before the trial judge. Counsel resisted the temptation to supplement the ground with others of less merit. The appeals represent an example of how the Court’s criminal appellate procedures are intended to work.
Leave to appeal should be granted but each appeal must be dismissed.
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