Russell Sanders (a pseudonym)[1] v The Queen
[2016] VSCA 6
•10 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0239
| RUSSELL SANDERS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | REDLICH, PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 February 2016 |
| DATE OF JUDGMENT: | 10 February 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 6 |
| JUDGMENT APPEALED FROM: | DPP v [Sanders] (Unreported, County Court of Victoria, Judge Bourke, 30 November 2015) DPP v [Sanders] (Unreported, County Court of Victoria, Judge Bourke, 1 December 2015) DPP v [Sanders] (Unreported, County Court of Victoria, Judge Bourke, 1 December 2015) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Incest, indecent act with child under 16 – Admissibility of evidence – Application to have entire record of interview excluded – Evidence Act 2008 ss 55, 56, 90, 135, 136, 137 – Criminal Procedure Act s 464A(2) – Admissions made by applicant in record of interview – Failure of investigating official to put specific allegations to applicant in record of interview not sufficient to have record of interview excluded in its entirety – No error by trial judge in ruling record of interview admissible – Leave refused.
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay of some charges – Severance of charges ordered by trial judge – No error – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Condon | Smith & Tapper Criminal Lawyers |
| For the Crown | Dr N Rogers SC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA:
The applicant faced an indictment containing seven charges of incest and 14 charges of indecent act with or in the presence of a child under 16. The alleged victims are SB and DB,[2] the grandchildren of the applicant’s then partner, MD. SB was aged approximately six to 10 years old at the time of alleged offending against her, and her brother DB was aged approximately 10 to 14 years. The alleged offending took place between 1995 and 2004.
[2]Pseudonyms have been used throughout to ensure anonymity.
The present interlocutory appeals concern the refusal by the trial judge to certify in respect of two interlocutory decisions, namely:
1.The refusal of the trial judge to rule as inadmissible the record of interview conducted with the accused on 8 May 2014 (‘Ruling 1’); and
2. The refusal of the trial judge to grant a stay application in relation to Charges 1, 3, 6, 7, 20, 21 and 22 (‘Ruling 2’).
Before turning to each ground of appeal, I will briefly set out the background to the proceedings at the trial and the evidence as proposed to be presented by the prosecution.
Background
The applicant was in a de facto relationship with MD, who is SB and DB's grandmother, for approximately 10 years. The applicant lived with MD from 1994 until July 2014. MD has three grandchildren; SB, DB and a younger brother. They visited and stayed with MD and the applicant during school holidays, and on every third weekend of the month. MD would mind the children over the weekend, and the applicant was present during such occasions and interacted with the children.
The alleged offending involved various instances of sexual acts performed both on and in the presence of SB and DB. The basis of the allegations were founded on the VARE evidence of SB, as well as alleged admissions made by the applicant in his record of interview.
In his first ruling relating to the admissibility of evidence, the trial judge summarised the circumstances of the allegations and proposed evidence as follows:
[SB] complained to the police in 2013. She was aged 20. A visual-audio recording of evidence a VARE, was conducted on 24 June 2013. It related to her allegations against the accused but also conduct involving the accused and her brother, [DB]. A second VARE by [SB] was conducted on 19 July 2013. I am told that this relates to allegations of conduct against or with her by [DB]. It is not said to be relevant to this ruling, and I am yet to view it.
Unusually, for some time in the police investigation [DB] had the status of both victim and suspected perpetrator. It has been decided not to charge him. He has made no allegations of his own against the accused to police. He has not been interviewed and has made no statement. It can sensibly be inferred from the voir dire evidence in this application that he does not wish to do so.
It is not proposed that either of [SB]’s VARES be led in evidence. She will give evidence-in-chief and be cross-examined before the jury. Her VARE interviews stand as notice of that evidence in the way of traditionally taken police statements.
[DB] will not be called as a witness. On the charges related to him, Charges 1, 3, 6, 20, 22 and 22, the Crown relies in part on the evidence of [SB] but largely upon the accused’s statements in his record of interview.
On 8 May 2014, the accused was interviewed by the informant Detective Senior Constable Benjamin Hodson.
Amongst Detective Senior Constable Hodson’s material for that interview was, of course, the fist, that is, June 2013 [SB] VARE. In that interview, the accused described various sexual conduct by both [SB] and [DB] in his presence and toward him.
It can be said that he described both children as sexually active and precocious, that he acquiesced in their behaviour and at times reacted sexually himself, although passively, for example, masturbating. It can be said that he denied direct physical sexual acts initiated by him toward them.[3]
[3]DPP v [Sanders] (Unreported Ruling, County Court of Victoria, Judge Bourke, 30 November 2015) 195–196 (‘Ruling No 1’).
Charges 2, 4, 6, 7 to 11 and 13 to 19, relate to alleged offending involving SB. Charges 1, 3, 6, 20, 21 and 22 relate to the alleged offending involving DB. The prosecution intended the charges involving offences against both SB and DB would be heard together.
Ground 1
On 20 November 2015, the applicant filed submissions seeking that the court refuse to admit the accused's record of interview in its entirety into evidence. The applicant proceeded on a number of bases, but during the course of oral argument today, the bases upon which it is submitted that his Honour erred in refusing to exclude the record of interview were narrowed.
Ultimately, the applicant relies upon a breach of s 464A(2) of the Crimes Act1958 and s 56 of the Evidence Act 2008. The applicant contends that the learned trial judge erred in finding that there had been no breach of the requirement under s 464A(2), that the investigating official inform the applicant as to the circumstances of the offence when making enquiries of or interviewing the suspected person.
During the course of oral argument, Ms Condon who appeared on behalf of the applicant, submitted that because of the failure of the investigating official to inform the applicant of the circumstances of the offence that the applicant was then suspected of having committed, the interview took on a generality which would not otherwise have ensued, had the investigating official put the specific allegations raised by SB to the applicant.
It suffices to say that upon the investigating official putting, in general terms, the allegation made by SB concerning sexual offences committed by the applicant against her and her brother, the applicant proceeded in a quite voluntary and discursive way to inform the investigating officials about the nature of his conduct with SB and her brother. He did so at great length. The prosecution now seeks to rely upon the various admissions said to be contained in the record of interview.
The trial judge in his ruling, considered that the probative value of the admissions made by the accused in his record of interview was high. His Honour said:
In my view, that the accused admits the sexual behaviour and interaction he does — albeit passive on his part and not directed by him physically at or upon the children — can rationally affect the jury's assessment of the probability of [SB] giving an honest and reliable account of the events she describes, in a very significant way.[4]
[4]Ibid 202.
His Honour concluded the ruling refusing to exclude the entire record of interview, but then went on to observe that that did not mean that particular parts of the interview could not hereafter be the subject of challenge.
In oral argument Ms Condon conceded that there was at least one portion of the applicant's interview in which sexual activity was discussed, which could plainly support the contention that the applicant had a sexual interest in the complainant. She submitted that nothing else contained in the record of interview could support tendency reasoning or provide any other basis for the admissibility of the content of the record of interview.
As is clear from the transcript of the proceedings, the judge has not yet ruled upon the question as to what portions of the record of interview might be excluded. It was noted during the course of oral argument that the applicant will likely advance contentions that various parts of the interview should be excluded. His Honour may accede to further submissions that specific portions of the interview should be excluded. I am however unable to see any error in his Honour’s careful reasons as to why the entirety of the interview should be excluded. I would not uphold the ground of appeal that asserts error in that regard.
Ground 2
I turn then to the second ground of appeal, which involves an application that was made by the applicant to stay the proceedings. On 26 November 2014 the applicant sought a permanent stay of charges 1, 3, 6, 7, 20, 21 and 22 and in the alternative sought a severance of the charges. The trial judge severed the charges, but did not grant the application for a permanent stay.
The applicant's submissions to the trial judge were based on the unavailability of the witness DB. It was submitted that the charges which related to him, were ‘foredoomed to fail’, given that DB was the only witness to the allegations the subject of the impugned charges.
The evidence relating to charges 1, 20, 21 and 22 arose solely from the record of interview conducted with the applicant, while charges 3, 6 and 7 were founded in evidence given by SB's VARE of June 2013.
Should the application for a permanent stay fail, the defence said in the alternative, that the indictment in its current form was overloaded and that there should be severance of the charges. Such a severance was granted. In his ruling his Honour said:
I do not see it as disputed that a trial should proceed unless it cannot be fair. Alternative steps to achieve a fair trial must be considered and, if appropriate, taken. This would include severance. I find that severance will achieve a fair trial on the charges related to [SB], who is to be called. They are Charges 2, 4, 5, 7 to 11 and 13 to 19. I shall return to Charge 7 and 12 at the end of or after my ruling.[5]
[5]DPP v [Sanders] (Unreported Ruling, County Court of Victoria, Judge Bourke, 1 December 2015) 238 (‘Ruling No 2’).
I see no error in the approach adopted by his Honour. His Honour concluded that if the trial proceeded on all charges in the indictment, there was an unacceptable risk of prejudice to the applicant. In severing the charges, his Honour said:
Independent of the defence challenge on grounds of abuse of process, and as suggested in my ruling on the record of interview, there are risks of prejudice to the accused in the circumstances of a joint trial. There would be a large number of charges. The [DB]-related charges are put on a significantly different kind of evidentiary basis. That problem is exacerbated by some overlap; as to some [DB] charges, the Crown also relies upon the direct evidence of [SB].
I see a resultant risk of misuse by the jury of the broad sweep of the evidence and particularly, within that, the record of interview admissions; the risk, for example, as stated in the record of interview ruling, of the jury acting upon an improper finding of a general propensity to interact sexually with children. Severance would markedly reduce such risks. Together with appropriate directions, much more clearly understandable and likely to be followed in a separate trial on the SB charges, in my view, a fair trial would be achieved.[6]
[6]Ibid 238–9.
The applicant's complaint that the trial would give rise to an abuse of process, rests upon the proposition that as DB will not be called as a witness on those charges, they are foredoomed to fail and that his absence denies the applicant an opportunity to test his credit and reliability. A separate indictment in relation to the charges involving allegations of offences against DB is yet to be filed. Given the trial judge's ruling that the impugned charges be severed from the present indictment, it is difficult to see any basis for the applicant's complaint under this ground.
Whatever be the merit of the submissions as to abuse of process, the trial judge did not find it necessary to address them, and it is unnecessary for this Court to do so on this appeal. Should an indictment be filed concerning the alleged offences against DB, and DB continue to be unavailable as a witness, the judge has explicitly stated that it will be open to the applicant to make a stay application at that time in relation to such an indictment. As matters currently stand however, there is no basis upon which to find any error in the judge's ruling in relation to the charges, the subject of the current indictment.
Nothing I have said is intended to convey any view as to how any future applications should be regarded.
As to the refusal to certify, the trial judge correctly applied the test under s 295(3)(b) of the Criminal Procedure Act2009 in refusing to certify his decision. Section 295(3)(b) provides that a party may not seek leave to appeal unless the trial judge certifies
(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal …
In his ruling in relation to certification, his Honour stated that as the complainant is to give evidence in chief and as it has not yet been decided what parts of the record of interview should be admitted, and in order to avoid fragmentation of the trial, the evidence ‘presently admitted’ is not of sufficient significance to warrant
a grant of a certificate. The trial judge found that as the stay application did not relate to the present indictment which had been severed and as a stay application on a future indictment alleging offences against DB was not precluded, that ruling was not of sufficient importance as to require certification under the Criminal Procedure Act 2009.
I would therefore refuse leave to appeal from the refusal to grant a certificate.
PRIEST JA:
I agree.
SANTAMARIA JA:
I agree.
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