Sean Clarke[1] v The Queen - [2013] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0193

SEAN CLARKE[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:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2013
DATE OF JUDGMENT:	17 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 206
JUDGMENT APPEALED FROM:	DPP v [Clarke] (Unreported, County Court of Victoria, Judge Smallwood, 16 August 2012)

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CRIMINAL LAW – Appeal – Conviction – Incest – Attempted incest – Indecent act with child under 16 – Renewal of application for leave to appeal – Child complainants – Complainants’ evidence tape-recorded – Whether trial judge erred by cautioning jury about reliability of children’s evidence and recorded evidence – No risk of jury being influenced in a manner adverse to defence – Application refused – Criminal Procedure Act 2009 (Vic) s 375; Evidence Act 2008 (Vic) s 165A(1).

EVIDENCE – Criminal law – Sexual offences – Child complainants – Evidence tape-recorded – Whether trial judge erred by cautioning jury about reliability of children’s evidence and recorded evidence – No risk of jury being influenced in a manner adverse to defence – Application refused – Criminal Procedure Act 2009 (Vic) s 375; Evidence Act 2008 (Vic) s 165A(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

After a trial in the County Court, the applicant was convicted on a charge of incest (charge 5), a charge of attempted incest (charge 4) and two charges of an indecent act with a child under 16 (charges 2 and 3).

After a plea, the applicant was sentenced to be imprisoned for a term of 9 years and 2 months. A non‑parole period of 7 years was fixed.

An application for leave to appeal against conviction was refused by a single judge of the court. The applicant has elected to renew his application to a court constituted by two or more judges.

Having regard to the nature of the ground of application, the facts may be shortly stated.

The complainants were two of the applicant’s natural daughters.

Charge 2 arose from an occasion on which the applicant instructed his daughter to masturbate his penis after placing lubricant on her hand. The applicant said, ‘If you tell mum I’ll kill you’.

Charge 3 was constituted by the applicant rubbing his fingers on the vagina of his daughter when she was in the bath. Charge 4 concerned an occasion on which the applicant took his daughter into a bedroom, climbed on top of her and commenced going up and down, trying to insert his penis into her vagina. He was unable to do so,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSCA 206
Decision Date: 17 July 2013

CaseChat Overview and Summary

Sean Clarke appealed against his conviction for incest and related offences, arguing that the trial judge erred in cautioning the jury about the reliability of the evidence of child complainants and the reliability of recorded evidence. The case was heard in the Court of Appeal, where the appeal was against the conviction. The central legal issues were whether the trial judge's comments about the reliability of the children’s evidence and the recorded evidence were appropriate and whether these comments contravened statutory provisions that aim to protect the credibility of child witnesses. The court examined the statutory provisions in the Criminal Procedure Act 2009 and the Evidence Act 2008, which prohibit judges from casting general doubt on the reliability of children's evidence or the recording of that evidence. The court found that the trial judge's remarks, although not intended to single out children specifically, were general enough to imply that children's memories and interpretations are inherently unreliable, which is contrary to the legislative intent to protect the credibility of child witnesses. The remarks potentially placed the evidence of child witnesses in a special category due to their age, which is not aligned with the spirit of the legislative provisions. Therefore, the appeal was dismissed, and the application for leave to appeal was refused. The court did not find that the trial judge's comments posed a risk of influencing the jury adversely to the defence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It seems to me, with respect, that jurors would have understood his Honour’s statements that ‘[children’s] memories can become blurred’ and that ‘[t]hey can potentially … misinterpret things’ – as general statements about the fallibility of children’s memories and of their interpretations of events. Counsel for the applicant submitted that those statements were contrary, if not to the letter, then at least to the spirit and the underlying policy of s 165A(1), in particular sub-ss (b) and (c). Section 165A(1) provides: 165A Warnings in relation to children’s evidence(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following—(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses;(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults;(c) give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child;(d) in the case of a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. In my respectful view, that submission is also well founded. Although his Honour disavowed any intention to comment on children generally, the remarks were expressed in general terms and were calculated to invite greater scrutiny of the complainants’ evidence than if they had not been witnesses of a young age. His Honour’s expression of scepticism about the reliability of children’s memories would seem to be contrary to the clear legislative policy in s 165A(1). That section was enacted in Victoria on the basis of a joint recommendation of three Law Reform Commissions, based on experience in New South Wales with a like provision.[2] The policy underpinning the recommendation had been clearly spelt out in an earlier discussion paper, as being to: The tenor of his Honour’s remarks, as I have said, seems to have had the effect of placing the evidence of child witnesses — and of course, relevantly, the child witnesses in this case — in a special category because of their age. I note, however, that the Crown, in response to a question from the bench, did not accept that these remarks were contrary to either the letter or the spirit of the provisions. The clear language, and policy, of s 375 and s 165A would seem to preclude a judge from expressing any generalised concern to the jury either about the tape recording procedure or about the reliability of children’s evidence. It would, I think, be appropriate for the Criminal Charge Book Editorial Committee, which maintains a close watch on jury directions, to examine this issue. The Committee might consider whether, in the light of the decisions referred to in argument,[4] any clarification is required concerning the scope and limits of comments by a judge on topics of this kind. [4]C M G v The Queen [2011] VSCA 416; K R I v The Queen [2012] VSCA 186; R v Barker [2010] EWCA Crim 4.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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