SV v The Queen
[2017] ACTCA 41
•4 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | SV v The Queen |
Citation: | [2017] ACTCA 41 |
Hearing Dates: | 5 July, 19 July 2017 |
Final submissions received: | 14 August 2017 |
DecisionDate: | 4 September 2017 |
Before: | Penfold ACJ |
Decision: | 1. The appellant is refused leave to amend his notice of appeal to add an appeal against conviction. 2. The parties will be heard on the orders required to ensure that there is no further delay in the hearing of the appeal against sentence. |
Catchwords: | APPEAL AND NEW TRIAL – appeal from Supreme Court – jury trial – sexual intercourse without consent – act of indecency. APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – initially unrepresented appellant – appeal against severity of sentence – application to amend notice of appeal to add appeal against conviction. APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – Particular Grounds – asserted discrepancy between forensic evidence and complainant’s evidence – difference between evidence of absence and absence of evidence – failure to call three-year-old child as witness – difference between competence and credibility – competence generally not to be tested before jury – no risk of miscarriage of justice identified. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5071 Crimes Act 1900 (ACT), s 287 Evidence Act 2011 (ACT), ss 13(1), 13(3), 13(5), 189, 189(1), 189(4) |
Cases Cited: | Doney v R (1990) 171 CLR 207 Faris v Conlon [2017] ACTSC 114 Vojneski v The Queen [2015] ACTCA 44 |
Parties: | SV (Appellant) The Queen (Crown) |
Representation: | Counsel Mr H Ford (Appellant) Ms K McCann (Respondent) |
| Solicitors Hugh Ford Law Practice (Appellant) ACT Director of Public Prosecutions (Crown) | |
File Number: | ACTCA 41 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Robinson AJ Date of Decision: 10 March 2016; 10 August 2016 Case Title: R v SV Citation: [2016] ACTSC 211 |
Introduction
On 10 March 2016, SV was found guilty in the Supreme Court, by a jury, of one count of sexual intercourse without consent, and one count of an act of indecency without consent, both offences having been committed during the night of 25-26 January 2015.
On 10 August 2016, he was sentenced for those offences, and for a related offence of common assault transferred from the Magistrates Court. The sentences were as follows:
(a)for sexual intercourse without consent, to 4 years imprisonment, from 9 March 2016 to 8 March 2020;
(b)for act of indecency without consent, to 12 months imprisonment, from 9 March 2016 to 8 March 2017;
(c)for common assault, to 3 months imprisonment, from 9 March 2016 to 8 June 2016.
The sentencing judge set a non-parole period of 2 years and 2 months.
The sentence appeal
On 2 September 2016, SV, unrepresented, filed an appeal against sentence, specifying his ground of appeal as “severity of sentence”.
For some time, little was done to progress the sentence appeal. However, eventually SV obtained legal representation, and his lawyer Mr Ford lodged an application to amend the notice of appeal to add an appeal against conviction. The application was eventually filed on 26 June 2017, although it did not attach a draft notice of appeal as required by r 5071 of the Court Procedures Rules 2006 (ACT), and the matter was listed before me for hearing on 5 July 2017.
Application for leave to appeal conviction – the hearing
Day 1: 5 July 2017
At the listed hearing date, Mr Ford appeared for the appellant, and produced a draft notice of appeal. He had not previously shown this document to the respondent. Copies of the draft notice of appeal were made by my associate and provided to me and to counsel for the respondent, and counsel for the respondent was given 15 minutes to read the draft notice, on the basis that Mr Ford would then make his submissions, but that if counsel for the respondent required further time before being asked to respond to his application, the matter would be adjourned.
Early in the hearing, I drew to the attention of the parties my decision in Vojneski v The Queen [2015] ACTCA 44, in which I set out at [20] the following matters to be considered on an application for leave to appeal a conviction out of time:
(a)Whether there is an acceptable explanation for the delay in filing a notice of appeal and, where applicable, in filing the application for leave to appeal out of time, and whether the explanation is sufficient to justify by-passing the legislated time-limits, having regard among other things to the applicant’s actions otherwise than in relation to the attempt to file an appeal.
(b)That prejudice to the respondent militates against a grant of leave, but absence of prejudice does not of itself justify a grant of leave.
(c) That prejudice to the respondent Crown might include:
(i)prejudice in conducting the appeal,
(ii)prejudice in conducting any new trial or other proceedings that might be ordered, and
(iii)the negative effects of a grant of leave on individuals, whether victims or others, who will be affected by the re-opening of proceedings after the expiry of the statutory appeal periods without any appeal having been filed.
(d)That the merits of the appeal are relevant to whether leave should be granted and, in particular, that leave should not be refused if the court considers that there is a reasonable probability that refusal might cause a miscarriage of justice.
Mr Ford indicated, however, that the appellant’s application for leave to appeal the conviction out of time depended on the assertion of a reasonable probability that a refusal of leave might cause a miscarriage of justice, and accordingly he did not propose to address the other specified matters.
During this hearing, Mr Ford queried the trial judge’s approach to whether the children were competent to give evidence. It was initially unclear whether the trial judge had tested the competence of the older child before he gave evidence; in due course it emerged that this had been done, but that no transcript had previously been obtained. Arrangements were made to obtain a copy of the relevant transcript.
At the end of the day, I made an order for Mr Ford to provide any further submissions and authorities by 12 July, and listed the matter for further hearing on 19 July.
Day 2: 19 July 2017
On 19 July, Mr Ford raised further issues relating to the role of the children in the appellant’s trial. His submissions went beyond the complaint in the draft notice of appeal of a failure to test their competence properly, and included whether the competency of the older child, who did give evidence, should have been tested in the presence of the jury, and whether the younger child should have been called to give evidence. Mr Ford also complained about the transcript of the trial judge’s competency inquiry in relation to the older child (at [70] to [77] below).
At the end of the brief hearing, I made orders for a further exchange of submissions dealing with the various matters raised by Mr Ford in relation to the children, and listed the matter for mention and possible judgment hand-down on 4 September 2017.
Draft notice of appeal
The draft notice of appeal set out the following grounds of appeal:
1. That the verdict of guilty is unsafe and should be set aside.
2. The prosecution bears the burden of proving beyond reasonable doubt that an offence has been committed. The prosecution has not discharged this burden. There are a number of doubts about the conviction, and therefore, the conviction should be set aside.
3. The weight of evidence indicates that no offence was committed. The appellant gave evidence that there was consensual sex on the bed. Both of the children have stated that they saw the appellant and the complainant on the bed and not on the floor. The expert evidence indicates that there was no DNA on the floor. The expert evidence indicates that the appellant was not bitten.
4. The Judge indicated on a number of occasions that there were doubts about the evidence.
5. The Judge should have directed the jury to return a verdict of not guilty. The judgment was unsafe, and the judge should have made judgement of acquittal or a judgment notwithstanding a verdict.
6. The Court did not properly test the competence of the children.
7. The marks on the complainant’s body were not caused by the appellant.
8. No DNA was found P89 L25.
9. The complainants [sic] evidence is false because they had sex on the bed and not on the carpet. P89 L40. Nothing was found on the floor. P90 L20.
10. This is a far better point for the accused. P89 L30.
Curiously, the order sought on behalf of the appellant was:
That the matter be remitted to the ACT Magistrates Court to be decided according to law.
I can make no sense of the reference to the ACT Magistrates Court.
Risk of miscarriage of justice
Having regard to Mr Ford’s advice as noted at [8] above, I invited him to make his submissions about the grounds of appeal with a view to identifying the basis on which I could be satisfied that a refusal of leave to appeal the conviction might cause a miscarriage of justice. Before addressing those submissions in detail, however, it is necessary to set out a general overview of the allegations against the appellant, and the progress of the trial.
Background
The complainant and her husband SV, the appellant, lived in Garran with their two children. The children were aged 8 years and 2 years (more specifically, 26 months) respectively at the time of the offences, and 9 years and 3 years at the time of the trial. The parents had separate bedrooms; the complainant shared her bedroom with the younger child and the appellant shared his bedroom with the older child.
The complainant’s allegations
The complainant said that on the night of 25 January 2015, when she refused a request for sex made by the appellant, he slapped her (the assault), fondled her breasts (the act of indecency) and eventually had sex with her, against her will, on the floor of her bedroom. She said that during the incident she had scratched and tried to bite the appellant.
The complainant said that when the appellant slapped her, she had called out to her older son, who was sleeping in the other bedroom. He had come into her bedroom, turned on the light and asked her what was happening. The appellant told his son to go back to bed, which he did.
The complainant said that the appellant left the room sometime later, but returned and tried to take the complainant to another room. When she resisted, he dragged her off the bed and had sexual intercourse with her on the floor of her bedroom. He ejaculated and then left the room.
The complaint to police
After the appellant left for work the next morning, the complainant reported the assault to police by telephone. While she was talking to police, she received a text message from the appellant saying “I am really feeling very bad & sad so so sooooorry”. Later that day, the complainant was examined by a forensic medical officer, who observed minor bruising and abrasions to her body.
The investigation
The appellant was arrested and cautioned, and then took part in a digital record of interview with police, during which he admitted to having had sex with his wife during the previous night, but said that it had been consensual. He submitted to a forensic examination by a doctor, who found various marks on the appellant’s face and upper body.
There was also a forensic examination of the complainant’s bedroom.
The trial
Evidence was given in the Crown case by:
(a)the complainant and her older child;
(b)three expert witnesses, being Dr Amanda Barry (a doctor at the Women's Health Service in Canberra and at Clinical Forensic Medical Services, Canberra Hospital), Dr James Eldridge (Forensic Medical Officer at Clinical Forensic Medical Services, Canberra Hospital), and Amy Van Bilsen (Crime Scene Investigator for the Australian Federal Police); and
(c)two police officers.
The complainant’s evidence was generally to the effect set out at [18] to [21] above.
The appellant gave evidence in his defence. He described going into his wife’s bedroom while the younger child was still brushing his teeth:
And whilst the second boy was still brushing his teeth, what did you do?---I go into my wife’s room.
Where was she?---She was in bedroom opposite on the left-hand side.
She was in her own bedroom?---Yes.
What was she doing?---She was just lying.
And what did you do?---We just play around a little bit.
Play around a little bit?---Yes, just before foreplay, before making love.
What did you do?---Just holding hands, hugging each other, then kissing. That’s it.
Did anyone come into the room?---Yes, I checked on the elder boy, Gannu.
Sorry, you’ve lost me. My question was, did anyone come into the room?---Yes.
Who came into the room?---Gannu, the eldest son.
How did he happen to come into the room?---She called him.
And when he came into the room, was there light in the room?---No.
What happened when he came into the room?---He turned on the light and asked what’s happening.
Did anyone answer?---I did.
What did you say?---I said, “Nothing. You go back to the room and sleep.”
Did he leave?---Yes.
Did he leave immediately?---Yes.
After the older child left the room, the appellant said, he had gone into the bathroom to finish the younger child’s toothbrushing, then put the child on his shoulder and walked with him for 10 or 15 minutes until the child fell asleep. At that point, the appellant said, he put the younger child in the complainant’s bed next to her. After that, the appellant said, he got into the bed next to the complainant. They engaged in some foreplay, discussed whether her period had ended, and then had sexual intercourse:
All right and how did you engage in sex?---We are just in the normal missionary position. She is lying and I lie over.
Who took whose clothes off?---I took her – well, pants and undies off.
Right and what about your clothes?---I took them off.
And did you then engage in sexual intercourse with her?---Yes.
Did you ejaculate in her?---Yes.
And where was this sexual activity taking place in that room?---Pardon please?
Where was the sexual activity taking place in your wife’s room?---On the bed.
And what about your son, the little son?---He was asleep.
And is that something that is common that the young boy would be asleep on the bed when you engage in sex?---Yes.
Consideration of appeal grounds
Some of the proposed appeal grounds raise what could be matters of substance, while others are no more than submissions; some of them do not raise anything that could possibly constitute an appeal ground.
Two of the grounds refer to the evidence of “the children”; as noted, the younger child was two years old at the time of the incident, and did not give evidence in any form.
The appeal grounds, the submissions made on behalf of the appellant, and my consideration of them, are set out below, although not in the order in which the appeal grounds are set out in the draft notice.
Appeal grounds 3, 8 and 9
These grounds are as follows:
3. The weight of evidence indicates that no offence was committed. The appellant gave evidence that there was consensual sex on the bed. Both of the children have stated that they saw the appellant and the complainant on the bed and not on the floor. The expert evidence indicates that there was no DNA on the floor. The expert evidence indicates that the appellant was not bitten.
...
8. No DNA was found P89 L25.
9. The complainants [sic] evidence is false because they had sex on the bed and not on the carpet. P89 L40. Nothing was found on the floor. P90 L20.
The only direct evidence of the offences came from the complainant. Mr Ford says that there were discrepancies in the evidence that should have raised a reasonable doubt about the complainant’s credibility. These discrepancies related to the complainant’s evidence that the sexual intercourse took place on the floor beside her bed rather than in the bed, and that she had bitten the appellant during his attack on her.
The complainant’s evidence
The complainant’s evidence was relevantly as follows:
Now, the night of 25 January 2015 - - -?---Yes.
- - - about what time did you go to bed that night?---Around 11 o'clock at night.
Did anything happen while you were in bed?---Yes.
What happened?---My husband - my husband came in my bedroom and lay down next to me and start hugging and kiss - tried to kiss me and then I said to him, "Just stop, stop".
All right. Where was - where were your children when your husband came into your bedroom and started to hug and kiss you?---My three-year-old was in the bathroom brushing his teeth and my nine-year-old was in the - in his bedroom.
All right. So after you said to - so after you asked your husband to stop, did anything else happen?---Yes, he still tried to hug and kiss me again and I still - again said to him, "Stop" and he said, "Why". I said to him, "I don't want anything" and he said, "I'm not doing anything. I'm just hugging you". I said to him, "No, I know what you are doing so stop it now" and he said, "Why". You know - he said, "Why you always say no" I said to him, "I'm tired, I don't want it" and he said, "You always tired". I said to him, "Yes, I am always tired because I work seven days a week, that's why I'm exhausted and I don't want it. That's why I'm trying you to stop now," and he said, "It's been a while, we didn't have anything" - and I said to him, "Yes, I know," and he said, "Do you know how long it's been, we didn't have anything between us." I said to him, "Yes, I do, it's been a month," and he said, "Yes, a month is a very big time," and I said to him, "Yes, for you, but not for me. I don't want it."
When you're talking about "it", what do you mean?---As in he wanted to have sex with me, that's what I'm trying to stop it by saying, "I don't want to have sex with you."
When you were talking about, "It's been a month"?---Yes.
What are you talking about?---That it's been a month that we didn't have sex.
Then what happened?---Then he still didn't stop and he tried to come over me, then I call my son - my nine-year-old son, I called him and he came.
When you say- talking about your husband- "he came over me", what do you mean by that?---Like, he was - - -
What was he doing physically?---Like, he hold my hands and he was just trying to come on top of me.
What was he doing to get on top of you?---To try to hug me more, like what he was trying before, so that's why I call my son and then he came and he said, "Mum, what happened?" Then my husband said to him, "Nothing, you go back to your room, we are just talking," and so my son left and then my - - -
When you called out to your son how were you? What sort of state were you in?---I was still in my bed and my husband was on top of me, and he was holding my hands, then I call my - - -
How was he holding your hands?---From wrists - from my wrists.
Where were your hands when he was holding your hands?---On top of me, like that.
So you're holding your hands in front of your chest there?---Yes.
Were you sitting up or lying down? I was lying down.
Apart from holding your hands - wrists - did anything else happen?---No, not at that time.
How were you feeling at that point in time just before you called out to your son? How would you describe your emotional state?---! was feeling angry at why he's not stopping and why even though I'm - I said to him that I don't want it but he's still not listening to me, and he's just trying to force him on me so I was angry.
So after your husband told your son to go back to bed, what happened?---Then my husband slapped me on my face very hard and I started crying, and then he said, "Okay, so you stay there crying," and he left the room, and I thought "that's it, maybe he won't come back", and I stayed in my bed. Then he left the room.
Did he come back?---Yes, he did come back and he said to me, "Don't dare to call the police," if I do that then he may hurt my parents in India or hurt my brother, who is in India too.
So when did he come back? How long after he had left?---A few minutes later. I don't know exact how long, but he did come back, maybe a few minutes or - I don't know. I don't know how long it took.
But he came back?---Yes.
What happened when he came back? What did he do?---First he said this to me, that "don't be dare to call the police", otherwise he's going to hurt my parents and then I said to him, "Okay, so you are scared now?" And he said to me, "No," and then he came and sat over me when I was in bed still, and then he slapped me again on both sides of my face, and he said my parents have given [me] no education, I know nothing and I should be thankful of him that he bring me to Australia, and things like that. So I said to him, "Okay, so what you're doing to me now, is that what your parents taught you to do?" Then he left the room again when I said this to him.
Did he come back to the room or did he stay away?---He did come back again with my three-year-old - was asleep in his arms so he bring my son back to my room and put him in my bed next to me where I was laying down before and then he start to touch my face again once he put my son down in the bed, then I said to him, "Stop," again, then he didn't stop. Then he came on top of me and just tried to force himself on me. I was pushing him back, I was scratching him and I did try and bite him too, so I thought that he will go away but he said, "Okay, so now you try to scratch me. Do what you can but I'm not stopping," and I said to him, "Why are you doing this to me? Why are you making" - - -
Where did you bite him?---On his shoulder.
Where did you scratch him?---On his face.
So then what happened?---Then he asked me to come to another room - to the living room. He asked me, "Come with me to the living room, I want to talk to you," and I said to him, "I don't want to talk to you," and then he dragged me down from the bed so I sat on the carpet, and then he was still dragging me and asking me to come to the living room, and saying that I can trust him, he only want to talk to me and he don't want to do anything, but I said to him, "I don't even want to talk to you," and then I hold the end of the bed so that he couldn't drag me any further. Then he said to me, "Okay, so if you are not coming then everything is happening here," and then he pushed me down on the carpet and then he - - -
What did he do?---And then he came over me, and he put his hand on my top, and then pulled my pants down, and then had sex with me, and I was still saying to me [sic], "Please don't do it."
When you say he had sex with you, what did he do?---He put his penis into my vagina. That's what he did.
How long?---Maybe a few minutes. I don't know how long it took.
Do you know whether or not he ejaculated?---He did.
Did he ejaculate inside you, or - - -?---Yes, he did.
Where was your three-year-old when this was happening?---In the same room, on my bed.
Do you know whether or not your three-year-old was awake or asleep?---He was asleep.
What were you wearing? What did you wear to bed?---Shorts and a top
Were you wearing underwear?---Yes
What sort of underwear? Were you wearing underpants or a bra?---Yes, I was wearing underpants and bra, both.
You mentioned that your husband pulled your pants down?---Yes.
Was your top and bra still on or was it off by that stage?---It was still on. He was trying to take my top off but I did manage that he couldn't do it.
How did he try to take it off?---He was putting his hands under and he did undo my bra and was trying to pull my top off but I - I don't know how I did, but I did manage that he couldn't do it.
Do you remember when that was? When did he undo your bra?---When?
In the course of that - - -?---The same time that he pushed me down on the carpet, then he did. But I don't know what exact time it was.
Do you remember anything else about that?---Yes, when he pulled my pants down he did look that - because he knew I'm having period, so he did look that do I still have it or not, so he did check my underwear, because I was getting a period, does it have anything on it? That's all I remember.
The child’s evidence
As noted, only one of the children gave evidence. The substance of his evidence emerged during his evidence-in-chief interview with police conducted on the day the complainant reported the matter to the police. It was that when he was called into the bedroom by his mother, his parents were both on the bed. The relevant discussion was as follows:
Q96Bedroom two. And when you went into bedroom two, what – what happened? What did you see?
AI saw my dad on his knees holding my mum’s hands like that.
Q97Okay. Can you tell me more about that?
ASo my mum was laying down and my dad was on his knees on the bed holding my mum’s hands.
...
Q118Okay. So you went from bedroom one into bedroom two and you saw your mum and your dad and you said you just went to the door, you didn’t go into the room? Tell me about that.
AYeah, I just went to the door.
Q119Just went to the door? And you said that you saw your dad on his knees on his bed.
AYeah.
Q120Tell me about that.
ASo he was like this on the bed.
Q121And you said that your mum was on the bed.
AYeah, my mum was laying down on the bed.
Q122Okay. And how far away were you from the bed?
ASo I drew the picture a bit fast so I was only about – not far. I was only about the – like this far from the bed.
Q123From the table there?
AYeah.
Q124Okay.
AAbout that far.
Q125Okay. And from where you were standing what could you see?
AI could see my dad on his knees and holding my mum’s hands.
The appellant is correct in saying that the child’s evidence was that his parents were on the bed, not on the floor. However, there is no discrepancy between:
(a)the child’s evidence of seeing his parents on the bed, the details of which were consistent with the details provided by the complainant and the appellant; and
(b)the evidence given by the parents, being:
(i)the complainant’s claim that sometime later (after the child had gone back to bed), she was pulled onto the floor, where sexual intercourse took place; and
(ii)the appellant’s claim that sometime later (after the child had gone back to bed), they had consensual sexual intercourse.
Evidence of forensic investigations
The carpet
The forensic investigator Amy van Bilsen gave evidence about her investigations in the complainant’s bedroom, saying that she had been advised that the incident had taken place on the floor on the right side of the bed, and that she and her colleagues had further narrowed down the test area by reference to information they had received:
MS McMURRAY: Can you give us the link as to why - what is the significance of not testing an area near where her head was as opposed to the lower portion of her body?---Of course. We were advised that the - that ejaculation had occurred inside the complainant and that directly after the incident, she had put her underpants back on and based on that information, we thought if there was any leakage, it would have been towards the middle and - the middle part of the bed and towards the bike and not in those areas that were labelled one and two.
Okay. Just talking about where you have labelled three and four, what was the significance of that?---Purely their location based on the information of where the ejaculation may have occurred and if there was any leakage, that would be that area that we should focus on - that we should target.
And you say if there had been any leakage. Did you know whether or not there had been any leakage?---Not at all. I was - I don't have that information.
Testing the identified areas had not revealed traces of semen, blood, or other DNA material.
Ms van Bilsen also gave evidence about whether semen could go undetected, as follows:
Is it possible - or is it possible that semen can go undetected by using those lights?---Certainly, certainly. I don't have the full knowledge of it. You would need to consult a biologist but it's simply a screening tool so it all depends on how much was deposited and the nature of the surface, whether it's carpet or it was cleaned or whatever but it's definitely not 100 per cent.
And what about the nature of the carpet, how does that affect the ability to detect semen?--- I don't have a lot of knowledge on that. Again that would be a biologist's area but it depends on what it would be made out of, how much and how old and I don't have that information.
The fact that no semen was detected in the identified areas does not lend any support to the complainant’s claim about the location of the sexual intercourse, but nor is it inconsistent with the complainant’s claim. I note also that the photographs of the areas tested show those areas very close to the side of the wooden bed; it is almost impossible to imagine that the complainant’s genital area could have been located so close to the bed while sexual intercourse took place in the manner that seems to be indicated by her evidence that the appellant was on top of her. This is not intended to suggest any weakness in the complainant’s evidence; rather, it suggests that the part of the carpet identified by the forensic investigators might not have been an area where there was any real likelihood of detecting semen or other DNA material from any sexual intercourse that did take place on the floor.
The bite marks
Dr James Eldridge examined the appellant on the day the complainant complained to police. At trial, he gave evidence of having observed various abrasions, scratches and red marks on the appellant’s upper chest, face, and upper back and shoulders, and provided photographs. He could not say how the various abrasions and other marks had been caused, or when. In relation to whether he had identified any of the marks as bite marks, he said:
All right but you certainly didn’t find any evidence of a bite mark on the shoulder of the accused person?---No and a bite - similar to the other - same I made before about marks. It’s actually with bite marks quite hard to identify a bite mark. There’s the classic round shape that people think of as a bite mark but it - - -
That wasn’t (indistinct) - - -?--- - - - it isn’t - it wasn’t there and even then it’s often difficult to say whether a bite mark is a bite mark or not.
But certainly you weren’t able to attribute a mark on the accused’s body to a bite at the time of the examination?---No, no, not specifically, no.
...
HIS HONOUR: Anyway, let’s - you ask the question and I think the doctor has got the idea of what you want to - of what the answer is that you are looking for?---In the case of a bite, there can be a whole range of marks left and that can range from no marks at all because the skin is quite pliable and may or may not bruise, it may or may not break through to small abrasions, bruises and then right through to that classic circular mark so it’s actually very difficult to identify whether or not a bite has taken place. There isn’t necessarily the classic type of bite mark that people immediately think of as a bite mark.
That is, Dr Eldridge’s evidence was:
(a)that the appellant did have abrasions, scratches and other marks on his face and upper body;
(b)that none of them could be positively identified as a bite mark; but
(c)that bites do not necessarily leave any particular kind of mark, or indeed any mark at all.
In summary, there was evidence of marks generally consistent with the complainant’s evidence of how she had resisted the appellant, but no evidence that either confirmed or excluded the complainant’s claim to have bitten him.
Evidence of absence and absence of evidence
Counsel is correct to say that:
(a)there was no evidence supporting the complainant’s evidence that the sexual intercourse took place on the floor; and
(b)there was no specific evidence from any other witness supporting the complainant’s claim to have bitten the appellant.
However, Mr Ford’s approach to the forensic evidence suggests a misunderstanding of what can be proved by forensic investigations, and by DNA evidence in particular.
Evidence proving the absence of sexual intercourse on the floor or the absence of a bite is not the same as the absence of evidence proving sexual intercourse on the floor or the biting of the appellant. The absence of evidence of DNA on the floor does not even prove the absence of DNA from the floor, and it certainly does not prove the absence of sexual intercourse on the floor.
Similarly, Dr Eldridge’s evidence did not establish that the appellant had not been bitten, only that the results of his examination did not establish that the appellant had been bitten but were not inconsistent with him having been bitten.
There is no substance to grounds 3, 8 and 9 to the extent that they challenge the complainant’s evidence that the sexual intercourse took place on the floor or that she had bitten the appellant during the incident.
Finally, as to the claim in ground 9 that the complainant’s evidence is false because the couple had sex on the bed and not on the floor, this amounts to the tautological assertion that the claim is false because it is not true. This claim does not advance the appellant’s position.
Appeal ground 7
Appeal ground 7 is:
7. The marks on the complainant’s body were not caused by the appellant.
Dr Barry gave evidence of observing a number of marks on the complainant’s face and body. She reported her opinion that some of the observed bruising had most likely been sustained earlier than the time of alleged sexual assault, but said:
It is not possible to age the remaining injuries to her arms, right breast and face with any degree of certainty though it is quite possible to have sustained ... these injuries within the time frame given.
Dr Barry’s opinion is not evidence that the marks on the complainant’s body were not caused by the appellant; it is evidence that the marks observed on the complainant’s body could have been caused within the relevant time frame, but that Dr Barry is not able to say that they were caused within that time-frame. In other words, the marks could have been caused as the complainant described. This evidence provides only weak support for the complainant’s claims, but it does not disprove them, and nor does it raise any particular doubt about them.
There is no substance to appeal ground 7.
Appeal grounds 1 and 2
These appeal “grounds” are merely submissions. They have no substance once the specific challenges to evidence are rejected.
Appeal ground 5
This ground is as follows:
The Judge should have directed the jury to return a verdict of not guilty. The judgement was unsafe, and the judge should have made judgement of acquittal or a judgement notwithstanding a verdict.
Counsel was not able to identify any basis on which the trial judge could have directed the jury to return a verdict of not guilty, or should have entered a verdict of acquittal despite the verdict returned by the jury.
Certainly a trial judge may direct a verdict of acquittal, or may instead discharge the jury from reaching a verdict and herself enter a verdict of acquittal (Crimes Act 1900 (ACT), s 287), but only where “there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” (Doney v R (1990) 171 CLR 207 at 214-215, and see also The Queen v LK [2010] HCA 17; 241 CLR 177 at [29], French CJ).
The complainant’s evidence, if accepted, was sufficient to make out all three charges. There was no application for the jury to be discharged, or even for the jury to be given a Prasad direction (The Queen v Prasad (1979) 23 SASR 161).
There was no relevant defect in the evidence in this trial. This ground must be rejected.
Appeal grounds 4 and 10
These grounds are as follows:
4. The Judge indicated on a number of occasions that there were doubts about the evidence.
10. This is a far better point for the accused. P 89 L30.
Ground 10 is a direct quote from the trial judge. The words, “This is a far better point for the accused”, were said as part of an extended exchange with the prosecutor (in the absence of the jury) about what reliance she was placing on the evidence of forensic testing:
MS McMURRAY: Your Honour, the Crown case was not relying on biology after the accused opened with consent not being in issue. I had had previous discussions with my friend about that I wasn't going to call any biology evidence, then as it turned out in cross‑examination there was a greater reference made to biology. As a result, I ended up having - I made an agreement with my friend to lead the biology evidence of the forensic examination and also through the informant of this. Now, my friend is going to cross‑examine in relation to, I've little doubt now, at this point in time, after having - that my friend will cross‑examine from this witness about where these swabs were taken.
One way or the other, there was no evidence that there was blood or sperm or DNA located from the swabs taken in the bedroom. My friend may make some submissions about that. My submission is essentially it can be, in essence, it's neither here nor there and I would be submitting that there's little weight to be given to it. I will have no issue with my friend locating that there was some swabs taken from the floor of the bedroom.
HIS HONOUR: Unless I have misunderstood this, this is a far better point for the accused.
MR SABHARWAL: Your Honour, there has never been an issue that the genital swabs of the complainant contained the defendant's DNA, that's not in issue.
HIS HONOUR: No. I thought you are going to argue ‑ ‑ ‑
MR SABHARWAL: That's right.
HIS HONOUR: - - - in the final analysis of this that the complainant's evidence is false because they had sex on the bed and not on the carpet.
(emphasis added)
That is, his Honour had identified one of the points sought to be relied on by the appellant in his appeal, namely that the absence of DNA evidence from the bedroom floor provided a basis on which the appellant could have argued, first, that the complainant had made a false claim about where the sexual intercourse took place and, secondly, that therefore her other claims might also have been false.
It is not clear from the transcript, at least to me, what his Honour was comparing with what when he said “This is a far better point for the accused”; he may have been suggesting that the lack of DNA evidence from the floor was a better point for the accused than for the prosecution (which it clearly was) or that it was a better point for the accused than some other unidentified point raised on behalf of the accused, but this does not matter. As already indicated, the absence of DNA evidence on the bedroom floor provided a starting point for an attack on the complainant’s credibility, but it did not prove that any of the complainant’s evidence was false. The limited significance of the evidence that no DNA was found on the bedroom floor is not enhanced by the primary judge’s comment that it was “a far better point for the accused”.
In oral argument Mr Ford effectively conceded that the comment quoted as ground 10 constituted the sole basis for the claim made in ground 4 that the trial judge had “on a number of occasions” indicated that there were doubts about the evidence. His submission before me was as follows:
HER HONOUR: Right. I'll just take you back to that last point. You said as the matter progressed his Honour became more concerned about the case. Now, you've identified that one point where he says, "This is a far better point for the accused."
MR FORD: And I suppose that's like a culmination - - -
HER HONOUR: Well, it's a culmination of what?
MR FORD: A culmination of - - -
HER HONOUR: I mean, it's clearly a comment about one particular bit of evidence, but what's it a culmination of?
MR FORD: It's also near the end of the whole proceedings and the appellant contends that's evidence of it reaching like a crescendo, like some sort of - - -
HER HONOUR: But what was reaching a crescendo? That's the only comment you've pointed me to where the judge suggests any concern at all about the evidence.
MR FORD: Yes, I accept that, your Honour, but it comes immediately after discussion about the forensic evidence and the DNA and it seems intimately linked in with the DNA issue, and the appellant's contention is the DNA issue is a very important issue to the credibility of the complainant. So when the evidence is led about there being no DNA evidence on the floor, his Honour's response is, "This is a far better point for the accused." Well, we'll never know, your Honour, but it's the appellant's contention that if there wasn't a jury, his Honour would've found - - -
Ground 4 cannot be made out, but would not have been useful to the appellant even if it had been accurate.
What might have been more relevant in this proposed appeal was a claim that, for instance, the trial judge did not properly put the defence case to the jury in that he did not draw the jury’s attention to the weaknesses or gaps in the evidence identified by trial counsel.
No such claim has been made in the proposed appeal grounds. I should make it clear that I am not suggesting that any such claim could have been made out; rather, it seems to me that the judge’s view of the evidence would generally only be relevant if that could be said to have inappropriately compromised the guidance given by the judge in summing up to the jury, or otherwise undermined the jury’s capacity to reach a fair verdict on the evidence.
Appeal grounds 6, 6A and 6B
Ground 6 as initially formulated was:
6. The court did not properly test the competence of the children.
As already described, this ground was in the course of the hearing expanded to include other grounds (identified for convenience, although not by Mr Ford, as grounds 6A and 6B). They can be summarised as follows:
6A. That the trial judge’s inquiry into the competence of the child witness should have been conducted in the presence of the jury.
6B. That the younger child was a material witness and the Crown should have called him to give evidence.
The competence of the older child
The child who gave evidence was 8 years and 3 months old when he spoke to police on 26 January 2015, a few hours after the incident, and 8 years and 11 months old when he gave evidence at a pre-trial hearing on 13 October 2015.
Provision of transcript
The nature of the application before me meant that the complete appeal index had not yet been settled. A transcript of the evidence given by the child at the pre-trial hearing was found in the court files, but it did not show the judge’s investigation of the child’s competence at the beginning of that hearing.
However, the audio recording of the evidence, which was available to the Court, did include a competence inquiry. Since Mr Ford was acting for the appellant pro bono, I arranged for my personal assistant to prepare a transcript from that audio recording, made copies available to the parties on 7 July, and invited written submissions on this appeal ground.
Mr Ford, however, was not happy about the “unofficial” transcript provided. Because the “official” transcript (prepared by Spark & Cannon) did not show any inquiry by the trial judge about the competence of the child witness to give evidence, he said that there remained a doubt whether the child was in fact tested for competence. He did say, however, in Court on 19 July 2017:
looking at the unofficial transcript ... it would appear to me that the court did, in fact, test for competence properly. So if, in fact, there was a test of competence ... that test was properly conducted by the court.
Later that day, Mr Ford said that the trial judge’s approach was “exactly the right way to do it”.
Given Mr Ford’s doubts about the “unofficial” transcript, I offered to arrange for him to listen to the audio recording of the competence inquiry and compare it with the “unofficial” transcript. He rejected this offer, saying that he would instead, at his own expense, order an official transcript of the relevant part of the proceedings. Later in the hearing, there was discussion about the absence of a transcript of the competence inquiry, and the following exchange took place between me and Mr Ford:
HER HONOUR: The question is if this appeal had - if this appeal had been brought in the proper way and at the proper time - - -
MR FORD: Yes.
HER HONOUR: - - -then by now there should have been a proper agreed appeal index of all the documents that were to be in front of the court for the purpose of the appeal.
MR FORD: Yes.
HER HONOUR: Now, because we’re actually having an argument at an earlier stage it’s just a matter of all the bits and pieces that are on the court file plus the transcript which, as I say, I got my PA to type up from the audio recording provided by the transcript people. When we - when the court gets transcripts these days and I believe other users too have the opportunity to buy - not just the hard copy transcript but also the audio recording.
MR FORD: Yes, your Honour.
HER HONOUR: Now, I don’t have the slightest problem, Mr Ford. If you want to go away and say, “I would rather get mine through the transcript providers ...”.
MR FORD: Yes.
HER HONOUR: - “rather than relying on what’s been provided in your Honour’s Chambers”. That’s perfectly fine.
MR FORD: I think that’s appropriate, your Honour.
HER HONOUR: I was purely trying to speed things up and save a little bit of money for people.
MR FORD: No, but I’m quite willing to pay for that, your Honour.
HER HONOUR: Right. Okay.
MR FORD: I think the appropriate approach is to - for me to go off and get the audio recording on a DVD - whatever - and listen to it.
HER HONOUR: Yes.
MR FORD: And then put further submission to you on the requirement for the test of competence to be before the jury.
HER HONOUR: Yes.
Provision of audio recording
On 6 August 2017, Mr Ford filed submissions about the competency issues. These included the following:
3The Court recommended that I obtain an audio CD of the proceedings where the elder of the two children was tested for competence. Given that there is a discreprency between the unofficial transcript and the official transcript, it was contemplated that the audio CD would put the matter beyond doubt.
4Unfortunately that is not the case. The transcript authority, Sparke and Canon have sent an audio CD. The audio CD however will not play on any machine. It will not play on a computer. It will not play on a stereo system. It will not play on a laptop.
5I have endeavoured to contact the provide [sic] to find out what is happening. The provider has not however got back to me to resolve the problem.
Presumably as a result of his difficulties with the “audio CD” provided by Spark & Cannon, Mr Ford made no further submissions about whether there was in fact an inquiry into the competence of the child witness.
Instead, he pursued the new grounds related to the children.
Determination of competence in presence of jury
Mr Ford made the following submission on this topic:
Even if it is accepted for one moment that the elder of the children was tested for competence, the fact remains that the elder child was not tested for competence in front of the Jury. Ultimately, the Jury need to be satisfied that the elder child is telling the truth. How can the Jury know that the child is or is not telling the truth if the Jury is not a party to the competence proceedings? Whilst I accept that the child's evidence can be given before the case begins, to adopt such an approach is in the opinion of the Defendant unsatisfactory. Ultimately it is the Jury who decides whether the witness is a person of credibility, and the ability of the Jury to make such a credibility assessment is hampered by the fact that the test for competence was not conducted in front of the Jury.
Section 189 of the Evidence Act 2011 (ACT) is as follows:
189The voir dire
(1)If the decision about a question whether—
(a)evidence should be admitted (whether in the exercise of a discretion or not); or
(b)evidence can be used against a person; or
(c)a witness is competent or compellable;
depends on the court finding that a particular fact exists, the question whether that fact exists is, for this section, a preliminary question.
(2)If there is a jury, a preliminary question whether—
(a)particular evidence is evidence of an admission, or evidence to which section 138 (Exclusion of improperly or illegally obtained evidence) applies; or
(b)evidence of an admission, or evidence to which section 138 applies, should be admitted;
is to be heard and decided in the jury’s absence.
(3)In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4)If there is a jury, the jury must not be present at a hearing to decide any other preliminary question unless the court otherwise orders.
(5)Without limiting the matters that the court may take into account in deciding whether to make an order under subsection (4), it must take into account—
(a)whether the evidence to be presented in the course of the hearing is likely to be prejudicial to the defendant; and
(b)whether the evidence will be presented in the course of the hearing to decide the preliminary question; and
(c)whether the evidence to be presented in the course of the hearing would be admitted if presented at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).
(6)Section 128 (11) (Privilege in relation to self-incrimination in other proceedings) does not apply to a hearing to decide a preliminary question.
(7)In the application of chapter 3 to a hearing to decide a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.
(8)If a jury in a proceeding was not present at a hearing to decide a preliminary question, evidence must not be presented in the proceeding of evidence given by a witness at the hearing unless—
(a)it is inconsistent with other evidence given by the witness in the proceeding; or
(b)the witness has died.
The competence of a child witness is a “preliminary question” as defined in s 189(1). Under s 189(4), “the jury is not to be present” at the hearing of such a question unless the court so orders. No such order was made, or sought, in the trial. Indeed, the appellant’s then counsel, correctly described in the respondent’s submissions as “experienced defence counsel”, told the Court that the competence of the child was “not a jury question”.
Mr Ford or the appellant might regard this position as unsatisfactory, but I am satisfied that the law does not require, and generally does not permit, competence to be determined in the presence of the jury.
I note that Mr Ford’s submission seems to confuse the concepts of competence and credibility. This point was made in Faris v Conlon [2017] ACTSC 114, in which Mr Ford submitted that, in the course of questioning a child witness to determine her competence, the Magistrate should have extensively questioned the child. Mr Ford said that the failure to do so meant that her Honour failed to realise that the child was a highly reliable witness, and that more detailed questioning by the Magistrate would have bolstered the child’s credibility.
In that case, Murrell CJ said at [56]:
This submission confuses two concepts. First, there is a presumption that every person is competent to give evidence: s 12 and 13(6) of the Evidence Act. In the case of N, there was never any significant question about her competence to give evidence and the Magistrate accepted that she was competent. Second, the determination of competence has nothing to do with a determination about credibility. Competence is concerned with whether a witness can give evidence; credit involves the fact-finder making a determination about the veracity of the evidence given by a competent witness.
The trial judge did not err in determining competence in the absence of the jury.
Crown’s obligation to call younger child
Mr Ford made the following submissions in support of his assertion that the prosecutor should have call the younger child to give evidence.
8Furthermore, and quire [sic] irrespective of the test for competence, the younger of the two children should have been called to give evidence. When that child was called, the Court should once again have tested the younger child for competence in front of the Jury. This did not happen.
9It is important to note that the prosecution is obligated to call all relevant witnesses. The rules don't say that the obligation to call a witness is qualified by the age of the witness. In this case, the child was in the room. Nobody knows whether the child was or was not asleep. Further, nobody knows what the child saw or did not see. The Court should not be presuming that the child is incompetent simply because of the child's age. Furthermore, even if the child is not competent, this of itself does not operate to preclude the younger child from giving evidence. The younger child can still give evidence even if the child is not competent. What happens if the younger child answers that he did not see mum and dad on the floor? If there was a violent altercation, then the child in all likelihood would have been awake.
Counsel for the respondent provided very helpful submissions in response to this claim, which I set out in full:
18.It is well established that the prosecutor in a criminal trial conducted under the adversarial system of criminal justice must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one". [Dyers v The Queen (2002) 210 CLR 285 at 293 [11] per Gaudron and Hayne JJ; [2002] HCA 45, quoting Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 per Deane J; [1983] HCA 42 (their Honours' emphasis).]
19.The objective of a fair trial requires the prosecutor to. call all available witnesses unless there is some good reason not to do so. Mere apprehension that testimony of a particular witness will be inconsistent with the testimony of other prosecution witnesses is not a good reason for not calling that witness. [(2002) 210 CLR 285 at 293 [11] per Gaudron and Hayne JJ] Nor is it a good reason that the witness is regarded as "in the camp of' the accused. [MFA v The Queen (2002) 213 CLR 606 at 629 [81] per McHugh, Gummow and Kirby JJ; [2002] HCA 53.]
20.In R v Apostilides (1984) 154 CLR 563, the High Court stated the following general principles in relation to the Crown's duty to call witnesses, at 575, per Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ:
We have come to the conclusion that the following material propositions are applicable to the conduct of criminal trials in Australia:
1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown;
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save for the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice.
21.The duty is to call all available material witnesses; however this duty is not unqualified. As their Honours continued, at 575-576:
We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a very heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards the accused person. A refusal to call a witness will be justified only by reference to the overriding interests of justice.
Such occasions are likely to be rare. The unreliability of evidence will only suffice where there are some identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.
22.This echoed what fell in the decision of Whitehorn v The Queen (1983) 152 CLR 657, at 674 per Dawson J:
... It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.
Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some other matter is such that in the circumstances it would be unnecessarily repetitious to call them, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by defence and should, if practicable, be present at court.
23.As noted in Dieham v Director of Public Prosecutions (Nauru) [2013] HCA 42 at [65], the use of terms such as "bound" and "duty" and "required" does not detract from the discretionary character of the prosecutor's function in relation to the calling of witnesses.
In considering whether the Crown breached its obligations by not calling the younger child to give evidence, the following comments can be made in response to Mr Ford’s submissions.
Mr Ford is correct that the obligation to call a witness is not qualified by the age of the witness. However, given that the child was 26 months old at the time of the incident, it would not have been surprising if neither his parents nor the investigating police questioned him about his observations during a period when, according to both the complainant and the appellant, he appeared to be asleep. Mr Ford does not suggest that the child had reported seeing or hearing anything during the night in question. Nothing has been put before me suggesting that the child was questioned, there is no basis for believing that the material that reached the Office of the Director of Public Prosecutions included any statement by the child or other record of observations by the child, and there is no basis on which the Crown should have identified the younger child as a material witness.
Given the child’s age, and the reports by both parents that the child was asleep during the incident in question, I can see no basis on which the Crown should have pursued the possibility of calling the child as a witness.
Nor was there any suggestion that, at the trial, defence counsel queried the Crown’s failure to call the younger child.
Mr Ford’s submission that “the younger child can still give evidence even if the child is not competent” suggests a further misunderstanding about the significance of competence in relation to a witness. A person who is not competent to give evidence is a person who does not have the capacity to give evidence (Evidence Act, s 13(1)). He or she, by definition, cannot give evidence.
A person who is competent to give evidence may not, however, be competent to give sworn evidence (Evidence Act, s 13(3)). A person who is competent to give evidence but not to give sworn evidence is competent to give unsworn evidence if the court has told the person various things about the giving of evidence (Evidence Act s 13(5)).
In summary, if the younger child was not competent to give evidence, then he simply could not give evidence. Mr Ford might have meant that the younger child could have given unsworn evidence even if he was not competent to give sworn evidence, which would have been correct, but there is no suggestion that the failure to call the child reflected an assumption that the child would not be competent to give sworn evidence.
Mr Ford might be correct that “Nobody knows whether the child was or was not asleep” (my emphasis), but evidence was given both by the complainant (quoted at [33] above) and by the appellant (quoted at [27] above) that he was asleep – indeed, the appellant gave evidence that he walked around the house with the younger child on his shoulder, and that after 10 or 15 minutes the child fell asleep, at which point he put the child into the bed next to the complainant.
Mr Ford might also be correct that “nobody knows what the child saw or did not see”. However, since it seems that, unsurprisingly, no-one asked the child whether he had seen anything relevant during the night, and the child did not volunteer having seen anything, neither the police nor the Crown had any ground for identifying the younger child as a material witness.
The Crown did not breach any obligation in failing to call the younger child to give evidence in the trial. In particular, I am satisfied that the failure could not have caused, or even contributed to, any risk that the trial involved a miscarriage of justice.
The trial judge’s approach
I am satisfied that the trial judge’s approach to the issue of the child’s competence, which was included in the “official” audio recording of the trial, was accurately set out in the “unofficial” transcript prepared in my chambers from that part of the audio recording. Accordingly, there is no need to give further consideration to the original appeal ground 6, given Mr Ford’s concession (at [72] above) that if the trial judge dealt with the competency of the older child as set out in that “unofficial” transcript, he had no complaints to make about the process.
Conclusions
None of grounds 6, 6A and 6B casts any shadow on the propriety or fairness of the trial. None of the appellant’s complaints about the role of the appellant’s children in the trial raises any possibility of a miscarriage of justice.
Conclusions
For the reasons given above, none of the proposed grounds of appeal against the appellant’s conviction raise any concern in my mind that there might have been a miscarriage of justice in the appellant’s trial.
Accordingly, I can see no basis for granting leave to the appellant to amend his notice of appeal to include an appeal against his conviction.
Noting that the appellant’s non-parole period will expire in just over eight months, I shall hear the parties on the orders that would be appropriate to ensure that there is no unnecessary delay in the hearing of the appeal against sentence.
| I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 4 September 2017 |
4
3