Talib Meer v The Queen
[2022] VSCA 164
•18 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0183 |
| TALIB MEER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 August 2022 |
| DATE OF ORDERS: | 9 August 2022 |
| DATE OF REASONS: | 18 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 164 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1841 (Judge Lacava) (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – Eight charges of rape – Whether substantial miscarriage of justice caused by admission of evidence of applicant’s prior sexual conduct against another woman – Whether substantial miscarriage of justice caused by admission of other evidence or absence of directions to jury on use of impugned evidence or prior inconsistent statements – Alleged failures of defence counsel at trial – Whether substantial miscarriage of justice caused by exclusion of certain evidence – Whether substantial miscarriage of justice caused by prosecutor’s examination of applicant’s wife whom he called as prosecution witness – Leave to appeal granted – Appeal allowed – Convictions set aside – New trial ordered.
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| Counsel | |||
| Applicant: | Mr T Kassimatis QC with Ms GF Connelly | ||
| Respondent: | Ms E Ruddle QC | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KYROU JA
NIALL JA:
Introduction and summary
On 10 August 2021, a County Court jury found the applicant guilty of eight charges of rape.[1] The alleged offending comprised seven incidents between 28 June 2014 and 18 October 2014, when the complainant was aged 15 and 16. At the time, she with living with the applicant, his wife Shakila Meer and their two young sons.
[1]The applicant was charged with an additional charge (charge 9) alleging sexual penetration of a 16 or 17 year old child under his care, supervision or authority, contrary to s 48 of the Crimes Act 1958. As charge 9 was an alternative to charge 8 and the jury found him guilty on charge 8, no verdict was returned on charge 9.
On 18 November 2021, a County Court judge sentenced the applicant as follows:[2]
[2]DPP v Meer [2021] VCC 1841 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Rape [Crimes Act 1958, s 38(1)] 25 years 6 years Base 2 Rape 25 years 5 years — 3 Rape 25 years 6 years — 4 Rape 25 years 5 years — 5 Rape 25 years 5 years 1 year 6 Rape 25 years 6 years 1 year 7 Rape 25 years 6 years 2 years 8 Rape 25 years 6 years 2 years Total Effective Sentence: 12 years Non-Parole Period: 8 years Other Relevant Orders:
1 Sentenced as a serious sexual offender on charges 3 to 8 pursuant to pt 2A of the Sentencing Act 1991.
2 Reporting for life under s 34 of the Sex Offenders Registration Act 2004.
The applicant sought leave to appeal against his conviction on grounds that a substantial miscarriage of justice was occasioned due to the following:[3]
(a)the admission of certain evidence, the absence of any direction to the jury on the use of that evidence and associated failures of defence counsel (grounds 1 and 1A);[4]
(b)the erroneous exclusion of certain evidence (ground 2);[5]
(c)the adduction of irrelevant and prejudicial evidence from Ms Meer by the prosecutor and his unfair treatment of her (ground 3);[6] and
(d)the absence of any direction to the jury as to how to use prior inconsistent statements (ground 4).[7]
[3]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
[4]Grounds 1 and 1A are set out in full at [37] below. Defence counsel who appeared at trial did not appear for the applicant before us.
[5]Ground 2 is set out in full at [80] below.
[6]Ground 3 is set out in full at [94] below.
[7]Ground 4 is set out in full at [111] below.
At the conclusion of the hearing of the application for leave to appeal on 9 August 2022, we made the following orders:
1The application for leave to appeal is granted.
2The appeal is allowed.
3The convictions sustained by the appellant in the County Court are set aside.
4A new trial is ordered.
5Without prejudice to any application for bail he may make, the appellant is remanded in custody to appear for mention in the County Court on 15 August 2022 at 9 am.
At the time we made these orders, we stated that we would publish our reasons for making them at a later time. These are our reasons.
Prosecution case
Uncontested context evidence
The applicant was born in Pakistan in 1985. He migrated to Australia in 2010 and is an Australian citizen. At the time of the alleged offending, he was 29 years old and lived in a Victorian town with his family. The applicant’s brother, Fida, lived in Melbourne.
The complainant was born in Afghanistan in September 1998. She migrated to Australia in 2007. She and her family lived in the same town as the applicant and were members of the local Hazari community. The applicant spoke their language and was aware of their culture, customs and beliefs.
The applicant was employed at the local junior secondary college as a multicultural education aide. He supported migrant students, including students from the Afghan community such as the complainant.
In 2014, when the complainant was 15 to 16 and a Year 9 student, she began having difficulties at home and discussed them with the applicant.
The complainant subsequently decided to leave home and telephoned the applicant. He picked her up from her home and took her to the police station to inform the police that she would be living with him and his family. He then took her to his house, where she was accommodated in the guest room between June and November 2014. The Department of Health and Human Services (‘DHHS’) sanctioned the arrangement.
In August 2014, the police obtained an intervention order on behalf of the complainant against her father. They obtained similar orders on behalf of the applicant and Ms Meer against the complainant’s parents and a leader of the local Hazari community.
At the end of 2014, the applicant and his family moved to Queensland. After the complainant left the applicant’s home, she lived locally in the home of a friend (DA). She then moved to Melbourne with the assistance of Fida and lived there for five to six months. In 2016, she reconciled with her family and returned to live with them and attended Year 11 at the local senior secondary college.
Prosecution witnesses
The prosecution called the following witnesses:
(a)the complainant;
(b)the complainant’s mother;
(c)LC, a teacher at the local junior secondary college;
(d)Marilyn Tonge, a DHHS child protection officer to whom the complainant’s case was allocated;
(e)BH, the principal of the local senior secondary college;
(f)Sergeant Aimee Mazza, the police officer who applied for the intervention orders referred to at [11] above;
(g)Detective Acting Sergeant Jacqueline Brymer, the informant; and
(h)Ms Meer, who gave exculpatory evidence.
The complainant’s evidence in chief is set out at [15]–[26] below.
The complainant had issues with her mother on matters such as home duties and looking after her siblings. She discussed her situation with the applicant. He started telling her that she was not in ‘our country’ here, there were options for her and that she could leave home for a bit and that would ‘teach [her] parents a lesson … that they can’t treat [her] like that here’. He said he would help her and planned her moving out with her. He told her to wait until she was 16 before leaving home because she would have more rights. Subsequently, she had an argument with her mother and sister. Her sister told her ‘why don’t you leave? We don’t want you here’. This prompted the complainant ‘to take the step even more’. She was furious and decided to leave home that day. She called the applicant and told him that she wanted to leave home that day. The applicant picked her up from her home and drove her to the police station, where he answered most of the questions from the police. The applicant then took her to his house and she commenced living there. Initially, the room she was given was unfurnished and, in the early period, she would stay in the bed the applicant shared with Ms Meer.
After the complainant moved into the applicant’s home, she continued to have some contact with her family and wear a traditional head scarf. The applicant encouraged her to cease wearing the scarf.
Soon after the complainant began living with the applicant, she was visited by an officer from DHHS, Marilyn Tonge. The applicant pre-warned her about the arrival of Ms Tonge. He made up a false story for her to tell Ms Tonge, namely, that she had to leave home because her parents were trying to force her into an arranged marriage. She would have told Ms Tonge that story. But that was not the reason she left home. Long before she left home, her mother had advised her of a proposed marriage. However, her parents accepted her desire to study more and did not ‘push [her] into doing it’.
The applicant and Ms Meer consumed alcohol at home. When they did so, they would tell her that she could try some, which she did. She said that, one day, the applicant told her that she should not drink anymore because he was scared that DHHS might do a blood test and find out that he was giving her alcohol. The complainant was not cross‑examined on this evidence.
The applicant bought a bed and other bedroom furniture for the complainant. On the day that the furniture was delivered, she was in her bedroom and the applicant’s sons were playing in the living room. The applicant came into her room. He grabbed her by the arm and made her stand up. He was touching her ‘everywhere’: her arms, shoulder, breasts, lower back and upper body. She first thought that he was joking around with her, but then realised that he was not stopping. Her mind was racing and she did not know what was going on. She wanted to push him away, get away and yell, but she felt like her whole body had shut down. He took her clothes off and put her on the bed. She wanted to resist but she could not move. She tried to cover her upper body with her arms. He took his clothes off and lay on top of her. He then got off her and put on ‘protection’. He got back on top of her and put his penis into her vagina, causing a sharp pain (charge 1, rape). Everything went black in front of her eyes. After he got off her again, he warned her that she should not mention it to anyone else otherwise it would not be good for her. He then left her room.
The complainant did not tell anyone about the incident at the time because she was scared due to the applicant’s threat and she had no friends at that time. She wanted to move back home, but she was scared to face her parents.
The second incident occurred when Ms Meer was absent at a swimming lesson. The complainant was in her bedroom. She was sitting on the floor, putting on some nail polish. The applicant entered the room. He stood her up, took her clothes off and put her on the edge of the bed. He pulled his pants down and penetrated her mouth with his penis (charge 2, rape). He then put her on her back on the bed, took his clothes off and penetrated her vagina with his penis (charge 3, rape). He left the room while she was crying. The incident was like torture for her. She was frozen and her head started to spin.
On the third incident, the complainant was in the living room where Ms Meer was asleep on the floor. The applicant came into the room and signalled to the complainant to be quiet. He took her by the hands and led her into the bathroom. He closed the door and pushed her down on her knees. He started taking his pants off. He grabbed her by the back of her head and put his penis in her mouth (charge 4, rape). He then asked her to leave the bathroom. She went straight to her room.
The fourth incident occurred at night while the complainant was doing homework at a study table in the lounge room. Ms Meer and the children were asleep in their bedrooms. The applicant left his bedroom, closing the door behind him. He went to the complainant, pulled his pants down and grabbed her by the neck, forcing her face towards his penis. He penetrated her mouth with his penis (charge 5, rape).
The fifth incident occurred after a school sports day at a local oval. The complainant participated in the sports day and returned home with the applicant. No one else was home and the complainant knew what was going to happen. She went straight to her bedroom and closed the door. The applicant entered her room. He had protection with him. He came towards her, pushing her on the bed and touching her body. She was scared and closed her eyes. He penetrated her vagina with his penis on the bed (charge 6, rape). He left the room and she thought he was in a hurry to pick up Ms Meer and the children.
In relation to the sixth incident, the applicant and Ms Meer were both drinking in the lounge room and watching movies. The complainant was in bed in her bedroom. The applicant entered her bedroom, holding Ms Meer, who was really drunk. He put Ms Meer down on the bed next to the complainant, who was attempting to cover herself with a blanket. The applicant took the complainant’s clothes off, put on ‘protection’ and penetrated her vagina with his penis in the presence of Ms Meer (charge 7, rape). Ms Meer was very drunk and quite drowsy. Ms Meer did not say or do anything. The applicant looked at Ms Meer while he had sex with the complainant. After he finished, he asked Ms Meer ‘do you feel jealous?’ Ms Meer could not say anything. She was almost passed out. The applicant went to the bathroom, came back to the complainant’s room and carried Ms Meer out of the room. The next morning, the applicant and Ms Meer were in their bedroom. Something was going on and, after that, Ms Meer seemed upset with the complainant.
The seventh incident occurred after the complainant’s 16th birthday, when the local show was taking place. The applicant asked her to go into his bedroom. Ms Meer was in the bedroom and was drunk. He asked Ms Meer if she was ‘fine with this’ and she said that she was. The applicant grabbed hold of the complainant and put her down on his bed near Ms Meer. He took the complainant’s clothes off while she said, ‘please don’t do this’. He put on ‘protection’. He inserted his penis in the complainant’s vagina while she tried to keep her legs closed to prevent him from doing so (charge 8, rape). When he finished, he asked the complainant to leave his bedroom.
The complainant gave the following evidence in cross-examination. During the period of the offending, Ms Tonge offered her alternative accommodation but she declined the offer and continued living in the applicant’s home. She was in court when an intervention order was sought by the police on her behalf, but could not recall what the police told the court. If the police said that she left home because she overheard a conversation about an arranged marriage in Pakistan, that was not true.
The complainant’s mother gave the following evidence in chief. There was no tension between herself and the complainant. The applicant had ‘tricked’ the complainant into leaving home. Two days after the complainant’s departure, the applicant visited their home and told her and her husband that the complainant was safe and was living with his family. The applicant told her and her husband not to go to court or hire a lawyer. He made things up to obtain an intervention order. A DHHS officer named Marilyn told her that the complainant was safe at the applicant’s house.
In her evidence in chief, Ms Tonge stated that: she had determined that the applicant’s home was a satisfactory arrangement for the complainant; DHHS obtained a protection order from the County Court which gave DHHS authority to supervise the complainant and give directions in relation to her; she had contact with the complainant at least weekly; and she would speak with the complainant alone and in the presence of the applicant or Ms Meer. In cross-examination, Ms Tongue stated that: the complainant told her that she had left home because her parents wanted to send her to Pakistan for an arranged marriage; the complainant appeared happy living with the applicant and Ms Meer; the complainant threatened to self-harm if she was removed from their home; and the complainant said that she would go straight back to the applicant’s home if she was removed from there.
Complaint evidence
The complainant gave the following complaint evidence. After she moved out of the applicant’s home, she told Fida about the applicant’s offending.[8] At some point, she told her friend, DA, about what the applicant had done to her. After she returned to live with her parents in 2016, she told BH (the principal of the local senior secondary college) about the applicant’s offending.[9]
[8]The complainant’s evidence of her discussion with Fida is set out at [46] below.
[9]BH’s evidence about her discussion with the complainant is set out at [39] below.
The police interviewed Fida, but he declined to give a statement and was not called to give evidence.[10] DA also declined to make a statement and was not called to give evidence.[11]
[10]Sentencing remarks, [36].
[11]Sentencing remarks, [37].
It is common ground that, after the complainant spoke to BH, BH informed Ms Tonge of the complainant’s allegations and Ms Tonge then alerted the police. The applicant was later arrested and charged.
Defence case
The applicant gave the following evidence in chief:
(a)He met the complainant through his work. She told him that her parents were taking the income she earned from her job at Coles and had made several offers of arranged marriages for her. She also told him that, as a result of this pressure about an arranged marriage, she started to self-harm and wanted to leave home. He did not offer his home to the complainant. Ms Meer did so and he did not favour this. He took the complainant to the police station after he collected her from her home in order to obtain their advice about the situation. At his home, the complainant stayed in her own room. The complainant slept in the same room as Ms Meer when she experienced nightmares. He never slept in the same room as the complainant and did not tell her to stop wearing a head scarf.
(b)The complainant was in regular contact with her siblings through FaceTime and he would have been glad if she returned to her family home, as he was under a lot of pressure and stress from the local community. Initially, he had regular contact with the complainant’s parents. After they made threats against him, he arranged for the police to obtain intervention orders. He denied that he told the complainant’s parents not to go to court.
(c)He did not drink alcohol to excess and, because the complainant was ‘underage’, he did not offer her alcohol. He has never seen Ms Meer drunk.
(d)He never had sex with the complainant.
The applicant gave the following evidence in cross-examination. Prior to the complainant coming to live at his home, there was ill-feeling towards him within the local Hazari community because Ms Meer did not wear a head scarf and an article in the local newspaper described him as an atheist. He first became aware that the complainant was contemplating leaving home when he was informed of this by LC (a teacher at the local junior secondary college) and DJ (a retired teacher at that college) one or two weeks before she actually left. She told him that she had spoken to Kids Helpline, legal aid, LC and DJ, and that DHHS was going to help her. He denied that he engaged in any of the sexual activities described by the complainant and disagreed with the prosecutor’s proposition that, in his evidence, he had ‘just simply told lies about [his] involvement’.
Ms Meer was initially a co-accused in relation to charges 7 and 8, but those charges against her were discontinued. She was not listed as a witness in the indictment against the applicant. Following a complaint by defence counsel during pre-trial discussion, the prosecutor agreed to call her. Although she was a prosecution witness, she gave the following exculpatory evidence in chief:
(a)She worked at the same school as the applicant and knew the complainant as a student at the school. The complainant told her a few times that her parents wanted to get her married and that she had self-harmed and tried to commit suicide. The complainant called her in a distressed state after the complainant had an argument with her parents. Both she and the applicant went to pick up the complainant from her home. The complainant stayed at her house from June until November 2014.
(b)The complainant was given the guest room in their home, which originally had a mat, a pillow and a few blankets. She stayed on the mat with the complainant when the complainant had nightmares but eventually shared her bed with the complainant — without the applicant being in the bed — because Ms Meer was having back pains from sleeping on the mat.
(c)She consumed alcohol but, because her young children might need her in the middle of the night, she was never drunk.
(d)The applicant sometimes consumed alcohol but he never got drunk.
(e)The applicant never had sex with the complainant in her presence.
Other aspects of Ms Meer’s evidence in chief are discussed under ground 3. She was not cross-examined by defence counsel.
Grounds 1 and 1A: Wrongful admission of evidence; failings of defence counsel
Grounds 1 and 1A were in the following terms:
[1]A substantial miscarriage of justice was occasioned by:
(a)the admission of evidence that was either irrelevant or where the danger of unfair prejudice outweighed its probative value, namely:
(i)an admission by the applicant to having raped his brother-in-law’s wife;
(ii)giving the complainant alcohol; and
(iii)that the applicant controlled the complainant’s bank account; and/or
(b)the absence of any direction to the jury in relation to the use of that evidence.
[1A]A substantial miscarriage of justice was occasioned by the failure of defence counsel to:
(a)Object to the admission of certain evidence, namely
(i)an admission by the applicant to having ‘done this’ to his brother-in-law’s wife; and
(ii)giving the complainant alcohol; and
(iii)controlling the complainant’s bank account; or, alternatively,
(b)apply for discharge of the jury following the adduction of the evidence of the admission to having ‘done this’ to his brother‑in‑law’s wife; and
(c)seek that the trial judge direct the [jury] as to the use to [be] made of that evidence; and
(d)put to the complainant that neither the applicant nor his wife ever gave her alcohol; and
(e)either
(i)put to the complainant that she did not complain to the applicant’s brother, Fida and that Fida did not tell her that he has argued with his brother about the alleged offending; and/or
(ii)adduce evidence from the applicant that Fida did not confront him with the complainant’s allegations; and/or
(iii)seek a ‘Jones v Dunkel’ direction pursuant to s 43 Jury Direction Act 2015 regarding the prosecution failure to call Fida as a witness; and/or
(iv)adduce evidence from Fida contradicting the complainant’s account;
in circumstances where, objectively ascertained, there was no forensic benefit in not doing so.
Impugned evidence
Grounds 1 and 1A deal with three items of impugned evidence: the applicant’s sexual conduct against his brother in law’s wife; the giving of alcohol to the complainant; and the applicant’s control of the complainant’s bank account. Those grounds also deal with the complainant’s evidence of her discussions with Fida. Set out below are details of each of the four items of evidence and, where relevant, parts of the prosecutor’s closing address and the judge’s charge.
(a)Applicant’s sexual conduct against his brother in law’s wife
BH (the principal of the local senior secondary college) gave evidence in chief that she spoke to the complainant in February 2016 and that she took notes of their discussion. She signed a police statement, but that statement was not in evidence. Her evidence in chief included the following answer to the question ‘Do you recall what it was that [the complainant] said had happened to her that time?’:
She started by saying to me that in that period of time Talib who was a worker at [the local junior secondary college] had asked — had helped her to leave her family to not live with her family because their family had discussed an arranged marriage and he had helped her and but she soon realised that she felt that he had taken that opportunity and that maybe had set that up but when she was living in the home with him um, that he had taken advantage of her. When she said; ‘do you know what I mean by taken advantage of me’ I said; ‘I think I do know what you mean’ but she went on to clearly explain that Talib had raped her and taken her virginity and she um, was very upset during that conversation. She said that she had lived in the time that she was living in that home um, that he had raped her on a number of occasions um, she said the first number of times that he had done that she resisted but then she realised that she didn’t have — she didn’t feel like she had any choice um, she felt um, disgusted and horrified by what was happening to her in that time but she didn’t feel like she could go home. She didn’t feel like she had any options. She was told — she told me that Talib had told her that he had done this to his — to someone else to his brother in law’s wife and she was really upset by the things that he had told her. She said; ‘he told me horrible and disgusting things that he had done’ but she did not tell me what those were. She said that she had wanted to tell me that this had happened and she wanted to tell her case worker at DHS Marilyn Tonge but she didn’t know how to do that and she needed — she wanted my help to tell Marilyn and she tried to and wanted to tell Marilyn in the day before when they had met at her home because DHS were closing her case the day she came to me she said I wanted to tell Marilyn but my parents were there. I didn’t know how to tell my parents. I didn’t want to hurt them or upset them. I didn’t know how to say it with my parents there. She then — that’s okay. She then told me in my statement some other things that she went and told me more detail about um, but I also — so then we contacted Marilyn Tonge at DHS. I disclosed what had been disclosed to me and Marilyn came to the school and we met with Marilyn, and she repeated her story to Marilyn um, and she was very clear in telling the same story to Marilyn that she had told me.[12]
[12]Emphasis added. In the transcript, there is no apostrophe in the italicized word ‘law’s’. As that is an obvious typographical error, we have corrected it and will refer to the word in its corrected form.
Defence counsel did not object to this evidence and did not seek any directions in relation to it. We note that BH’s notes and police statement were available to defence counsel prior to the trial.
In his closing address, the prosecutor referred to the complainant’s delay in complaining about the applicant’s offending and stated that delay in making a complaint in respect of a sexual offence is a common occurrence. He stated that the complainant eventually ‘got up enough courage to speak to [BH]’ about the offending. He said that the applicant’s offending involved the ‘taking advantage of a fragile young girl who’s in [his] home, ostensibly being cared for by [him], being looked after and being totally confused by the physical conduct that’s going on between [him] and her’. He did not refer to the evidence of the complaints to Fida or DA.
In his charge to the jury, the judge gave standard directions regarding complaint evidence, including the reasons why a complainant may delay in making a complaint. He did not refer to the complainant complaining to Fida or DA and said that the jury had heard evidence that the complainant did not make a complaint about the offences until she spoke to BH in February 2016. He quoted in full the passage from BH’s evidence set out at [39] above and then stated the following:
Now it is for you to determine whether the complainant said those things to [BH]. If you find that she did, you can use what she said in two ways. First, you can use the content of what the complainant told [BH] as evidence in this case. For example, you can use the complainant’s statement that the [applicant] had raped her, as evidence that he had sexually penetrated her. Secondly, you can use the complainant’s complaint to assess her credibility. The fact that the complainant made the complaint to [BH], and the contents of that complaint, may show that her account of the events in question has been consistent with the evidence that she gave here in court.
In this case the prosecution submitted that the fact that the complainant complained about the alleged incident in this manner, makes it more likely that she is telling the truth here in court, because she has been consistent in what she said to [BH], and what she has said to you here in the court room in giving her evidence.
Defence counsel did not take exception to any aspect of the judge’s charge.
(b)Complainant’s consumption of alcohol
The complainant’s evidence relating to her consumption of alcohol is set out at [18] above and the applicant’s evidence on this issue is set out at [33(c)] above. Ms Meer was not asked whether she or the applicant offered the complainant alcohol.
(c)Applicant’s control of the complainant’s bank account
The complainant gave evidence in chief that, after she started living with the applicant, she received a youth allowance from Centrelink, which was paid into a bank account controlled by the applicant. She said that she also had a part-time job at Coles and that her salary was paid into a bank account that she controlled. The complainant was not cross-examined on this evidence.
(d)Complainant’s discussion with Fida
In evidence in chief, the complainant was asked about where she lived after she moved out of the applicant’s house. In that context, she gave the following evidence in relation to Fida, about which she was not cross-examined:
Had you got a place to go to?---I didn’t have before but I spoke with my friend [DA] at school and she said I can stay with her for a little bit. But I had also spoken to [the applicant’s] brother and he was the one who said I can come down to Melbourne.
What’s his brother’s name?---Fida.
When you say - - -?--- And they - - -
When you say you spoke to his brother, when did you do that? ---It was after [the last] incident [of offending] and I told him you know this has happened — I told him everything I said you know this has happened and he wouldn’t believe me in the beginning and — he also had a fight with Talib afterwards — he did have contact with Talib and he questioned Talib about all this too.
In cross-examination, BH stated that the complainant told her that she had tried to tell the applicant’s brother what had happened to her or what the applicant had done to her and the applicant’s brother did not believe her.
Statutory provisions relevant to grounds 1 and 1A
Section 59(1) of the Evidence Act2008 sets out the hearsay rule. It provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. Section 66(2)(b)(ii) relevantly provides an exception to the hearsay rule for a criminal proceeding in respect of a previous representation made by a person who has been called to give evidence, who is a victim of an offence to which the proceeding relates and who was under the age of 18 when the representation was made.
Section 97(1) of the Evidence Act provides as follows:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Section 101(2) of the Evidence Act relevantly provides that ‘[t]endency evidence about an accused … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused’.
Section 137 of the Evidence Act states that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Section 43 of the Jury Directions Act 2015 (‘JDA’) provides as follows:
43Direction on prosecution not calling or questioning witness
(1)If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—
(a)was reasonably expected to call or question the witness; and
(b)has not satisfactorily explained why it did not call or question the witness.
(3)In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 43(2) qualifies the threshold for giving a requested direction. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
Parties’ submissions on grounds 1 and 1A
In oral submissions, the applicant clarified that ground 1A is ancillary to ground 1, rather than an independent ground. He also clarified that, of the three items of impugned evidence referred to at [38] above, it was contended that only the first item — BH’s evidence about the applicant having ‘done this’ to his brother in law’s wife — was sufficient on its own to constitute a substantial miscarriage of justice. He added that, if this Court did not accept that contention, then it was submitted that the combination of all three items of impugned evidence constituted a substantial miscarriage of justice.
The applicant argued that, having regard to the context in which BH stated that the complainant told her that he had said that he had ‘done this’ to his brother in law’s wife, his alleged statement could only be interpreted as an admission by him that he had raped his brother in law’s wife. It was said that, so construed, the evidence of that statement was highly prejudicial and had no probative value. According to the applicant, the absence of probative value arose because the evidence was not directly relevant in proof of the charged acts, nor did the prosecution rely upon it in rebuttal of good character or as evidence of a tendency to rape. He contended that, if the evidence had any probative value, it was outweighed by the danger of unfair prejudice and therefore it was wrongly admitted and caused the ‘oath against oath’ trial to miscarry.
The applicant submitted that, even if BH’s impugned evidence of a prior rape was admissible, there was a substantial and compelling need for directions confining its legitimate use and guarding against its misuse. Instead, so it was said, the judge read the evidence to the jury in the course of his directions to them on complaint evidence and specifically invited them to treat it as evidence in the case and as relevant to the credit of the complainant. The applicant argued that the failure to give appropriate directions further caused the trial to miscarry.
The applicant contended that the complainant’s evidence about him giving her alcohol had nothing to do with the charged acts and was prejudicial for two reasons. First, giving alcohol to a child is illegal. Secondly, the evidence invited the jury to find that he sought to prevent authorities from finding out matters relevant to the complainant’s wellbeing. It was said that this evidence was a form of implied admission. According to the applicant, although the complainant was not challenged about this evidence, he denied ever offering her alcohol — which was also not challenged — and Ms Meer was not asked about it. He argued that the significance of the evidence was not explained to the jury and it functioned only as a source of prejudice against him and Ms Meer. He submitted that there was a real likelihood that the jury impermissibly used this evidence to reason that he was the kind of person who committed the charged offences.
The applicant contended that, although the summary of prosecution opening referred to the complainant’s evidence that he controlled her youth allowance as bearing upon the relationship of control, the way in which his control of the bank account related to their relationship or to the alleged offending was not explored in evidence. He argued that, in circumstances where the complainant was formally placed in his care, her evidence was probative of nothing. According to the applicant, because no direction was given to the jury on how this evidence may and may not be used, there was a real likelihood that the jury used the evidence of formal control alone to reason improperly that he exploited or manipulated her and was thus the kind of person likely to have committed the charged offences.
The applicant submitted that there was no good reason for defence counsel not to object to or seek to constrain the use of the three items of impugned evidence the subject of ground 1. In relation to BH’s impugned evidence of a prior rape, the applicant also submitted that defence counsel’s failure to seek a discharge of the jury, or take exception to the judge’s direction which referred to that evidence, was inexplicable.
The applicant contended that the jury heard unchallenged evidence that the complainant’s first complaint was to his own brother Fida, who then confronted him about the complainant’s allegations. The alleged confrontation was said to be the ‘sting in the tail’ regarding the complainant’s evidence of her complaint to Fida. He argued that the prosecution’s failure to call Fida or explain why he was not called entitled the applicant to a direction under s 43 of the JDA. It was said that there was no sound reason for defence counsel not to seek such a direction, call Fida or challenge the complainant in cross-examination about her claim that Fida was the first person to whom she complained and that Fida confronted the applicant. He argued that, because no direction was given under s 43, the jury might reasonably have thought that the means by which to challenge the complainant’s evidence lay within the control of the defence and that the failure to challenge the complainant spoke powerfully against him. According to the applicant, defence counsel’s failures in relation to the complainant’s evidence of complaint to Fida and the absence of any direction on how the evidence could and could not be used caused a substantial miscarriage of justice.
The Crown submitted that the three items of impugned evidence were relevant and properly admitted. It contended that the fact that defence counsel did not object to the evidence or seek to exclude it pursuant to s 137 of the Evidence Act reinforced the argument that it was properly admitted and did not cause a substantial miscarriage of justice. It was also said to be significant that those imbued in the atmosphere of the trial — the prosecutor, defence counsel and the judge — did not see any risk that the impugned evidence might be used improperly by the jury.
The Crown argued that, whilst the words attributed to the applicant in BH’s impugned evidence imply that he had engaged in sexual acts with his brother in law’s wife, they do not invite the conclusion that those acts were non‑consensual. According to the Crown, BH’s impugned evidence was of a previous representation by the complainant of something the applicant had said to her during the period of the offending, and was not led to prove its truth or as an admission by the applicant to having raped his brother in law’s wife. The Crown submitted that the statement was led to show that the applicant told the complainant about engaging in sexual acts with another person in order to normalise sexual activity, or extramarital sexual activity, for the complainant. The Crown relied upon the prosecutor’s statement in his final address that the complainant was ‘totally confused by the physical conduct’ between the applicant and her.[13] The Crown contended that BH’s evidence regarding the representation made by the complainant was properly admitted pursuant to s 66(2)(b)(ii) of the Evidence Act.
[13]See [41] above.
According to the Crown, the judge repeated BH’s answer in full during his charge to the jury on complaint evidence and made it clear how that answer could be used. It argued that the judge’s direction was sufficient to focus the jury’s attention on the legitimate use of the evidence and there was no substantial and compelling reason for the judge to give any directions that were not requested.
In oral submissions, senior counsel for the Crown conceded that there was a real risk that the jury may have construed the words ‘he had done this to his … brother in law’s wife’ as an admission by the applicant that he had raped his brother in law’s wife and that such reasoning would have been very prejudicial to the defence. Counsel did not accept a suggestion from the Bench that the judge’s direction exacerbated the risk but she did accept that the direction did not overcome the risk. However, counsel submitted that the more logical construction was that the applicant had consensual sex with his brother in law’s wife. Counsel contended that the judge correctly directed the jury that they could use BH’s impugned evidence to assess the complainant’s evidence, which did not refer to the applicant telling her that he had sex with his brother in law’s wife. According to counsel, this inconsistency between the complainant’s evidence and BH’s evidence may explain why defence counsel did not object to BH’s evidence.
The Crown submitted that evidence that the applicant offered the complainant alcohol was relevant and had probative value. That was said to be because it was led — together with evidence that he was an atheist and encouraged her to stop wearing a head scarf — to demonstrate that he had engaged in controlling or grooming behaviour towards her by offering her a less restrictive home environment with greater freedoms and experiences which are not usually available to a practising Muslim.
The Crown contended that, as the complainant was under the applicant’s care, his allowing her to try alcohol, of itself, carried no more vice than a parent allowing his or her child to try alcohol in their home, which is not a criminal offence.[14] According to the Crown, it was not suggested that he forced her to have alcohol or that she consumed it to the point of intoxication. It was said that, as the applicant denied offering the complainant alcohol, her evidence regarding her alcohol consumption could not be a ‘form of implied admission’. The Crown argued that the admission of the evidence did not function as a source of prejudice and there was not a real likelihood that the jury impermissibly used this evidence to reason that he was the kind of person who committed the charged offences. It submitted that there was no substantial and compelling reason for the judge to give a direction regarding the risk of improper use of this evidence. It also submitted that, even if there was any possibility that this evidence might be used improperly, it would have been a legitimate forensic decision for defence counsel to not seek a direction about its use, so as not to risk giving the evidence more prominence than it was due.
[14]The Crown relied upon the Liquor Control Reform Act 1998, s 119(5)(e).
The Crown contended that the complainant’s evidence that the applicant controlled her bank account was relevant as evidence of him exercising control over her. It argued that evidence of such control was capable of being used to rebut an argument that the complainant could have complained at an earlier stage or left the applicant’s home at any time. That was said to be because his control over her finances clearly contributed to her sense that she was ostracised and trapped. According to the Crown, there was no real risk that the jury might misuse the evidence, given it could not, of itself, be characterised as ‘other misconduct’.
The Crown submitted that defence counsel’s decisions not to object to or seek judicial directions on the three items of impugned evidence were matters falling within counsel’s discretion as to how to conduct the defence. It contended that none of the three items of impugned evidence presented a very obvious or overwhelming prejudice to the applicant and any failings on the part of defence counsel did not constitute a material irregularity that led to a miscarriage of justice, either on their own or in combination.
According to the Crown, the prosecution did not rely upon the complainant’s evidence about Fida as complaint evidence. It acknowledged that the reason for Fida not being a witness was not explored at the trial. It argued that, in any event, there was a clear forensic advantage in defence counsel not seeking a direction about any purported failure to call Fida. That advantage was said to be that such a direction would only serve to highlight that there was possibly an earlier complaint made by the complainant to the applicant’s brother. The Crown noted that the jury were directed — both in relation to complaint evidence and delay in complaint — that the complainant did not complain about the offences until she spoke to BH in February 2016. It submitted that, in those directions, the jury were provided sound guidance as to the evidence they could use for that purpose.
Decision on grounds 1 and 1A
In our opinion, the admission of BH’s evidence that the complainant told her that the applicant had said to her that he ‘had done this to his … brother in law’s wife’, on its own, constituted an error or irregularity in the trial which resulted in a substantial miscarriage of justice.[15] We are unable to conclude that the error or irregularity made no difference to the outcome of the trial.[16] It follows that ground 1 is made out.
[15]Criminal Procedure Act 2009, s 276(1)(b).
[16]Baini v The Queen (2012) 246 CLR 469, 479 [26].
We agree with the applicant’s submission that, considered in context, the only logical meaning of the words ‘he had done this to his … brother in law’s wife’ was that the applicant had admitted to raping his brother in law’s wife. That meaning is clear from the fact that the words were preceded by BH’s recounting the complainant’s allegations that the applicant had raped her on a number of occasions and were followed by BH’s description of the things the complainant had said he had done as ‘horrible and disgusting’. We reject the Crown’s submission that the words ‘he had done this to his … brother in law’s wife’ could be construed as referring to consensual sexual activity.
The impugned evidence about the prior rape had no probative value other than through impermissible tendency reasoning, namely, that the applicant had a tendency to rape women and therefore he was the sort of person who would have committed the rape offences for which he was charged. It is to be noted that the prosecution did not file a notice under s 97(1) of the Evidence Act of its intention to adduce the evidence as tendency evidence and did not purport to rely upon it as such.
We reject the Crown’s submission that the impugned evidence was relevant because the complainant was confused by the applicant’s sexual acts and he told her that ‘he had done this to his … brother in law’s wife’ in order to normalise the sexual activity. There is no support for this submission in the evidence of either the complainant or BH, it was not relied upon by the prosecution and it is extremely improbable that the jury would have understood the evidence as relevant on that basis. The evidence indicates that the complainant well understood that the applicant’s alleged conduct was not normal and constituted sexual abuse.
The impugned evidence was entirely unnecessary for the purpose of informing the jury that the complainant had complained to BH about the applicant’s offending. Evidence of the substance of the complaint could have been given without any reference to any sexual activity between the applicant and his brother in law’s wife.
Even if, contrary to our conclusion, the impugned evidence had some legitimate probative value, this was outweighed by the danger of unfair prejudice to the applicant through impermissible tendency reasoning. It should not have been admitted. As we have already stated, its admission constituted an error or irregularity in the trial which resulted in a substantial miscarriage of justice.
We accept that the impugned evidence was included in BH’s police statement and therefore defence counsel had knowledge of it prior to the trial. However, the fact that he did not seek a prior ruling that the evidence be excluded or object to its admission at the time BH was giving evidence does not alter the above analysis. There was simply no conceivable forensic benefit to the applicant from the admission of the impugned evidence.
If the judge had given the jury a strong direction that they must disregard the impugned evidence, an issue would have arisen as to whether such a direction could have overcome the unfair prejudice to the applicant. However, the judge did not give such a direction. On the contrary, as is apparent from [42] above, the judge repeated the impugned evidence in his charge and directed the jury that they could use it not only in assessing the complainant’s credit but also as evidence in the trial. The judge’s imprimatur on the use of the impugned evidence served to magnify the unfair prejudice to the applicant and exacerbated the magnitude of the miscarriage of justice resulting from that evidence.
Our conclusion that the admission of the impugned evidence regarding the applicant’s alleged rape of his brother in law’s wife resulted in a substantial miscarriage of justice was, in our opinion, sufficient to warrant the making of the orders set out at [4] above that the applicant’s convictions be set aside and that there be a new trial. In these circumstances, it is not necessary for us to consider the other two items of impugned evidence referred to at [38] above. It suffices to say that the admission of those items did not, alone or in combination, constitute a substantial miscarriage of justice. Further, we are of the view that the admission of the evidence of the complainant’s discussion with Fida and the failure of the judge to give a direction under s 43 of the JDA regarding Fida’s absence did not cause a substantial miscarriage of justice.
As ground 1A was ancillary to ground 1 rather than an independent ground, our conclusions at [74] to [77] above mean that it is not necessary for us to discuss it.
Strictly speaking, our conclusions at [74] to [77] above also mean that it is not necessary for us to discuss grounds 2, 3 and 4. However, as the parties made detailed submissions on those grounds, we will discuss them briefly.
Ground 2: Wrongful exclusion of evidence
Ground 2 was in the following terms:
A substantial miscarriage of justice was occasioned by the erroneous exclusion of evidence that the complainant had confided in [DJ] and had told him she had a plan to move to Melbourne to stay with friends.
LC, a teacher at the local junior secondary college, made a statement to police dated 10 June 2020 which was not in evidence. In the statement, LC said that there was a retired teacher at that college who volunteered to read with students daily and he told LC that the complainant had confided in him ‘about the situation she was facing’ and also told him that she had a plan which involved moving to Melbourne and staying with a friend there.
During cross-examination, LC said that the retired teacher’s name was DJ. Defence counsel asked LC whether it was her understanding that DJ was a confidant of the complainant. LC stated ‘She confided in him, or the thing was’ before the prosecutor objected. In the absence of the jury, the judge ruled that the proposed evidence was inadmissible hearsay and opinion evidence. The judge observed that defence counsel had not put to the complainant her conversation with DJ or whether he was her confidant.
As appears from [15] and [28] above, the complainant and her mother gave evidence that the applicant encouraged the complainant to leave home.
As appears from [34] above, the applicant gave evidence that he first became aware that the complainant was contemplating leaving home when he was told by LC and DJ one or two weeks before she actually left.
In his closing address, the prosecutor effectively conceded that the complainant had decided to leave home independently of the applicant. The prosecutor stated that the prosecution did not call DJ because he was considered not to be relevant or helpful to the jury. The prosecutor added that the prosecution called plenty of other teachers and defence counsel could have ‘asked them anything he liked about all of this’.
Section 66A of the Evidence Act sets out an exception to the hearsay rule for contemporaneous statements by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Section 60(1) provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.[17]
[17]The hearsay rule is contained in s 59 of the Evidence Act, which is set out at [48] above.
The applicant submitted that evidence that the complainant confided to another person that she had a plan to move out of home before she confided in the applicant was relevant to a fact in issue, namely, her state of mind about her family circumstances before leaving home and her reasons for doing so. He contended that the evidence was relevant to whether the complainant left home because she had real problems there or because she was manipulated into doing so by the applicant, and also to the jury’s assessment of the evidence of the complainant and her mother as to why she left home. He argued that the evidence was admissible under s 66A of the Evidence Act and, once admitted for that purpose, it could be used as evidence of the asserted facts under s 60(1).
The applicant submitted that the prosecutor should have called DJ as a witness and defence counsel should have put to the complainant what she had said to DJ and, if she denied the conversation, he could have led evidence of the conversation from LC as a prior inconsistent statement by the complainant. He contended that, in any event, the fact that defence counsel did not put the inconsistency to her did not justify the exclusion of LC’s proposed evidence.[18] It was said that, had the evidence been admitted, he could have sought a direction under s 43 of the JDA on account of the prosecution’s failure to call DJ.
[18]The applicant relied upon MWJ v The Queen (2005) 222 ALR 436, 449 [41]; [2005] HCA 74.
According to the applicant, the prosecutor in his closing address appeared to concede, contrary to the complainant’s evidence, that her decision to leave home was reached independently of the applicant. The applicant argued that this did not make the error immaterial because the prosecutor wrongly told the jury that DJ was not a relevant witness and that defence counsel could have adduced the evidence through other witnesses, in circumstances where the prosecutor had successfully resisted its admission. According to the applicant, the exclusion of the evidence of the complainant’s conversation with DJ amounted to a substantial miscarriage of justice.
In our opinion, ground 2 is not made out.
It is not necessary for us to decide whether the evidence that the complainant confided to DJ that she was planning to move to Melbourne and stay with a friend was admissible under s 66A of the Evidence Act and whether the judge erred in refusing to allow the applicant to adduce that evidence. That is because the applicant being prohibited from adducing LC’s proposed evidence did not give rise to any unfair prejudice.
It was abundantly clear from the complainant’s evidence that she was unhappy at home and had thought about moving out well before she actually did so.[19] The proposed evidence that the complainant discussed leaving home with a retired teacher and had a plan about where she might go was not inconsistent with the evidence of the complainant and her mother that the applicant encouraged her to leave home and that this encouragement contributed to her decision to leave home. Accordingly, even if DJ had been called to give evidence, his evidence would not have materially affected the complainant’s credibility or her evidence about her decision to leave home. It would simply support a conclusion that the complainant was planning to leave home for some time independently of the applicant, consistent with the position adopted by the prosecutor in his final address. DJ’s evidence would not have detracted from the complainant’s evidence that the applicant encouraged her to leave home and agreed that she could live with him and his family.
[19]See [15] above.
More fundamentally, the question whether the complainant decided to leave home independently of the applicant could not have had any material impact upon the credibility or reliability of the complainant’s evidence that, once she commenced living in his home, he raped her.
Ground 3: Unfair treatment of Ms Meer by the prosecutor
During the hearing of the application for leave to appeal, the applicant sought leave to amend ground 3. As the Crown did not object to the amendment, leave was granted. Ground 3, in its amended form, was in the following terms:
A substantial miscarriage of justice was occasioned as a result of the prosecutor:
(a)alleging bias against [Ms Meer] in circumstances where he had not given her an opportunity in evidence to address that imputation;
(b)adducing evidence that [Ms] Meer had been investigated for her complicity in the applicant’s offending; and
(c)failing to put to [Ms] Meer the complainant’s account of the events said to give rise to charges 7, 8 and 9.[20]
Evidence and prosecutor’s closing address relevant to ground 3
[20]See n 1 above in relation to charge 9.
As we have already stated, Ms Meer was called by the prosecution and gave the exculpatory evidence summarised at [35] above. Notwithstanding that the prosecutor did not seek leave to cross-examine her under s 38 of the Evidence Act, he asked her a series of questions about her involvement in the applicant’s offending. The evidence relevant to ground 3 is as follows:
Now you know that at some stage it was said that you were involved in some sexual activity with — well you and your husband were involved in some sexual activity with [the complainant]?---I was informed of that in 2018 by the police they told me.
Well they spoke to you and asked about it didn’t they?---Yes they did.
Yes, and they told you what it was — what was said you had done didn’t they?---Sorry?
They told you what it was that was said you had done?---Yes.
Do you remember what it was said that you had done?---I think — I don’t remember exactly but I think the officers mentioned that I had sex with [the complainant] or my husband had sex with [the complainant] and my husband had watched them having sex.
Not, were you accused of actually having sex yourself or not?---I don’t remember that.
No, but you certainly remember you were being accused of being present when your husband had sex?---Yes.
Was that on more than one occasion that they said that had happened?---I think they mentioned two times.
Twice?---Yes twice.
In fact were you present when that happened?---No it didn’t happen.
Well you — do you mean by that answer that you’ve never been present when your husband had sex or that you never had sex with [the complainant]?---I mean by that I said I know my husband and he can never do something like that.
No. I just — these were the allegations about you that you were present when he did it?---Yep.
And you say you were not present when he did that?---Yep. I was not present and I don’t believe he has done that.
Right. It said — or it was said to you that you were drunk when this happened?---Yep.
Do you remember that being said?---Yes, yep.
And that you have never been drunk?---I have never been drunk, yeah. I drink but I don’t drink to that amount.
All right. And it was also said that you were completely naked?---Yes.
Do you remember that being said?---Yes, I do.
And is that correct or not? Were you naked?---Ah, it didn’t happen so I don’t know how to answer that question.
All right. Okay. So you were never naked in the presence of your husband and [the complainant] at the same time?---No.
Defence counsel did not object to any aspect of Ms Meer’s evidence in chief and did not cross-examine her.
In his closing address, the prosecutor relevantly said the following about Ms Meer:
It’s a most unusual circumstance for a teacher … engaged at a school who’s interacting with this student in this way and clearly, red flags were flying around everywhere. People were concerned that this may lead to something and surely it has. The authorities, the school, DHHS were all keeping a close eye on this.
Again, that’s been brought into this trial as an issue but in my submission to you, it’s not really an issue at all. It’s simply a fact of the matter that everybody knew of this arrangement. So what? So what? But what the authorities didn’t know was what was happening behind the four walls of that home. They didn’t know that. They were never going to know that unless the complainant exposed it because the accused man wasn’t going to expose it, nor was his wife going to expose it. No one. It wouldn’t have seen the light of day and that was the dilemma that the complainant had, the young girl had, superimposed on the difficulties that any person who’s been the subject of sexual assault has with that matter, she had even more difficulties because of the cultural background and so it is important in that sense to have regard to what was said about all those matters. So it gives you a proper overview of her position and the difficulty that she was going to be confronted with.
…
[T]he last two incidents … have occurred with [the applicant’s] wife being involved … [A]ccording to the complainant’s evidence … she was intoxicated to the point of passing out … I understand she says I don’t know, it never happened. Well that’s explicable in my submission to you on the basis that she was that intoxicated she wouldn’t know.[21]
Parties’ submissions on ground 3
[21]Emphasis added.
The applicant submitted that the prosecutor’s statement about Ms Meer conveyed that the offending would not be exposed by her because she was a partial or biased wife rather than because she did not know about the offending due to intoxication. According to the applicant, the statement was unfair to Ms Meer as a witness and to him because it invited the jury to dismiss her evidence, and therefore it should not have been advanced without giving Ms Meer a chance to address it.
In oral submissions, senior counsel for the applicant stated that the prosecutor’s examination of Ms Meer portrayed her as a woman who often drank with her husband and was so morally bereft that she consciously, albeit under the influence of alcohol, lay there and allowed her husband to rape a child. Counsel contended that the prosecutor did not directly put to Ms Meer the complainant’s evidence concerning charges 7 and 8 and that, despite this, he implicitly invited the jury to prefer the complainant’s evidence to that of Ms Meer. Counsel argued that once the prosecutor planted the seed of Ms Meer’s complicity in the applicant’s offending, it was difficult to counter that. According to counsel, all the matters raised in support of ground 3 gave rise to a substantial miscarriage of justice.
The Crown submitted that ground 3 can only relate to charges 7 and 8 (and 9) because Ms Meer was alleged to have been present during the offending the subject of those charges.
The Crown contended that the impugned passage in the prosecutor’s closing address was made to highlight that it was all on the complainant’s shoulders to expose or remove herself from the applicant’s offending behaviour. It argued that the prosecutor did not expressly or impliedly allege bias against Ms Meer. It also argued that the prosecutor was not seeking to impugn Ms Meer’s credibility, or submit that she had sought to protect the applicant or had tailored her evidence in order to assist his case. According to the Crown, the prosecutor went no further than advancing the contention that Ms Meer was intoxicated and was not fully cognisant of what was going on during the offending.
The Crown submitted that it was not necessary for the prosecutor to explicitly put to Ms Meer that she was so intoxicated at the time that she was unaware of the applicant’s offending the subject of charges 7 and 8 (and 9). That was said to be because she was plainly aware of the allegations involving her and was given ample opportunity to respond to the substance of those allegations and the criticism of her evidence.
The Crown contended that the impugned passage in the prosecutor’s closing address was not inappropriate. It argued that neither the judge nor defence counsel raised any concern that the closing address was unfair, which was a significant consideration. Alternatively, it submitted that, if the prosecutor should not have said what he did, no substantial miscarriage of justice was occasioned.
In oral submissions, senior counsel for the Crown conceded that the evidence that the prosecutor sought to elicit from Ms Meer about the police accusing her of being involved in the sexual offending against the complainant was not relevant to a fact in issue in the case and was not helpful to the defence. However, counsel did not concede that this evidence was prejudicial to the defence. Counsel submitted that, whilst the prosecutor’s questioning of Ms Meer was ‘ham-fisted’, it did not constitute a deliberate attempt to discredit her.
Decision on ground 3
In our opinion, ground 3 is made out.
In circumstances where the prosecutor called Ms Meer and did not seek leave to cross‑examine her, it was not permissible for him to seek to undermine her credibility. Yet, that was precisely what was achieved by his questions about the police allegations of Ms Meer’s involvement in the offending against the complainant. Contrary to the oral submissions of senior counsel for the Crown, those questions were not only irrelevant and conferred no benefit upon the defence, they caused substantial prejudice to the defence. That is because they seriously damaged the credibility of one of the two witnesses who gave exculpatory evidence.
The prosecutor’s treatment of Ms Meer as a prosecution witness was entirely unfair. He did not directly put to her the complainant’s account of the applicant’s conduct the subject of charges 7, 8 and 9 but skirted around the issue by focusing upon how the police accused her of being complicit in that offending. Also, he did not put to her that she had witnessed the offending the subject of charges 7, 8 and 9 and protected the applicant by not disclosing the offending to the authorities. Yet, that was the clear implication of the statement ‘nor was his wife going to expose it’ in his closing address.
We reject the Crown’s submission that the reference to that non-disclosure in the prosecutor’s closing address simply highlighted that the complainant was left to fend for herself. On the contrary, in the context of the prosecutor’s questions about the police allegations regarding Ms Meer’s involvement in the offending, the jury would have understood the reference to non-disclosure by Ms Meer as an allegation of deliberate and knowing concealment by her of the commission of the offences the subject of charges 7, 8 and 9 by the applicant. The fact that the prosecutor subsequently stated in his closing address that Ms Meer’s denial of knowledge of the applicant’s offending was explicable on the basis that she was intoxicated does not detract from our conclusion. That is because that statement was inconsistent with the complainant’s evidence that Ms Meer was aware that the applicant sexually penetrated her, at least during the final incident: the complainant stated that Ms Meer told the applicant that she was ‘fine’ with what he was doing to the complainant.
We accept that defence counsel did not object to the prosecutor’s questions regarding the police allegations of Ms Meer’s involvement in the offending the subject of charges 7, 8 and 9, or to the prosecutor’s reference in his closing address to non‑disclosure of the offending by her. However, there was no forensic advantage for the applicant in defence counsel’s failure to object.
If the jury had assessed Ms Meer as an honest, credible and reliable witness, such an assessment would have assisted the applicant’s case that the prosecution had failed to prove beyond reasonable doubt that he had committed the offending the subject of charges 7, 8 and 9. By unfairly undermining the credibility of Ms Meer, the prosecutor reduced the prospect that the jury would accept Ms Meer’s exculpatory evidence and thus caused a substantial miscarriage of justice in relation to charges 7, 8 and 9.
Ground 4: Absence of directions concerning prior inconsistent statements
Ground 4 was in the following terms:
A substantial miscarriage of justice was occasioned by the absence of any direction to the jury as to how to use prior inconsistent statements in circumstances where there were substantial and compelling reasons for such a direction to be given.
The evidence that is the subject of ground 4 is the complainant’s evidence that she left home because the applicant encouraged her to do so rather than because her parents wanted to force her into an arranged marriage, and that the story of the arranged marriage was made up by the applicant.[22] This evidence was said to be inconsistent with statements made by the complainant prior to trial to the following witnesses:
(a)Ms Tonge. She gave evidence that the complainant told her in 2014 that she had left home because her parents wanted to send her to Pakistan for an arranged marriage.
(b)BH. She gave evidence that the complainant told her that she thought that the applicant had helped her to leave her family because her family had discussed an arranged marriage.
(c)Ms Meer. She gave evidence that, before the complainant moved into her house, she mentioned a few times that her parents wanted to get her married and that she self-harmed and tried to commit suicide.
(d)Sergeant Mazza. She gave evidence that she believed the complainant told her that she had overheard a conversation about an arranged marriage in Pakistan.
(e)The applicant. He gave evidence that the complainant had told him that her parents had made several offers of arranged marriages for her and that she wanted to leave home as a result of the pressure about an arranged marriage.
[22]See [15], [17] above.
The applicant submitted that the complainant acknowledged having previously represented that the reason she left home was to avoid a forced marriage and that those representations were inconsistent with her evidence as to her actual reason for leaving. He contended that her motivation to move in with him was a disputed issue in the trial with significant ramifications for the jury’s findings as to the credit and reliability of both of them, as well as his character. He argued that it was for the jury to evaluate the complainant’s explanation for her prior inconsistent statements and decide how it impacted her credibility and reliability. For this purpose, so it was said, the jury needed to be guided by directions of law, including that it could treat the complainant’s prior inconsistent statements as evidence in the case. He submitted that, by contrast, the jury was given standard directions on the use of complaint evidence, which he said could only bolster the complainant’s credibility. According to the applicant, in all the circumstances, substantial and compelling reasons existed for the judge to give a prior inconsistent statement direction and his failure to do so caused the trial to miscarry.
In our opinion, ground 4 is not made out.
The inconsistency between the complainant’s evidence and statements she made to other witnesses previously about why she left home would have been obvious to the jury, as would her explanation for the inconsistency. She readily conceded that she deliberately lied to Ms Tonge and possibly the police officer who applied for the intervention orders when she said that the reason she left home was because of concerns that her parents intended to force her to enter into an arranged marriage. She explained that she was told to lie by the applicant because the false story about arranged marriages provided a plausible reason for her living at his home which would be acceptable to the police and DHHS. In these circumstances, the inconsistency between the complainant’s lies and her evidence at trial could not materially undermine her credibility.
The limited consequence of the inconsistency was reinforced by the fact that defence counsel in his closing address did not seek to argue that the complainant’s credibility was diminished by the prior inconsistent statements. Nor did he seek a direction from the judge on how the jury could use evidence of prior inconsistent statements by the complainant.
Having regard to the above considerations, there were no substantial and compelling reasons for the judge to give such a direction and his failure to do so did not result in a substantial miscarriage of justice.
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