Tully v The Queen
[2016] ACTCA 4
•17 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Tully v The Queen |
Citation: | [2016] ACTCA 4 |
Hearing Date(s): | 6 August 2015 |
DecisionDate: | 17 February 2016 |
Before: | Murrell CJ, Penfold and North JJ |
Decision: | On Counts 1, 2, 3 and 5, appeal allowed, verdicts and consequent orders set aside and verdicts of not guilty entered. Otherwise, appeal dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Tendency evidence – concoction – separate trials – unsafe and unsatisfactory – alleged incompetence of counsel WORDS AND PHRASES – “Probative value” – Evidence Act 2011 (ACT) Dictionary |
Legislation Cited: | Crimes (Amendment) Act 1995 (ACT) Crimes Act 1900 (ACT) ss 55, 70, 92E, 92S Human Rights Act 2004 (ACT) s 25 |
Cases Cited: | AE v The Queen [2008] NSWCCA 52 Ahmu v The Queen [2014] NSWCCA 312 R v Zhang (2005) 227 ALR 311 |
Texts Cited: | Heydon, Dyson, ‘Is the Weight of Evidence Material to its Admissibility?’ (2014) 26 Current Issues in Criminal Justice 219 Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 11th ed, 2012) |
Parties: | Cameron Flynn Tully (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Self-represented (Appellant) ACT Department of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 55 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 3 October 2014 Case Title: R v Tully (No 3) Citation: [2014] ACTSC 275 |
MURRELL CJ AND NORTH J:
The appeal
The appellant was tried by a jury on 23 counts of historical child sexual abuse. He was represented by experienced trial counsel. On 6 June 2014, the jury found the appellant guilty of 18 counts. He was convicted and sentenced to a total period of 14 years and six months’ imprisonment, with a non-parole period of nine years’ imprisonment. He appealed against the convictions.
In the notice of appeal the appellant asserted that:
(a)The trial judge erred in permitting the evidence on each charge to be lead as tendency evidence on the other charges. The appellant said that his Honour should have found that the probative value of the tendency evidence did not substantially outweigh the unfair prejudice associated with the evidence because:
(i)the volume and complexity of the tendency evidence was likely to prejudice a jury by “overwhelming” it; and
(ii)the probative value of the tendency evidence was diminished by the fact that it may have been concocted.
(b)The trial judge should have ordered separate trials because the complexity of the trial involving 23 charges and eight complainants meant that the jury was “overwhelmed”, resulting in a miscarriage of justice.
(c)The verdicts on Counts 1, 2, 3, 5 and 7 in the indictment were unsafe and unsatisfactory because there was insufficient evidence to prove the element that the complainant was less than 10 years old at the relevant time.
The appellant acknowledged that grounds (a) and (b) were interdependent.
The appellant’s written submissions advanced the following additional arguments:
(d)The trial judge should have rejected the tender of Australian Taxation Office (ATO) records because the appellant had had no opportunity to consider and respond to the material before it was tendered.
(e)Evidence should have been called about the improper conduct of ACT Policing.
(f)The trial judge erred in refusing the application for a view of the rural property where most of the alleged incidents occurred.
At the hearing of the appeal, the appellant was self-represented. During oral argument, he introduced further grounds of appeal:
(g)Particular evidence relating to some counts demonstrated that the associated verdicts were unsafe and unsatisfactory.
(h)If evidence in support of the charged acts was to be admitted as tendency evidence, then evidence of the uncharged acts should have been admitted.
Although the notice of appeal did not refer to all eight grounds of appeal, we are prepared to consider all the grounds. At the hearing of the appeal, all grounds were addressed by both parties.
The appellant did not appeal against the sentences.
Summary of allegations and verdicts
Between 1991 and 2002, the appellant’s mother ran church meetings at the family’s rural home. The appellant and his siblings often supervised children while their parents attended meetings. The appellant was born in April 1974, so he was 17 years old at the beginning of the period covered by the indictment (25 May 1991) and 28 years old at the end of that period.
Complainant A
Count 1: 1.4.92 – 1.4.93 Sexual intercourse with child under 10 – Guilty
When A was seven or eight years old, she was sleeping with TL under a doona on a fold-out couch in the library of the main house. The appellant moved the doona, removed A’s underpants and licked her genital area.
Count 2: 1.4.92 – 31.12.94 Act of indecency on child under 10 – Guilty
A was sitting with TL on a fold-out couch in the main house. The appellant sat between the girls and put a blanket over his lap and that of A. He placed A’s hand on his erect penis and moved it up and down.
Count 3: 1.4.92 – 1.1.95 Sexual intercourse with child under 10 – Guilty
Count 4: 2.1.95 – 31.12.96 Sexual intercourse with child 10–16 – Alternative to 3
Count 5: 1.4.92 – 1.1.95 Sexual intercourse with child under 10 – Guilty
Count 6: 2.1.95 – 31.12.96 Sexual intercourse with child 10–16 – Alternative to 5
The appellant took A to a bathroom in the main house and closed the door. He laid her on the floor, removed her underpants and licked her genital area. He pulled down his pants, lay on A and partially inserted his penis into her vagina, causing pain.
Complainant B
Count 7: 1.1.98 – 27.6.00 Act of indecency on child under 10 – Guilty
When B was between seven and nine years old, during the daytime on a weekday, she accompanied her parents to a church group meeting at the rural property. She played with other children near a shed. The appellant gave B a piggyback ride. While doing so, he reached back, slipped his thumb inside B’s underwear and placed it on her genital area for a short time.
Count 8: 1.12.99 – 27.6.00 Act of indecency on child under 10 – Not Guilty
Complainant C
Count 9: 1.5.98 – 30.6.98 Act of indecency on child under 10 – Guilty
Count 10: 1.5.98 – 30.6.98 Act of indecency on child under 10 – Directed acquittal
Count 11: 1.5.98 – 30.6.98 Act of indecency on child under 10 – Guilty
Count 12: 1.5.98 – 30.6.98 Act of indecency on child under 10 – Guilty
C, who was then nine years old, accompanied her parents to a church group meeting at the rural property. While C was watching television with other children in the library of the main house, the appellant placed her on his lap and covered her with a blanket. He put his hand between her legs and fondled her genital area through her underpants for 10 or 15 minutes.
The appellant then told C to follow him to his bedroom. He closed the door. He exposed his penis and made her touch it. The appellant removed C’s underpants and told her to get onto the bed. He lay on top of C, pressed his penis against her and moved up and down against her for five or 10 minutes.
Count 13: 1.5.98 – 30.6.98 Sexual intercourse with child under 10 – Guilty
On the 1998 Queen’s Birthday weekend, C was at the rural property. There was a bonfire near a shearing shed. The appellant gave C a piggyback ride to the shearing shed, where he put her on the ground, pulled down her underpants and licked her genital area.
Complainant D
Count 14: 25.12.97 – 24.12.99 Act of indecency on child under 16 – Guilty
On an occasion when D was 10 or 11 years old, she was playing with children in the library area of the main house at the rural property. The appellant invited her to see a kitten that was in a spare room. He shut the door, put his hand under her dress and touched her genital area over the top of her underpants.
Complainant E
Count 15: 14.10.99 – 13.10.01 Act of indecency on child under 10 – Guilty
Count 16: 14.10.99 – 13.10.01 Act of indecency on child under 10 – Guilty
When E was about six years old, the appellant pulled down her dress and touched her nipples. He then exposed his penis and made E touch it.
Count 17: 14.10.99 – 13.10.00 Sexual intercourse with child under 10 – Guilty
E was on her back on the shearing shed floor. The appellant pulled her dress up, lay on top of her and inserted his penis into her vagina, causing pain and bleeding.
Complainant F
Count 18: 10.10.00 – 9.10.02 Act of indecency with person under 16 – Guilty
When F was 12 or 13 years old, the appellant attended a movie night at her house. He directed F to follow him to the bathroom, where he lifted her shirt and fondled and kissed her breasts.
Complainant G
Count 19: 25.5.91 – 24.5.92 Sexual intercourse with child under 10 – Guilty
When G was three or four years old, the appellant attended G’s home during the daytime. He babysat G and other children. While the children were playing hide and seek, the appellant laid G on the floor, pulled down her shorts and tickled her before inserting two fingers into her vagina.
Count 20: 25.5.91 – 24.5.92 Sexual intercourse with child under 10 – Unable to agree
Complainant H
Count 21: 31.8.91 – 1.3.92 Act of indecency on child under 10 – Guilty
Count 22: 31.8.91 – 1.3.92 Act of indecency on child under 10 – Guilty
Count 23: 31.8.91 – 1.3.92 Act of indecency on child under 10 – Guilty
On an occasion when H was nine years old, she was at the rural property watching a movie while her mother attended a meeting. The appellant led her from the house to a nearby shed, where he laid her on a mattress and required her to touch his penis over his jeans. He then placed his hand inside H’s underpants and rubbed her genital area for about two minutes. He removed H’s underpants, positioned her on all fours and positioned himself behind her. He rubbed his penis against her genital area for about a minute.
Appeal grounds (a), (b) and (h)
The trial judge’s consideration of the tendency application
The prosecution sought leave to lead evidence of 21 charged acts (the 21 acts/ 13 incidents charged in the indictment, involving eight complainants) and 18 uncharged acts (eight incidents) as evidence of three alleged tendencies.
The trial judge refused leave to adduce evidence of the uncharged acts, but allowed each charged act to be admitted as tendency evidence in relation to each other charged act: R v Tully (No 1) [2013] ACTSC 127 at [55] and [56]. The trial judge limited use of the tendency evidence to two alleged tendencies:
(a)A tendency to think in a particular way – to be attracted to young girls.
(b)A tendency to act in a particular way – to act on a sexual attraction to young girls.
The trial judge found that the evidence lacked sufficient cogency to support the third alleged tendency, being a tendency of the appellant to take advantage of his parents’ friendships with other families for the purpose of gaining access to young girls.
In considering whether to grant leave to lead limited tendency evidence, the trial judge adopted the following approach.
First, his Honour found that the tendency material was relevant to a fact in issue. We agree that, subject to any argument about the temporal relationship, it is clear that each tendency act was relevant to whether the appellant committed other charged acts. The appellant does not contest the relevance of the tendency material.
Second, the trial judge considered s 97(1)(b) of the Evidence Act 2011 (ACT) (Evidence Act) and found that the tendency material had “significant probative value”. In reaching that finding, his Honour noted the definition of “probative value” in the Dictionary to the Evidence Act; the “probative value” of evidence “means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
When assessing the probative value of evidence, his Honour considered whether the evidence might have been concocted or contaminated. His Honour noted that it was relevant to consider the relationship between tendency witnesses, any opportunity that the witnesses may have had to jointly concoct their evidence, and whether the tendency witnesses had a motive to concoct evidence. His Honour referred to the decisions in BP v The Queen [2010] NSWCCA 303 at [107]–[111] and AE v The Queen [2008] NSWCCA 52 at [44]. His Honour observed that there was a relationship between some complainants (and a related opportunity for concoction), but found that there was no motive for them to collude in making false allegations against the appellant. His Honour found that a child access dispute between the appellant and a former partner provided no motive for the complainants to lie.
Third, the trial judge addressed the requirement under s 101(2) of the Evidence Act. Section 101(2) provides:
Tendency evidence about a defendant ... that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
When considering the question of prejudice, the trial judge noted that, if the prosecution was permitted to lead evidence of all 31 acts, the trial of the accused would be “a complex affair”: at [51]. His Honour noted that three of the tendency witnesses would give evidence about uncharged acts only. In rejecting the evidence of uncharged acts, the trial judge reasoned that the admission of the evidence of uncharged acts could cause three types of prejudice:
(a)There was a danger that, by reference to the large number of alleged incidents, the jury would reason that the appellant must be guilty of each charged act.
(b)It would be difficult for the appellant to deal with the uncharged acts because of the lack of specificity about the dates of the relevant incidents.
(c)The evidence of uncharged incidents would deflect the jury’s focus away from the charged incidents.
Section 101(2): Did the trial judge miscalculate the prejudicial effect of allowing all charges to be heard together?
The appellant argued that, in rejecting the evidence of uncharged acts, the trial judge did not go far enough to address the prejudice associated with the sheer volume of allegations. There remained a significant danger that the jury would be “overwhelmed” by the cross-admission of evidence concerning one charge as tendency evidence in relation to the other charges. The appellant submitted that the effect would have been to bolster the allegations of complainants whose evidence was otherwise unreliable.
The appellant’s related submission was that the evidence would have been manageable for a jury if the trial judge had directed that there be several trials, perhaps three or four trials.
The probative value of evidence goes to proof of an issue, whereas the prejudicial effect of evidence goes to the fairness of the trial: Pfennig v The Queen (1995) 182 CLR 461 (Pfennig) per McHugh J at 528. Evidence is prejudicial if there is a risk that the jury may misuse it, i.e. use it other than by way of considering its rational impact on the probability of a fact in issue. For example, evidence is prejudicial if it is inflammatory or it encourages unconscious prejudice: R v Zhang (2005) 227 ALR 311.
Tendency evidence is inherently prejudicial. In Pfennig, Mason CJ, Deane and Dawson JJ accepted that it is natural for a jury to think that, if an accused tends to act in a particular criminal way, then he probably acted in that way on the occasion/s charged. In Stephen Odgers’ Uniform Evidence Law (11th edition), at page 535, the primary dangers associated with tendency evidence are expressed to be the dangers that the jury may convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence; may too readily accept other prosecution evidence adduced to prove guilt; and may be distracted from the central issues in the trial.
In many cases involving prejudicial evidence, the prejudice can be addressed by limiting the extent of the evidence or by appropriate directions: HML v The Queen (2008) 235 CLR 334 at [28]. Where tendency evidence has been admitted, it is usual for the trial judge to caution the jury about the improper use of tendency evidence. Of course, there will be other cases where the nature, significance or volume of the prejudicial evidence is such that the prejudice is incapable of cure, even by careful direction: Patel v The Queen (2012) 247 CLR 531.
Section 101(2) of the Evidence Act is a response to these concerns. It requires the consideration of both:
(a)the degree to which tendency evidence may resolve a contentious issue in the trial (in other words, the extent to which the evidence could, if accepted, be useful in proving a contentious fact); and
(b)the risk that the evidence may render the trial unfair.
It is common practice for a judge to give a tendency direction at the time that tendency evidence is adduced. In this case, the trial judge did not do so. However, there were good reasons for failing to give a tendency direction at that time. As the evidence of each complainant was direct evidence of charge/s and its admission as tendency evidence was of secondary significance, it may have been confusing to give a tendency direction during the course of the evidence.
The prejudice associated with use of the evidence as tendency evidence was addressed by the trial judge when he summed up at the conclusion of the trial. After repeatedly directing the jury that any tendency must be proved beyond reasonable doubt and directing the jury about the way in which tendency evidence may be used, the trial judge said:
You must not, however, reason, if you are satisfied beyond reasonable doubt that he committed one or more of the offences, that because he has committed one crime he is likely to have committed others, or that if he has committed one crime he is a person of bad character and therefore likely to have committed other crimes.
At the trial, there was no request for a tendency direction to be given during the course of the evidence, no complaint about the tendency direction that was given in the course of the summing up, and no application for redirection. On the appeal, the appellant made no complaint about the substance or timing of the tendency direction.
When considering whether evidence of the uncharged acts should be admitted as tendency evidence, the trial judge identified the relevant prejudices (see [30] above). Although there were 21 charged acts (23 counts, including the alternative counts), the evidence in relation to each charge was brief, and there were only 13 incidents involving a total of eight complainants. The evidence in the trial occupied 15 days. The trial was neither unusually long nor particularly complex. In relation to most of the counts it was simply a question of whether the jury accepted the critical evidence of the complainant beyond reasonable doubt. A properly instructed and attentive jury (especially one which was given access to a transcript of the evidence for the purpose of their deliberations) was well capable of absorbing all the evidence. The trial judge gave a careful and appropriate direction about tendency evidence, and there was no complaint about the direction at the trial or on the appeal.
The nature and volume of tendency material was not such as would “overwhelm” an attentive and carefully instructed jury. There is no material before us to suggest that the jury was “overwhelmed”. The fact that the jury reached different verdicts on different counts demonstrates that the jury considered each count individually.
The trial judge did not miscalculate the prejudicial effect of allowing the evidence of each charged act to be admitted as tendency evidence on the trial of each other charge, nor did his Honour err in making the related decision that the charges should be tried together.
The appellant advanced an alternative submission in his written submissions. He contended that the jury would have benefited from an evidence matrix or timeline.
This submission is informed by hindsight. In closing argument, the appellant’s counsel could have provided the jury with an evidence matrix or timeline, or could have asked the trial judge to do so. Neither course was followed.
Section 101(2): Did the trial judge err in assessing the probative value of the tendency evidence by dismissing the possibility of concoction?
If established by reliable evidence, each charged act provided strong evidence of the appellant’s alleged tendencies to be sexually attracted to young girls and to act on that attraction. The appellant did not dispute that, if credibly established, each tendency constituted circumstantial evidence of significant probative value. Each tendency was a circumstance that may well have bolstered the complainants’ allegations in a legitimate way.
The trial judge did not err in finding that there was no motive and had been little opportunity for the complainants to collude. Nor did his Honour err in concluding that the significant probative value of the tendency evidence was not undermined by the possibility of concoction. Even if possible concoction is a factor to be considered when assessing the probative value of evidence, the evidence to which we were taken does not support the appellant’s contentions about possible concoction.
Legal issues
In Hoch v The Queen (1988) 165 CLR 292 (Hoch), the High Court held that, at common law, if relationship, opportunity and motive gave rise to the reasonable possibility of concoction, then similar fact evidence was inadmissible. A line of NSW cases followed Hoch, or adopted a similar approach. Hoch was applied in BP v The Queen [2010] NSWCCA 303 (BP). In AE v The Queen [2008] NSWCCA 52 at [44] the Court held that the possibility of joint concoction could be considered when assessing the probative value of tendency evidence under the Evidence Act, although the threshold test was not the Hoch common law threshold that demanded that there be no reasonable possibility of concoction. There is a helpful discussion of the Hoch test in Jones v The Queen [2014] NSWCCA 280 (Jones).
The test under s 101(2) of the Evidence Act (which relates to ss 97 and 98 of the Evidence Act and concerns whether the probative value of evidence substantially outweighs any prejudicial effect that it may have on the accused) is similar to the test under s 137 of the Evidence Act (whether the probative value of evidence is outweighed by the danger of unfair prejudice to the accused). Each involves a consideration of probative value and prejudice.
Frequently, the approach of NSW courts has been that, when a trial judge is considering the probative value of evidence under provisions such as s 97 and s 137 of the Evidence Act for the purpose of determining whether evidence should be admitted before a jury, the judge should disregard issues of credibility, reliability and weight because they are matters for the jury: R v Shamouil (2006) 66 NSWLR 226 (Shamouil). In R v XY [2013] NSWCCA 121 (XY) at [66]–[67], [86], [175], the majority followed Shamouil. In XY at [66], Basten JA (with whom Hoeben CJ at CL and Simpson J agreed) observed that Shamouil held that the judge was required to assess the evidence on the basis of its capacity to advance the prosecution case and should not make his or her own findings about the credibility, reliability or weight of the evidence. In JG v The Queen [2014] NSWCCA 138 at [105], Simpson J said that the prohibition on a judge assessing the credibility of evidence applies equally whether the evidence is tendered under s 97 or is sought to be excluded under s 137.
However, there is a line of NSW authority that holds that, for s 98 and s 101, when assessing the probative value of evidence that gives rise to competing inferences, a judge should consider the existence of the competing inferences: DSJ v The Queen (2012) 84 NSWLR 758 (DSJ) at [130] per Whealy JA (with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed), discussed in Jones at [86]–[90] per Bellew J (with whom Gleeson JA and Schmidt J agreed).
The DSJ qualification (that competing inferences may be considered when deciding probative value, at least for the purposes of s 98) to the rule that a judge must not assess the evidence for him/herself has proved to be problematic. In R v Burton [2013] NSWCCA 335 (Burton), the Court discussed XY and held that, for the purposes of s 137 (but not other provisions), a judge must draw the inference that is most favourable to the Crown: Burton at [194]–[198].
If a DSJ qualification is to apply at all, it is difficult to see a rational basis for distinguishing between ss 97, 98 and 137. In the 2014 Paul Byrne lecture (subsequently published in Current Issues in Criminal Justice) the Honourable Dyson Heydon argued that, rather than trying to distinguish the two streams of authority (DSJ and Burton) it would be better to abandon the DSJ qualification.
In NSW, the law remains uncertain: see BC v The Queen [2015] NSWCCA 327 at [116]–[120] and Hughes v The Queen [2015] NSWCCA 330.
Unlike the NSW Court of Criminal Appeal, the Victorian Court of Appeal has held that, in deciding the admissibility of tendency evidence, a judge may consider whether there is a “real chance” of concoction, looking at what the objective record says about matters such as relationship, opportunity and motive, and that such an approach does not traverse the jury’s role of determining the reliability or credibility of individual witnesses: BSJ v The Queen [2012] VSCA 93 at [21], Murdoch v The Queen [2013] VSCA 277 at [7]. In Dupas v The Queen [2012] VSCA 328, the Victorian Court of Appeal concluded that the decision in Shamouil was manifestly wrong and that, when determining the probative value of evidence under s 137, the unreliability of the evidence is to be considered.
Application of law to this case
In this case, when assessing the probative value of proposed tendency evidence, the trial judge approached the issue in the manner that was most favourable to the appellant. His Honour accepted that the issues of concoction and contamination could be considered in accordance with BP.
The trial judge accepted that there had been an opportunity for some of the complainants to have colluded about their allegations. However, he could not discern any motive for them to have colluded. He dismissed the possible motive raised by the appellant when he was interviewed by police: that the allegation may be related to threats that had been made by his former partner that, if the appellant pressed for access to his child, she would make false allegations against him. His Honour noted that there had been little, if any, opportunity for the complainants to collude with the appellant’s former partner as she had lived interstate for many years. Further, any motive on the part of the appellant’s former partner could not be ascribed to the complainants. Having considered the question of concoction, the trial judge concluded that the tendency evidence had significant probative value.
The appellant noted that the witness SD gave evidence that, in about 2010/2011, B had told SD that she was urging her sister and others to report allegations against the appellant.
The appellant submitted that both SD and the witness FE had given evidence that they had been approached with a request that they make a complaint against the appellant. However, the trial transcript does not reflect this.
Evidence that a complainant has urged others to make allegations is not evidence that she has urged others to make false allegations. Such urging may occur where a complainant believes that an accused has committed offences against other people and that the full extent of the abuse should be exposed.
The appellant referred to exhibits to the affidavit of Margaret Smith, particularly Exhibits MS2 and MS4. These exhibits were records of interview with police in which complainants B and C had alleged that they had been sexually abused by both the appellant and a member of the appellant’s family, and a record of interview with a parent of complainants G and H referring to a complaint that identified an abuser as either the appellant or his brother.
Evidence that a complainant has alleged that she has been abused both by an accused and by a relative of the accused is not evidence that the complainant is prone to make false allegations. Unfortunately, complainants are sometimes subjected to abuse by more than one member of a family.
For the purposes of this appeal, it is not necessary for the Court to decide whether, when considering the probative value of evidence tendered as tendency evidence, a judge should consider whether the evidence may have been concocted or contaminated. Nor is it necessary for the Court to decide whether there is a “DSJ qualification” to any general rule that precludes a judge considering concoction or contamination, i.e. whether the evidence carries less weight because it allows for competing inferences. In this case, the trial judge did consider the possibility of concoction; whether or not he was required to do so, this addresses the appellant’s complaint in relation to concoction In determining the issue, his Honour addressed appropriate considerations, and there was no error in the manner in which he reasoned to the conclusion that there was no real possibility of concoction.
Further argument on tendency evidence
The appellant submitted that, if the charged acts were to be admitted as tendency evidence then, in the interests of fairness, the evidence of the uncharged acts should have been admitted. He said that the evidence supporting the uncharged acts included assertions that were so improbable that admission of the evidence of uncharged acts would have been forensically advantageous to him.
On legal advice, the appellant objected to the evidence of uncharged acts being admitted as tendency evidence. After the trial judge decided to admit the charged acts as tendency evidence but rejected the evidence of uncharged acts, the appellant could have changed his position on the evidence of uncharged acts, but he did not do so. There may have been a good forensic reason for the appellant to change his position, but there were also good forensic reasons for not doing so.
The appellant is bound by the informed forensic decisions that he made between July 2013 and June 2014.
Conclusions
Grounds (a), (b) and (h) are not made out.
Appeal ground (c) – Counts 1,2,3,5 and 7 – Could the evidence establish that A and B were under 10?
When an appellant argues that a verdict is unsafe or unsatisfactory, the appellate court must ask whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at [493] (M). The appellate court must have full regard to the fact that the jury is the body entrusted with the primary responsibility for determining guilt: M.
Complainant A was the subject of Counts 1, 2, 3 and 5. Complainant B was the subject of Count 7.
Complainant A – Counts 1, 2, 3 and 5
In relation to each of Counts 1, 2, 3, 5 and 7 it was necessary for the prosecution to prove beyond reasonable doubt that the relevant act of indecency or sexual intercourse occurred when the complainant was under 10 years of age.
A (who was born in January 1985) said that the three incidents of which she gave evidence occurred in the main house. The appellant’s family moved to the main house in April 1992. A said that the incidents occurred within a couple of years of each other. She could not recall the order in which the incidents occurred. A said that she “[didn’t] think” that BU had been born when the incidents occurred, but she also said that she would “be guessing” about whether the incidents occurred prior to the birth of BU. BU was born in April 1993, when A was 8 years old. A was sure that the incidents occurred when she was at primary school, but she could not recall whether they occurred before or after she was in Year 4. The prosecution conceded that A would have remained at primary school beyond 10 years of age.
J gave evidence that, when she and A were in Year 7 or Year 8 of high school, A disclosed to her that she had been “sexually abused as a child... by an older relative”. Apart from supporting A’s evidence that the incidents occurred when A was at primary school, J’s evidence did not assist in relation to the timing of any abuse.
On the appeal, the prosecution submitted that, as the jury had had the advantage of observing A giving her evidence, the jury was entitled to decide that A was in fact confident that the incidents had occurred before the birth of BU, despite her words expressing uncertainty. Further, as there was a “period of grace” between when BU was born in April 1993 and when A attained 10 years of age in January 1995, the jury was entitled to infer that, even if the misconduct occurred after BU’s birth, it must have occurred within the period of grace.
We do not accept the prosecution submissions.
In relation to whether the evidence was sufficient to prove beyond reasonable doubt the age of a complainant at the time of an alleged incident, the jury had no relevant an advantage over this Court. The verdicts establish that the jury accepted A as a witness of truth; the jury was satisfied beyond reasonable doubt that the appellant did misconduct himself towards A in the manner alleged. We proceed on the basis that A was a truthful witness in relation to both the occurrence of the incidents and their timing.
The misconduct must have occurred between April 1992 (because it occurred in the main house) and when A completed primary school in 1996 (A was certain that it occurred when she was in primary school and J supported that evidence). However, it is unclear whether the incidents occurred before or after A’s 10th birthday in January 1995.
Consequently, there was insufficient evidence to establish beyond reasonable doubt either that the appellant committed the offence of having sexual intercourse with a child under 10 (contrary to ss 92E(1) and 55(1) of the Crimes Act 1900 (ACT) (Crimes Act), as found by the jury), or that he committed the offence of having sexual intercourse with a child aged between 10 and 16 years (contrary to s 92E(2) of the Crimes Act, as alleged in alternative Counts 4 and 6).
The Crimes (Amendment) Act 1995 amended s 92E (2) of the Crimes Act 1900 inter alia by omitting the words “of or above the age of 10 years but”. This removed the previous requirement that a victim of an “under 16” offence had to be at least 10 years old. At the same time, s 92S (5) was added. Relevantly, it provided:
Where, on the trial of a person for an offence against subsection 92E (1), the jury—
(a)is not satisfied that the person in relation to whom the offence is alleged to have been committed was under 10 years of age when the offence is alleged to have been committed; but
(b) is satisfied that the accused is guilty of an offence against subsection 92E (2) ...;
the jury may find the accused not guilty of the offence charged but guilty of an offence against subsection 92E (2) ....
Section 92S (5) permitted a jury to return a verdict of guilty on the alternative statutory “under 16” offence if the jury was satisfied that an offence occurred but was not satisfied that the victim was under 10 at the time of the offence. The amendment avoided a need for the prosecution to charge the two offences (the “under 10” offence and the “under 16” offence) in the alternative. In effect, s 92S (5) was part of a package which had the effect of overcoming the type of situation that has arisen in this case. The equivalent provision is now contained in s 70(5) of the Crimes Act.
However, at the time of the misconduct the subject of this appeal, the legislation provided for no “under 16” statutory alternative to an “under 10” charge. The prosecution conceded that s 92S (5) has no application to the present case.
The evidence was insufficient to satisfy the jury beyond reasonable doubt that offences against A occurred before her 10th birthday in January 1995. We cannot dismiss the reasonable possibility that the misconduct occurred after A’s 10th birthday, but while she was still at primary school. There was insufficient evidence to found the verdicts of guilty on Counts 1, 2, 3 and 5.
Complainant B – Count 7
B was born in June 1990. She gave clear evidence that she stopped going to the rural property “literally days before my 10th birthday”. The evidence of B’s mother corroborated the fact that any incident must have occurred prior to B’s 10th birthday. There was ample evidence to prove B’s age.
Conclusions
In relation to Counts 1, 2, 3 and 5, this ground is made out. In relation to Count 7, it is not made out.
Other grounds for claiming that verdicts were unsafe and unsatisfactory
Ground (d) – admission of tax material
In relation to Count 7 (concerning the complainant B), at the trial the appellant put in issue the question of opportunity to commit the crime. Implicit in his evidence was that the crime was unlikely to have occurred because he was working full-time, and it was not his role to supervise and oversee the children (including B) who visited the rural property.
In response to this assertion, the prosecution led evidence of the appellant’s tax returns during the relevant period (1998 – 2000). The returns showed that the appellant had a relatively low income, suggesting that he was not working full-time.
On the appeal, the appellant complained that the tax material should not have been led without warning. He asserted that he had no opportunity to garner evidence in response that would have shown that he was engaged in full-time employment at the relevant time.
This complaint is without merit. First, at the trial the appellant’s counsel did not object to the admission of the ATO evidence; in fact he sought the tender of the tax records which had been the subject of oral evidence by an ATO officer. Second, B herself agreed that the appellant was rarely present at the rural property during the relevant period. Third, the tax evidence was not significant evidence; it was merely consistent with other evidence.
This ground is not made out.
Ground (e) – police conduct
The appellant asserted that the original police informant was a liar. He submitted that she had lied on a bail application when she said that no complainant had made complaints about persons other than the appellant because, to her knowledge, B and C had made allegations of sexual misconduct against the appellant’s brother.
The police informant had taken a statement from TL. TL resiled from that statement, asserting that it was not an accurate reflection of what she had told police. The appellant asserted that, had the jury been aware of the informant’s propensity to lie, they probably would have accepted TL’s assertion that the police had concocted a false statement and would have attributed more weight to her evidence, which supported the appellant’s defence in relation to Counts 1–6.
We were not taken to the evidence that established all the links in the appellant’s chain of reasoning. In any event, it is not necessary to deal with this argument because we find that the verdicts taken on Counts 1–6 (i.e. the verdicts on Counts 1, 2, 3 and 5) were unsafe and unsatisfactory for other reasons.
Ground (f) – view
Both at the outset and during the trial, the appellant sought a view of the rural property pursuant to s 53 of the Evidence Act. The trial judge refused the applications.
Section 53(1) provides that a judge has a discretion to order that a demonstration, experiment or inspection be held. Section 53(3) sets out matters that a judge must take into account when deciding whether to make such an order. Section 54 provides that the jury may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
On the appeal, the appellant submitted that a view was critical to his defence, particularly in relation to Count 13. The Count 13 incident allegedly occurred on the 1998 Queen’s Birthday weekend when people were gathered at the rural property for a bonfire. C said that the incident occurred when the appellant took her into the shearing shed. She said that the shearing shed light was illuminated during the incident. The appellant submitted that a view would have established the proximity of the bonfire (around which people were gathered) to the shearing shed. The appellant said that, had the shed lights been illuminated at the time of the incident, the power generator serving the shearing shed would have created a loud noise that would have attracted the attention of the people gathered around the nearby bonfire. He asserted that, as the shed was still serviced by the same power generator, a view would have enabled the jury to appreciate the noise that would have been created. The jury may have concluded that the incident could not have occurred in the manner described by C.
The first application for a view was the subject of an ex tempore decision given on 19 May 2014 (the day before the trial evidence commenced). In his reasons, the trial judge:
(a)noted that he was required to consider the matters set out in s 53(3) and could also consider other relevant matters;
(b)observed that, having regard to the passage of time, a view could not indicate the same circumstances as existed at the time of the alleged offences;
(c)observed that the Crown proposed to tender floor plans and photographs, including aerial photographs, and witnesses could be asked to prepare diagrams or plans; and
(d)found that, because of the passage of time since the alleged offences, a view of the rural property had the potential to confuse the jury.
The second application was made on 29 May 2014, at the conclusion of the evidence given on that day. The trial judge decided that the need for a view was “even less” than had been the case earlier in the proceedings because the photographs that were in evidence adequately dealt with relevant matters.
The decisions to refuse the application for a view were discretionary. There were good reasons to decline the applications. Any view would have been attended by a significant risk that the jury would be misled by the view. The places observed on the view may well have changed since the 1998 Queen’s Birthday weekend. As far as the generator was concerned, it would have been extremely difficult, if not impossible, to replicate the circumstances applicable on the relevant night in 1998. On the other hand, as the trial judge observed, floor plans, photographs and sketch plans enabled the jury to understand the relationships between the structures on the rural property (including the relationship of the shearing shed to the bonfire).
This ground is not made out.
Ground (g) – the sofa
A and C said that offences occurred when they were on a foldout chair or sofa in the library of the main house. C said that it may have been a two or three seater wicker chair, possibly with elements of a pale wood.
There was evidence from A’s brother that, when he and A stayed at the rural property, he sometimes slept on a foldout couch.
Exhibit 18 was a photograph of a sofa in the library that was said to have been taken in 1996/97. It was not a wicker sofa. The photograph does not show whether the depicted sofa was a foldout sofa.
The appellant submitted that, when shown Exhibit 18, A’s brother “at a very minimum” retreated from his earlier statement that there was a foldout couch in the library. This submission is incorrect. A’s brother was unable to shed light on the couch depicted in Exhibit 18, but he did not retreat from his evidence that there was a foldout couch in the library.
Exhibit 18 does not establish that either or both A and C gave inaccurate evidence about the presence of a foldout sofa in the library of the main house.
In any event, inconsistency or conflict of evidence about a peripheral matter is of only indirect relevance to the question of whether an offence occurred. If inaccurate, the evidence of a witness describing a foldout bed, chair or sofa was a matter to be taken into account in the assessment of her reliability, and it was only relevant to that extent.
There is no basis to find that the jury failed to take Exhibit 18 or the other sofa evidence into account when assessing the reliability of the witnesses A and C.
This ground is not made out.
Ground (g) – other matters
The appellant submitted that, in other important respects, the evidence of one or more complainants was demonstrably unreliable. In part, the appellant relied upon statements that do not appear to have been in evidence in the trial and that related to allegations by complainants (and in one case the mother of two of the complainants) of sexual improprieties committed by people other than the appellant and in circumstances unrelated to the matters raised in the trial. In part, the appellant drew attention to conflicts between the evidence of complainants and other evidence (generally, evidence called in the defence case).
Count 14 provides an example of a conflict between the evidence of a complainant and other evidence called in the trial. In relation to Count 14, D fixed the incident by reference to a period when the appellant’s brother and sister-in-law resided in a house on the rural property. In the defence case, the appellant’s sister-in-law gave evidence that she and her husband were not living in the house at the relevant time.
The evidence of the appellant’s sister-in-law does not demonstrate that D was unreliable. The jury may well have formed the view that the evidence of the appellant’s sister-in-law was false or mistaken.
The appellant sought to attack the reliability of some complainants on the basis that the police possessed statements (generally, statements made by relatives of the appellant) which contradicted the evidence of the complainants. In respects which the appellant now says are important, the contents of the police statements were not put before the jury.
At the time of the trial, the material was available to the appellant. If he wished to rely upon the material, he should have done so at the trial.
The jury was the body entrusted with assessing the reliability of the complainants. Where the evidence of a complainant conflicted with other evidence, it was for the jury to determine whether the complainant’s evidence should be accepted, in whole or in part. The appellant has not established that, in critical respects, the evidence of any complainant was so demonstrably unreliable that it was not open to the jury to accept the evidence.
Alleged incompetence of counsel
The appellant belatedly complained that some of the charges were “scarcely defended” before the jury, inferring that his counsel did not defend the proceedings in a competent manner. No such ground of appeal was raised in the notice of appeal, nor was it clearly articulated in written submission or oral argument.
In Nudd v The Queen (2006) 162 A Crim R 301 (Nudd), the High Court was concerned with a contention that incompetency of trial counsel had caused a miscarriage of justice. The Court dismissed the appeal. At [24] Gummow and Hayne JJ said:
Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial. (citations omitted)
Recently, Nudd was applied in Ahmu v The Queen [2014] NSWCCA 312 at [31] per Basten JA, Adams J, Fullerton J agreeing. At [30]–[31] Basten JA observed:
[30]... Because, as a matter of basic principle, an accused is bound by the course taken by counsel in conducting a trial, cases in which a conviction will be set aside on the basis of apparent incompetence of counsel will be few and far between.
[31]As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [10], “[t]o the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process.” That is to say, whether counsel has acted according to or in contravention of the advocates' ethical rules, and why, is not in issue, unless it explains some objective feature in a way which establishes or discounts a miscarriage...
Beyond the matters referred to above, the appellant did not identify specific respects in which the alleged incompetence of counsel resulted in a miscarriage of justice. The appellant prosecuted the appeal in person with competence and assiduity. He impressed us as someone who would not readily tolerate counsel deviating from instructions or failing to put the defence case thoroughly.
Conclusions on other matters
The other matters upon which the appellant relied do not establish that any verdict was unsafe or unsatisfactory.
Does our conclusion on Counts 1 – 5 affect the convictions on other Counts?
The success of the appellant’s appeal against the guilty verdicts on Counts 1, 2, 3 and 5 does not render the other verdicts unsafe and unsatisfactory.
At the trial, the age of the complainant was a contentious issue only in relation to complainant A. On the appeal, the appellant argued that the jury should also have harboured a reasonable doubt about B’s age. However, for the reasons stated at [80], there was never a live issue about B’s age; either the incident occurred when B was less than 10 years old or it did not occur at all. Similarly, in relation to each other complainant, if the jury accepted beyond reasonable doubt that the charged incident/s occurred, then the jury would have had little doubt that the incident/s occurred when the complainant was the relevant age.
We are satisfied that the jury convicted the appellant on Counts 1, 2, 3 and 5 because the jury misunderstood the trial judge’s directions about the significance of A’s age at the time of the incidents. This mistake does not flow through to the jury’s consideration of the other counts, where age was not a contentious issue.
The potential for the jury becoming confused about the trial judge’s “timing” direction should be seen in the context that there was a “timing” inconsistency in the manner in which the incidents concerning complainant A were prosecuted. A gave evidence of three incidents: that which founded Count 1, that which founded Count 2, and that which founded Counts 3–6. A could not recall the order in which the events had occurred. But while the incident founding Counts 3–6 was the subject of both principal and alternative counts, the other incidents were the subject of only a principal count. What was the jury to make of this inconsistency?
Against this background, the directions of the trial judge were confusing, although ultimately correct.
During the summing up on the afternoon of 3 June 2014, the trial judge directed the jury:
I must tell you that with two exceptions the dates specified in the charges are not material. That means that if you are satisfied beyond reasonable doubt that the events occurred as described by the complainants, or by an individual complainant, but you have some doubt about whether they occurred between the dates specified in the charge, you may still convict the accused.
I will now tell you about the two exceptions to that. You will recall that the fourth count is an alternative to the third count, and that the sixth count is an alternative to the fifth count. The third count alleges that the accused engaged in sexual intercourse with [the complainant] between certain specified dates. As I understand it, that period ends with [the complainant’s] 10th birthday. The alternative charge, count 4, alleges a similar offence but alleges [the complainant] was over the age of 10 but under the age of 16 years.
If you are satisfied beyond a reasonable doubt that the accused engaged in sexual intercourse with [the complainant] when she was under 10 years of age, then you would convict him of the third count. Similarly, if you are satisfied that he engaged in sexual intercourse with [the complainant] when she was over the age of 10 years but under the age of 16 years, you would find him not guilty of the third count but guilty of the alternative fourth count.
If you are satisfied that the accused engaged in sexual intercourse with [the complainant] as she alleged but you could not say beyond reasonable doubt whether it occurred before she turned 10 or after she turned 10, then you would find him not guilty of the third count but guilty of the alternative fourth count.
…
… Similarly, count 5 alleges that between specified dates the accused engaged in sexual intercourse with [the complainant], being a person under the age of 10 years. Count 6 is the alternative count alleging a similar offence between later dates, and, again, they hinge around the birth date of [the complainant] as to when she turned 10 years of age.
…
If you are satisfied that he engaged in sexual intercourse with her as she alleged but you cannot say beyond reasonable doubt whether it occurred before or after she turned 10, then you would find him not guilty of count 5 but guilty of count 6. … (Emphasis added)
The trial judge was correct when he said that “the dates specified in the charges are not material”; in relation to each count, the age of the complainant was material, not the date of the incident. His Honour did refer to the importance of age when the summing up the factual allegations and legal elements relevant to each individual count (including Counts 1–6); at that stage of the summing up, the trial judge directed the jury that they must be satisfied that, at the time, the complainant was the relevant age. With the benefit of hindsight, in so far as the above directions were correct, nevertheless, they may have caused confusion about the importance of dates (not important) versus age (critical).
In part, the above directions were incorrect; the trial judge incorrectly directed the jury that Counts 3–6 were “an exception” to the rule that the date of a particular incident was immaterial. It seems that, when he singled out Counts 3–6, the trial judge meant to say that if, in relation to Counts 3 and 5, if the jury was uncertain about the complainant’s age at the time of the incident, they should return a verdict of guilty on the alternative count. The trial judge wrongly assumed that the current regime applied at the time of these historical counts; that the alternative counts in the indictment were designed to meet the circumstance that the jury could not decide whether an incident occurred before or after the complainant’s 10th birthday. However, at the time, there was no statutory provision enabling an alternative verdict to be given.
When the error was identified by counsel, the trial judge corrected it by redirecting the jury:
You will remember that I talked to you about the alternate charges and those are counts 3 and 4, and also 5 and 6. You will recall that I effectively said to you that if you were not able to be satisfied beyond a reasonable doubt on which side of the complainant's birthday the events occurred, if you are satisfied that they did occur, then you would convict the accused with respect to the alternative count on each case.
The Crown has quite properly drawn my attention to the state of the legislation at the time relevant for these offences, which is in the mid-1990s. At that time, there was something of a lacuna or a gap in the law which has since been cured by changing the legislation, so that as the law stood at that time, in order to convict with respect to, for example, the third count, you would have to be satisfied beyond a reasonable doubt that, all other things being proved, the complainant was under the age of 10 years.
To convict with respect to the alternative count, you had to be satisfied or you have to be satisfied beyond a reasonable doubt amongst, if everything else is proved, that the complainant was over the age of 10 years but under the age of 16 years. That means that, effectively, if you can't say which of those two circumstances was the case, that is were they under 10 or were they between 10 and 16, that means you have to acquit with respect to both charges. That's the same with respect to counts 3 and 4, and counts 5 and 6. (Emphasis added)
The redirection was a correct statement of the law, but it is easy to see that the significance of the direction may have been lost on the jury. The trial judge directed the jury that the timing of the alleged misconduct was to be treated differently as between Counts 3–6 and the other counts, explained the difference, and then changed the explanation. The jury may have been left wondering why alternative counts were available for the incident the subject of Counts 3–6 but unavailable for the incidents the subject of Counts 1 and 2.
Further, the redirection was given to the jury at 4.26 pm on 3 June 2014, at the conclusion of a long day of submissions and summing up. On 3 June 2014, the jury deliberated until about 5.30 pm when they were released overnight. It is very possible that the jury failed to absorb the direction that was given late on 3 June, or failed to recall it when deliberations resumed on the morning of 4 June 2014.
At 12.08 pm on 5 June 2014, the trial judge received the following question from the jury:
Can we get clarification on how critical the charge window is to a charge if we believe an incident may have happened before or after the charge dates and the claimant is still the age specified in the charge.
That was a sensible question; it suggested that the jury was alive to the importance of a complainant’s age and appreciated that, provided that the complainant’s age was established, “the charge window” may not be important. However, the fact that the jury asked the question also suggests that they had failed to understand, absorb or recall the redirection that was given on 3 June.
At 12.10 pm, the trial judge responded to the jury’s question as follows:
What I understand you to be asking is this: if you were satisfied beyond a reasonable doubt that the event as described by a complainant occurred but you were not satisfied that it occurred between the dates specified in the particular charge, but you were satisfied that it happened outside those dates, but the complainant was still the same age as that specified in the charge, are you entitled to convict or must you acquit. The answer to that, the simple answer is that you may convict because with respect to the charges, except charges 3, 4, 5 and 6, the dates are not an essential element of the charges.
As I said to you, the position is different with respect to the alternative counts, so where you have count 3 and 4 and then count 5 and 6 because they involve changes in age. They involve changes in age for the complainant, so in count 3 it's alleged that the complainant was under the age of 10, count 4, which is the alternative, alleges that she was over the age of 10 but under 16. Similarly, with the fifth count, it alleges an offence under the age of 10. The sixth count alleges an offence between the ages of 10 and 16.
With respect to those counts, it is critical that you be satisfied that any incident or any act such as described by the complainant occurred when the complainant was the age or within the ages specified in the actual charge. With respect to the remainder of the charges, you must still be satisfied that the event or incident occurred when the complainant was the age specified in the charge, but you do not have to be satisfied beyond a reasonable doubt that it occurred between the dates specified in the charge so long as the age remains the same. (Emphasis added)
Immediately after the redirection, the prosecutor observed:
As I was listening to your Honour, the only concern that I had was that the date specified as to when the offence occurred is not an element, but in each charge there is an element that relates to the age of the complainant. (Emphasis added)
The prosecutor did not seek a further redirection and none was given. However, the prosecutor’s observation reflected that, in the context of the proceedings up to that point, he perceived that the jury might be left in a state of confusion regarding the significance of the dates in the indictment.
In the redirection, the trial judge again distinguished Counts 3–6 from the remaining counts, including Counts 1 and 2. This distinction reflected a distinction made by the prosecution. The prosecution must have had a reason for drawing that distinction, but the reason is not obvious to us and would not have been obvious to the jury. A “charge window” was important to all six counts. To establish charges 1, 2, 3 and 5 the prosecution had to prove beyond reasonable doubt that the incident occurred before A’s 10th birthday in January 1995, and to establish charges 4 and 6 the prosecution had to prove beyond reasonable doubt that the incident occurred after A’s 10th birthday.
There was no further communication between the judge and the jury until 10.24 am on 6 June 2014, when the judge received a note indicating that the jury had reached a verdict on all but one charge, in relation to which they could not agree (Count 20).
We are driven to conclude that the jury might have misunderstood the directions concerning timing. However, while those directions were very important in relation to Counts 1–6 (affecting complainant A), they were of no practical importance in relation to the other counts (as his Honour emphasised at each relevant point). Consequently, there is no basis for concluding that the jury’s misunderstanding in relation to the timing directions means that their verdicts on the other counts are unsafe or unsatisfactory. We note the following:
(a)Except for the directions about timing in relation to Counts 1–6, the trial judge’s summing up was clear, accurate and straightforward. On the appeal, the appellant conceded that the summing up was “very careful”.
(b)Apart from the further direction that was sought in relation to timing, the jury sought no further directions.
(c)The jury was directed to consider each charge separately and it must have done so because it reached a verdict of not guilty on Count 8 and was unable to reach a decision on Count 20.
The verdicts of not guilty that we will enter on Counts 1, 2, 3 and 5 do not undermine any use that the jury may have made of A’s evidence as tendency evidence in relation to the other counts. The jury’s verdicts show that the jury accepted the evidence of A; the jury must have been satisfied beyond reasonable doubt that the events the subject of Counts 1–6 occurred, and occurred when A was in primary school. Even if those events could not be shown to have occurred before A turned 10, the jury was entitled to rely on them as evidence of a tendency to be sexually attracted to young girls and to act on that attraction.
The verdicts on Counts 7, 9 and 11–23 are not unsafe and unsatisfactory by reason of our conclusions in relation to Counts 1–5.
Orders and further conduct of the matter
Accordingly, we make the following orders:
(a)In relation to each of Counts 1, 2, 3 and 5:
(i)The appeal is allowed.
(ii)The verdict and consequential orders, including sentence orders in respect of those counts, are set aside.
(iii)In lieu, on each count a verdict of not guilty is entered.
(b)Otherwise, the appeal against conviction is dismissed.
As the Court has entered verdicts of not guilty on Counts 1, 2, 3 and 5 and has set aside the relevant sentences, it is necessary to consider the concurrency and accumulation of the remaining sentences.
We note that, in relation to Counts 1, 2, 3 and 5, the trial judge imposed sentences of two years’ imprisonment, 18 months’ imprisonment, two years and six months’ imprisonment and three years and nine months’ imprisonment respectively. The total length of the sentences on these counts was four years and six months’ imprisonment (6 July 2016 – 5 January 2021). The sentences on Counts 1, 2, 3 and 5 extended the overall period of imprisonment by two years; the sentence for Count 23 finished on 5 July 2018 and the next remaining sentence (for Count 7) was to commence on 6 July 2020.
Section 74 of the Crimes (Sentencing) Act 2005 (ACT) permits us to amend the starting date of other sentences when a sentence of imprisonment is set aside. The Court will receive submissions on resentencing.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice North. Associate: Date: 17 February 2016 |
PENFOLD J:
I am grateful to have had the opportunity to read in draft the reasons of Murrell CJ and North J. Largely for the reasons given by their Honours, I agree with their conclusions, and with the orders they propose. There are, however, further comments I wish to make about two issues that have arisen in this case.
Significance of 1995 amendments of the Crimes Act 1900 (ACT)
As noted by their Honours, the Crimes (Amendment) Act 1995 (ACT) amended the Crimes Act 1900 (ACT), including in relation to provisions relevant to this trial. The amendments took effect on 19 June 1995, within the period specified in the indictment in relation to, relevantly, Counts 4 and 6. Those counts charged offences of sexual intercourse, during the period 2 January 1995 to 31 December 1996, with a person over the age of 10 years but under the age of 16 years. I note in passing that the indictment should in my view have repeated the legislative formulation of “of or above the age of 10 years” rather than assuming that “over the age of 10 years” included a person who would in normal parlance be described as being 10 years old (see R v AJ [2012] ACTSC 25 at [16] to [24]).
Before the Crimes (Amendment) Act took effect, the Crimes Act created offences of having sexual intercourse with a young person (s 92E). There was an offence constituted by conduct in relation to a child under the age of 10 years (s 92E(1)) and an offence constituted by conduct in relation to a child of or above the age of 10 years but under the age of 16 years (s 92E(2)). The offence involving a child under the age of 10 carried a higher penalty than that involving a child of or above 10 but under 16.
That is, the offences were quite distinct, and it was necessary, depending which offence had been charged, for the prosecution to establish that the child was under the age of 10 years or that the child had turned 10 years of age.
Depending on the state of the evidence, this difficulty could be ameliorated to a limited extent by including the “10 to under 16” offence in the indictment as an alternative charge to the “under 10” offence, as was done in Mr Tully’s case. However, the availability of an alternative verdict that the “10 to under 16” offence had been committed did not eliminate the need for the jury to be satisfied as to whether the offending conduct took place before or after the child turned 10 years of age.
The Crimes (Amendment) Act removed, from the offence provisions in relation to children under 16, the requirement that the child was at least 10 years old. This meant that, where the evidence did not clearly establish whether the relevant incident had taken place before or after the child’s 10th birthday, the offender could be charged with the “under 16” offence, and that offence could be made out even if the jury were satisfied that the child was in fact under 10, or was not sure whether the child had turned 10 before the relevant incident (as long as it was clear that the child was under 16 at the time). The new “under 16” offence thus covered much of the same territory as the “under 10” offence, while the “under 10” offence could be used where the evidence that the child had been under 10 was strong.
In support of these amendments, the Crimes (Amendment) Act also amended s 92S, which provided for alternative verdicts in relation to various other sexual offences, by inserting s 92S(5), which was relevantly as follows:
(5) Where, on the trial of a person for an offence against subsection 92E (1) ..., the jury—
(a) is not satisfied that the person in relation to whom the offence is alleged to have been committed was under 10 years of age when the offence is alleged to have been committed; but
(b) is satisfied that the accused is guilty of an offence against subsection 92E (2) ...;
the jury may find the accused not guilty of the offence charged but guilty of an offence against subsection 92E(2) ....
The effect of the overlap between the two offence provisions, and the alternative verdict provision (s 92S(5)), was that if a charge was laid alleging a s 92E offence against a child under 10, and the jury was satisfied of all elements of the charge except the element that the child was under 10, but was satisfied that the child was under 16, then the jury could find the accused not guilty of the offence involving a child under 10 years but guilty of the equivalent offence against a child under 16 years.
In contrast to the earlier form of s 92E(2), the offences relating to children under 16 no longer called for any consideration of whether the relevant incident had occurred before or after the child turned 10.
In this matter, references to s 92S(5) are a red herring. That provision had no relevance to the earlier form of s 92E(2), but applied only to an offence created by the new form of the provision, being an offence that did not exist before the Crimes (Amendment) Act took effect on 19 June 1995.
Section 92S(5) in general terms permitted a jury to find an accused who had been charged with one offence guilty of another offence if the evidence did not establish all the elements of the first offence but established enough of those elements to justify a finding of guilt on the other (less serious) offence. This reflected the overlap between the offences that was created by the amendment of s 92E(2), an overlap that had not previously existed. While there was no overlap between the two offences, the option to find an accused guilty of an offence other than the offence charged did not eliminate the need to establish all the elements of the relevant offence before a finding of guilt could be reached, and therefore did not eliminate the need for satisfaction beyond reasonable doubt about whether the incident took place before or after the complainant’s 10th birthday.
Although s 92S(5) refers to an alternative verdict of guilty of an offence against s 92E(2), I do not consider that s 92S(5) could be read as permitting a jury to find an accused guilty of an offence against s 92E(2) if the particular form of that offence had not existed at the time of the relevant conduct. A person charged now with an offence against what was s 92E(1) that was alleged to have been committed before 19 June 1995 could not in my view be found guilty of the offence against what was then 92E(2) unless the pre-19 June 1995 version of the offence was made out (that is, that the complainant had turned 10 but had not turned 16 at the time of the offence).
In summary, the insertion of s 92S(5) has not solved the difficulty created by the “10 to under 16” offence in relation to conduct alleged to have taken place while that offence existed (that is, before 19 June 1995). Section 92S(5) is irrelevant in this case not because there was no statutory alternative charge at the time of the misconduct (the absence of a statutory alternative was addressed by including the s 92E(2) offence as an alternative in the indictment) but because there was at that time no offence of sexual intercourse with a child who was under 16 that did not require the jury to determine, beyond reasonable doubt, whether the child had or had not turned 10. Section 92S(5) has not changed that position in relation to conduct before 19 June 1995, and any attempt to change it would at least raise issues under s 25(1) of the Human Rights Act 2004 (ACT).
The enactment of the Crimes (Amendment) Act could have been relevant in this case in one other respect. That Act meant that the offence with which Mr Tully was charged in Counts 4 and 6 (sexual intercourse with a child over the age of 10 but under the age of 16), ceased to exist on 19 June 1995. Despite this, the relevant counts on the indictment, Counts 4 and 6, particularised a period extending 18 months beyond that date. If Mr Tully had been found guilty of either Count 4 or Count 6, that verdict would also have had to be set aside, because the form of the indictment left open the possibility that the conduct relied on by the jury had taken place after the offence charged had ceased to exist.
Re-sentencing on appeal
I agree with Murrell CJ and North J that it would be useful to receive submissions on re-sentencing in the light of the setting aside of the sentences imposed on Counts 1, 2, 3 and 5. However, in the absence of any appeal against sentence, this is not, on my part at least, an invitation to make submissions that Mr Tully should be re-sentenced for any of the offences for which guilty verdicts remain in place, except to the extent that s 74 of the Crimes (Sentencing) Act 2005 (ACT) permits the dates of those surviving sentences to be adjusted to take account of the setting aside of the sentences on Counts 1, 2, 3 and 5. Section 74(5) makes it clear that the term of a sentence cannot be amended in reliance on s 74.
On the other hand, submissions as to the impact of our conclusions on the original non-parole period will need to address s 74(5) to the extent that it specifies that the non-parole period of a sentence must not be amended under s 74. It would seem surprising if Mr Tully’s current nine-year non-parole period on a sentence totalling 14 years and six months imprisonment could not be reduced despite the total sentence being reduced by the relatively significant period in which Mr Tully would have been serving only sentences imposed in respect of Counts 1, 2, 3 and 5.
| I certify that the preceding sixteen [16] paragraphs numbered [141] to [156] are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 17 February 2016 |
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