Turner v Visser
[2001] TASSC 135
•23 November 2001
[2001] TASSC 135
CITATION: Turner v Visser [2001] TASSC 135
PARTIES: TURNER, Leslie Norman
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 8/2001
DELIVERED ON: 23 November 2001
DELIVERED AT: Launceston
HEARING DATES: 13 November 2001
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: J Ransom
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 135
Number of Paragraphs: 40
Serial No 135/2001
File No LCA 8/2001
LESLIE NORMAN TURNER v CLAAS VISSER
REASONS FOR JUDGMENT SLICER J
23 November 2001
The applicant was convicted of the offence of indecent assault contrary to the Police Offences Act 1935, s35(3). He was employed as a carpenter with a company contracted to maintain the repair of houses owned by the Department of Health & Human Services (Housing Services Division) and would normally work with another employee. The two men would be allocated a list of houses requiring attention and attend to the required tasks in some form of sequence.
On 12 September 2000, the applicant went with his fellow employee to the complainant's home outside Launceston in order to fit safety locks designed to protect the residents from outside intrusion. The complainant claimed that while the applicant was in her home, and his work mate engaged elsewhere, he indecently assaulted her. She said that while he was showing her how the deadlock worked, she was asked if she had a boyfriend and whether he could return later in the day or at a later date. When she refused, he asked if he could touch her and despite protest, touched and rubbed her between the legs and kissed her on the forehead. After the assault, the applicant again asked whether the complainant would be prepared to meet with him socially. The complainant, who had two young children, at one stage mentioned that "he didn't want me to report him to the Housing Commission or whatever". Nothing further untoward occurred.
When the applicant and his fellow employee left the house, the complainant rang a friend and said in her evidence, without going into detail, told her "What had happened". Later in the day she contacted the police.
On 19 September 2000, the applicant was interviewed by police. After some general questioning, he was asked about his version of the events occurring on 12 September. Having established from the applicant's answers that he was one of the persons at the residence, the question was put as to whether he had asked the complainant "whether she was seeing anybody", to which he replied that he could not recall doing so, but added "I can't 100% say I didn't. I often say oh, you live here by yourself with your kids or something like that … I often say things like that".
The question was appropriate and doubtless intended to check the internal consistency of the complainant's account and, if possible, corroborate it in some material way. With the same purpose in mind, the interviewing officer put the next matter as to whether the applicant had suggested that he and the complainant "get together", and further when the applicant replied that he could not recall saying that, the officer changed the direction of his questioning, as the following passages show:
"Okay, have you ever said that to anybody that you've done work for
Oh yeah, I reckon I probably have
You reckon you probably have
Yeah
When have you done that
Oh I don't know
…
I don't mean get together, I mean its, you know, say come back and see you sometime or something or whatever, you know
And you've said that have you
Mm
Okay, did you say that on this occasion
I don't recall
…
Is it possible that you said it to her
Oh I don't know, I have no idea
Okay, do you deny that you said to her would there be any chance of you or me getting together
Can't deny it because I don't remember
Okay, but you agree you have said it to someone before
Yeah, oh yeah
You have said it to some people whilst at work
Yeah
Do you normally chat up the people you're doing work for
Oh, sometimes
Yeah, sometimes, if they're a good looking sort or …
Oh no, just - well I basically call conversation sort of a chat up to a degree whether its a male or a female wouldn't it, do you know what I mean. Like you know what I'm saying
…
When you sort of say, you know, you come back a bit later, what do you mean by that or what are you thinking
Well if I am chatting someone up I ask if I can come back and see them sometime
Right, and do you recall, do they say yes or no or …
Yes, sometimes they say yes
Do you go back late on
Sometimes
…
I've made a lot of friends
…
Right, so when you do go back and see these people, not this one specifically, when you go back and see these other people what does that entail. To have a coffee or you …
Yeah, go around and have a coffee and that
Does it ever involve sex
Occasionally
Yep, occasionally
…
So you don't ever go back around to their house for sex
No, I go and see them all the time but I just haven't been there ???? February
…
A lot of women crack onto you too you know
Well we know that."
It is easy to discern a purpose in the line of questioning. Given some of the earlier vague or ambiguous answers, the officer was attempting to expose previous behaviour in order to see whether the suspect would admit to similar conduct on the particular day. General admissions might lead to others specific to the particular incident which in turn might be shown to be consistent with the complainant's account which would thereby be corroborated by such admissions.
The line of questioning was relevant (Smith v R [2001] HCA 50), and admissible on the hearing. It was admissible as showing consistency or pattern of conduct and admissions might enhance the credibility of the complainant.
The questions then returned to the specific allegations made by the complainant about conduct and conversation. The applicant admitted presence and that the person described was himself rather than his work mate, but denied improper conduct.
No objection was taken to the reception of any of the evidence comprised in the record of interview. While the evidence was admissible, it was susceptible to exclusion on the bases that it went to character and its prejudicial effect far outweighed its probative value and, further, that it amounted to evidence of propensity.
The grounds of appeal raise three related issues:
(1)Whether the learned magistrate was, absent objection, required to exercise his own discretion and exclude the evidence?
(2)The evidence having been received, what use could be made of it?
(3)Whether, the evidence having been received, the prosecutor was entitled to cross-examine on it?
The remaining issues are whether the evidence of the complainant's friend was capable of enhancing the credibility of the complainant, and whether the sentence was manifestly excessive.
Reception of evidence
Ground A of the amended notice to review claims:
"The learned Magistrate in convicting the Applicant erred in law by admitting into evidence evidence of similar facts which only went to show that the Applicant had a propensity or disposition in that he was the sort of person likely to commit the offence that he was charged with."
No application was made to exclude the evidence and the learned magistrate had no means of knowing its contents before admission. While the absence of objection is not conclusive (R v Hudson [1912] 2 KB 464) it might, dependent on the forum and the nature of the evidence (Inman v Gibbens (1926) Tas LR 24), not amount to a reviewable error (R v Bridgwater [1905] 1 KB 131).
Failure to object to a particular piece of evidence is not necessarily fatal to an appeal (Stirland v Director of Public Prosecutions [1944] 2 All ER 13), since, as Viscount Simon said at 19:
"The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel's discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal. But where, as here, the reception or rejection of a question involves a principle of exceptional public importance, it would be unfortunate if the failure of counsel to object at the trial should lead to a possible miscarriage of justice. There is nothing in the Act of 1898 to suggest that such an objection is necessarily invalid unless taken at the time, and in other branches of the law the right to object on appeal that evidence was inadmissible is not necessarily forfeited by the failure to object when the evidence was given. The object of British law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive."
This was not a case of a conscious decision taken by counsel, incompetently (R v Ensor [1989] 2 All ER 586), or in order to preserve a ground of appeal (R v Cutter [1944] 2 All ER 337). But, it is possible to discern a basis on which counsel might have made a conscious reason not to object to the evidence. The applicant was charged with an act of indecent conduct. The surrounding circumstances included language suggestive of possible intimacy which coloured the conduct. It was an answer to that colour to show that "friendly conversation" might lead to later intimacy and that such had previously occurred. This might have caused the complainant to misunderstand the meaning of the language or at least, her correct interpretation of it did no more than give her an opportunity to consider or dismiss his advances. Evidence of how other persons had responded to friendliness or suggestion might have afforded a line of defence, tactically sound. That approach to the evidence was one of nuance rather than a concession of criminal conduct. Failure to take the evidentiary point (R v Alexander [1975] VR 741), especially if it resulted from a conscious forensic decision (R v Gay [1976] VR 577, Roissetter v R (1984) 11 A Crim R 325, Steinhauser v Davies (1994) 3 Tas R 258) is significant to any appeal.
Ordinarily an accused person is bound by the way counsel conducted the trial (R v Birks (1990) 19 NSWLR 677, R v Ignjatic (1993) 68 A Crim R 333), and ordinarily a point not taken at trial will ordinarily not afford a ground of appeal unless the error has led to a miscarriage of justice (R v Ignjatic (supra) at 336). In Tasmania, the appropriate test is that of an unsafe or unsatisfactory finding (Kelly v O'Sullivan (1995) 4 Tas R 446).
In this case, there was sufficient evidence, independent of matters of previous conduct or experience, to safely permit the finding (Pope v Ewendt (1977) 17 SASR 45). The complainant gave clear evidence of the misconduct and was not shaken in cross-examination. Her credibility was strengthened by the evidence of her friend. The applicant was at her home at the relevant times. Some of his answers as to events of 19 September were vague or evasive.
Evidence received through cross-examination
The evidence, once admitted, was used by the prosecutor as a vehicle for cross-examination. The applicant, in his evidence-in-chief, had denied impropriety, but conceded that he might have asked the complainant if she had a boyfriend, but not in a sexual context. The cross-examiner attempted the same methodology as that employed by the interviewing officer, namely, to show a history of opportunistic conduct which was consistent with the account given by the complainant. He used extracts from the answers given at interview as a vehicle for that purpose. The following exchanges selected from the transcript, illustrate the approach:
"Move onto page 9, about half-way down, where Helmich says, 'Okay, Miss Brown has made an allegation that you have said to her or asked her whether she was seeing anybody'. And you were asked, 'Do you recall doing that?' And what was your answer? ... I don't recall.
Your answer was, 'Not really'. You didn't say No. You just said, 'Oh, not really'. Now someone has just asked you a question relating to a conversation you have had with another person about some, shall we say for want of better words, some advance you have made to this person, to a female. You said, 'Not really'. Bit equivocal, bit iffy, isn't it? ... Yes.
Why did you say 'Not really'? ... Because I didn't actually recall the conversation I had with her.
…
And Helmich sort of said, 'No', and then you have said, 'I can't 100% say I didn't. I often say "Oh, you live here by yourself with your kids or something like that'". Now when you have used that line there, are you saying that is something that you just said to Yolande Brown or something you have said in general in the past? ... Just something that I say in general.
Why would you say something like that? ... Just conversation.
What business is it of yours? ... None at all.
…
So you often open conversation with a complete and utter stranger, do you live here by yourself, have you got kids or what? Do you often do that? ... Oh, sometimes on the job, yeah.
Well I put to you that one could infer that you do this as a matter of course. This is not the first time you've done it, in fact it's probably not the 101st time you've done it?
MR BRETT: Well, done what. I'm not sure what he's - my friend's referring to.
HIS WORSHIP: Yes, I think that should be spelled out.
MR HIBBLE: Well, I say, it's probably not the first, not the 101st time you've said to someone, Do you live here by yourself with your kids, or something like that? Have you done it more than once? ... Yeah, I probably have.
Why? ... It's just conversation.
Conversation? ... Just the same as the weather and that area and whatever.
And she further alludes that you said, 'Would there be any chance of you and me getting together. Do you recall saying that?' And you said, 'No I don't'. You don't recall saying that?…..No, I don't.
Or you didn't say it? ... I don't recall saying it.
You don't recall saying it. So it's quite possible you did. And have you ever - top of page 10 - 'Have you ever said that to anybody that you've done work for? Oh yeah, I reckon I probably have.' And I believe at this stage of the interview is where you point out - no it's not, I apologise for that. 'Oh yeah, I reckon I probably have.' So how many times would you have done it? ... You mean chatted to someone like that?
Mm? ... Oh, I may have done it a few times.
A few times. What's the - what is your purpose in asking that sort of question? ... I have no purpose.
Mm. Would it be the persons you ask may be single mothers? ... No, not always.
Not always? ... No.
So you've tried it with the married women as well? ... No, we're not talking just specifically women.
Did you say that you'd come back and see her sometime or something or whatever? ... Not that I know of, no.
You don't - not that you know of. You don't recall? ... I don't actually recall much about the conversation.
'Is it possible that you said it to her? Oh I don't know, I have no idea.' And then you're asked, 'Okay, do you deny that you said that - said to her, would there be any chance of you and me getting together'? And you said, 'I can't deny it because I can't remember?' ... Yeah.
It's a pretty savage accusation isn't it? What the police officer is saying to you, that you're chatting up this bird and you don't deny it? You don't remember, do you? ... No, I don't.
But as I said, it's a fairy serious allegation, in your occupation, you're going into strange people's houses and you're being accused of literally chatting up females and touching them? ... Mm.
…
And you're asked at the bottom of page 10, 'Do you normally chat up the people you're doing work for', and you said, 'Oh sometimes'? ... Yeah.
Now, Helmich has used the common expression, 'Do you normally chat up people you're doing work for?' Common expression, and you've agreed you do, sometimes? ... But¾
Yeah, well, just a sec. Would you please explain to the court what you mean by chatting someone up? ... Well chatting someone up doesn't necessarily mean it's to a woman. It can be to a bloke or anything.
What, you chat up blokes? ... I'm not talking about that sort of chat up.
Now come on¾? ... Chat up is just - chat up, get 'em - talking to them, get them talking and whatever.
What do you understand by the common expression that's been round for a long time, chatting a woman up. What do you understand by that expression? ... But you're talking about chatting a woman up now though. You've just - it was just a chat up you were talking about before.
…
What do you mean by chatting her up? ... Just chatting her up. Having a bit of a flirt, I suppose.
I put to you, Mr Turner, the purpose of you chatting up a woman is with the view to having sex with that woman? I put that to you? ... No.
…
Mm. Would you fancy as what could be called as a middle-aged Lothario? ... I am not sure what the last bit means.
Go looking for women, you are in your 40s, a bit of a mid-life crisis? ... No, no.
No? ... No.
They are available, aren't they? ... Oh, probably.
Mm. Do you work on the theory, it is probably fairly common and sexist that for every 10 knock-backs, you get a score? ... No.
You don't? ... Well, I put it to you, on your own words, that you have done this before, you have chatted people up with the object of getting sex and every now and then you succeed. I put that to you. That is what you are up to. Well? ... No.
You don't. Well, I will put it to you that day that you were at 7 Melaleuca Court, Rocherlea. Yolande Brown was there. The woman you recall as being tall with long darkish hair. You were there to put the locks in, put the door jam in and you chatted her up. You asked her if she had a boyfriend, didn't you? ... I don't recall."
The cross-examiner then proceeded to challenge the applicant's version of events of 12 September.
Counsel for the applicant on this appeal contended that the tenor of the cross-examination contravened the provisions of the Evidence Act 1910 ("the Act"), s85.
The learned magistrate made use of the material in the record of interview in his reasons for decision, but none to the answers given in cross-examination, although his opinion was probably reinforced by those answers, and certainly the cross-examination could be regarded as forming part of the totality of the material as providing a "short description of the man's character".
However, there was no additional vice in the cross-examination. The cross-examiner made use of a "former statement relative to the subject matter", said to be "inconsistent with his present testimony" (the Act, s98) which did not constitute "general evidence of bad character" (the Act, s97), or prior convictions (the Act, s85(10)). In relation to character (the Act, s85(10)), insofar as acts of consensual sex occurring through work related contact can nowadays be said to be a reflection on character, the questioning remained relevant to this prosecution (the Act, s85(10)(a)).
The cross-examiner might have required leave by reason of the Act, s102 "in so far as it affects[ed] the credit" of the applicant, although the questions could be regarded as "relevant to the proceeding". That specific question was not raised at hearing or on appeal. While the respondent does not seek the aid of the Justices Act 1959, s110(1)(ab), it will be applied if the conclusion as to relevance and its effect on the Act, s102, be incorrect.
The remedy available to the applicant was that of objection to the reception of the evidence, not complaint as to the use of the material during the course of cross-examination.
Ground A has not been made out.
Use of evidence
Ground 1 of the amended notice to review claiming:
"1THE learned Magistrate in convicting the Applicant erred in fact and law by finding that the Applicant was a 'serial sexual opportunist' was not supported by the evidence and against the weight of the evidence."
has no validity. The evidence was capable of supporting the finding and the complaint is really that it was used in an impermissible manner. It will be dismissed.
Grounds 2 and 3 will be considered together. They state:
"2The learned Magistrate in convicting and sentencing the Applicant to a suspended term of three months imprisonment erred in law by using a finding as to the Applicant's character, that is, that he was a serial sexual opportunist to support a finding that the Applicant had committed the acts of indecent assault with which he was charged.
3THE learned Magistrate in convicting the Applicant erred in law by finding that his finding as to the Applicant's character amounted to corroboration of the evidence of Yolande Brown when such findings were neither capable of amounting to such corroboration nor did they in fact corroborate that evidence."
The learned magistrate made full use of the material. The structure of his reasoning suggests that he paid regard to it as a means of assessing the prosecution case rather than, having accepted the version of the complainant, using it as supporting a further conclusion that the applicant had used a consistent form of methodology to assess potential sexual partners. But he did so as part of his analysis of how the prosecution had put its case and concluded that is characterisation by the prosecutor was "not an unfair description of the defendant".
But the learned magistrate did not engage in propensity reasoning (Emery v R [1999] TASSC 141). He described the effect of the evidence as going to the character of the applicant, and on the basis of that assessment, concluded that he did not believe the evidence of the applicant given at trial. He did not reason that because the applicant had on previous occasions made advances that he was likely to have done so on this occasion. Instead, having assessed credibility, he then went to the cogent prosecution evidence and found that he accepted its substance. His use of the evidence was permitted in two ways. If it could be regarded as similar fact evidence (and on my analysis the learned magistrate did not so use the evidence) then it showed circumstances of opportunity, methodology and similarity of the form of the assault. As Gibbs ACJ said in Markby v R (1978) 140 CLR 108 at 116:
"The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition."
If it is regarded as propensity evidence (and on my analysis the learned magistrate did not so use the evidence) then, as was stated by Gibbs CJ in Perry v R (1982) 150 CLR 580 at 585:
"Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it. It would, however, be a mistake to think that because the reason for the rule is that the evidence would be unfairly prejudicial, the rule itself does no more than require the judge to exercise a discretion, and to weigh the prejudicial effect of the evidence against its probative value. …"
The evidence was relevant (King v Bryant (No 2) [1956] QSR 570), and once admitted without objection "it was open to the learned Magistrate to attribute to it such probative weight as was fairly appropriate in the circumstances" (Angelin v Security and General Insurance Co Ltd (1984) 37 SASR 254 , Olsson J at 257).
Grounds 2 and 3 will be dismissed.
Recent complaint
The evidence was relevant and admissible (Kilby v R (1973) 129 CLR 460), and the use made of it by the learned magistrate was in accordance with legal principle (Jones v R A46/1996). The amended notice to review claims error on the grounds that:
"5THE learned Magistrate in convicting the Applicant erred in law by finding that the evidence of Megan Jayne [sic] Reilly, said to be evidence of recent complaint, amounted to corroboration of the evidence of Yolande Brown when such evidence was neither capable of amounting to such corroboration nor did it in fact corroborate that evidence.
6THE learned Magistrate in convicting the Applicant erred in law by failing to place any or any significant weight on the conflicts between the evidence of Yolande Brown and the evidence of Megan Jane Reilly as to statements which had allegedly been made to Megan Jane Riley by Yolande Brown after the offences were committed."
The complainant told the Court that she had phoned her friend about half an hour after the applicant had left her home. She was asked not to recount the detail of what she said and was confined to saying that the subject of the phone call was "what had happened". In cross-examination she denied certain details, presumably stated in her own original statement, and agreed that she had not said a lot to her friend, but added "I think I said he was touching my bum, I may have told her that … he tried to kiss me", adding as a belief that she had mentioned that the man had touched her in personal places. The friend was asked "without going into any detail" whether she had received a phone call and replied "Yep", with the subject being "Problem with one of the fellows that had called to fix the locks at her place". The following exchanges during cross-examination provided details of her account:
"When Miss Brown telephoned you and spoke to you about this man who had come to change the locks, did she say this to you, I was out the front talking to the guy who was at the front door because he had just taken the door off, I asked him how to use the locks? ... Yep.
Quite sure about that? ... Yep.
Did she say this to you, I went into the laundry and he asked me whether I knew how to work the locks? ... Yep.
And did she say this to you that the man that she had the trouble with had said to her, Yes but that's not going to stop me from doing this and then he touched her on the backside? ... Yep.
Quite sure? ... Yes."
The complaint was recent and its making (R v Lillyman [1896] 2 QB 167, Kilby v R (supra)), was evidence which could be used to enhance the credibility of the complainant. The claimed differences between the evidence of the complainant and her friend all related to the details of the conversation, not to its making and substance. They were peripheral to the use to which the complaint could be put. The learned magistrate was entitled to disregard minor inconsistencies internal to the scope of the conversation.
Grounds 5 and 6 are not made out.
Sentence
The applicant, aged 41, was married and had been in stable employment. He had no relevant prior convictions. The maximum penalty was that of a fine of $2,000, twelve months' imprisonment, or both. The acts of indecency were persisted with after the complainant showed no interest, although the applicant desisted when firm opposition was expressed. The learned magistrate found the offender to be of good character and made no reference to the material which suggested that he had previously used his position for sexual opportunity.
The learned magistrate correctly identified the vulnerability of a single woman at home with her children and the advantage taken of that vulnerability. In particular, he had regard to the fact that the offender had been admitted into the home in order to fit locks to protect the occupants and used a working environment to pursue a sexual purpose. The effect on the complainant was significant and it was necessary to have new locks fitted to the house. The learned magistrate considered the factors of general and special deterrence as significant ones. He made an adverse finding on character, stating "You have shown no - at least by conviction, no previous predilection towards this sort of behaviour although your job at the time gave you opportunity to follow a character that I have found you to possess". The learned magistrate was entitled to express that view. The evidence was not that the applicant had previously assaulted another sexually, but that the nature of his work had afforded him opportunity to seek out sexual involvement. It was this part of his character which caused the learned magistrate to believe that the applicant had made a speculative and untoward advance which resulted in criminal conduct which required personal deterrence. It was open for the sentencing magistrate to take this course and the suspended sentence reflected this approach.
The sentence of three months' imprisonment, wholly suspended, was a permitted penalty.
Conclusion
The appeal against conviction and sentence is dismissed.
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