Veysey v R
[2011] VSCA 309
•14 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0255
| MARK DAVID VEYSEY |
| Applicant |
| v. |
| THE QUEEN |
| Respondent |
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JUDGES: | WARREN CJ, WEINBERG and TATE JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 13 May 2011 |
DATE OF JUDGMENT: | 14 October 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 309 (Revision 1, 18 October 2011) |
| JUDGMENT APPEALED FROM: | R v Mark David Veysey (Unreported, County Court of Victoria, Judge M P Bourke, 29 July 2010) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Sexual offences – Particularisation – Offences charged related to four alleged occasions in 1978 and 1979 – Multiple complainants gave evidence as to what occurred on first occasion – First occasion particularised using ‘first occasion’ method – Inconsistencies between evidence given by each complainant – ‘First occasion’ method incapable of overcoming latent ambiguity in offences charged by reference to that occasion without additional particulars being given – Not apparent that each complainant describing same event – Jury directed after each complainant gave evidence which counts purportedly described by that evidence – Jury direction presupposed evidence given related to same event and counts charged in respect of that event – First occasion inadequately particularised by Crown – Jury directions compounded unfairness consequent upon inadequate particularisation – Trial with respect to first occasion convictions miscarried – Leave granted – Appeal allowed.
CRIMINAL LAW – Evidence – Sexual offences – Offences charged related to four occasions in 1978 and 1979 – Multiple complainants gave evidence about alleged first occasion – Two complainants unable to differentiate between first occasion and other occasions on which they alleged acts of indecency occurred – Evidence should not have been treated as descriptive of acts charged by reference to that occasion – R v Osborne [2009] VSCA 88.
CRIMINAL LAW – Application for leave to appeal against conviction – Sexual offences – Offences charged related to four occasions in 1978 and 1979 – Complainant alleged that second occasion occurred on two separate dates but could not elect between those dates – Crown case particularised by reference to first date – No rational basis on which jury could be satisfied to criminal standard that offence occurred on that date – Conviction on this count unsafe and unsatisfactory – Leave granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M O’Connell SC Mr R H Lawrence | Pica Criminal Lawyers |
| For the Respondent | Mr G Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
Overview
The applicant has been found guilty of three counts of inciting or procuring the commission of an act of gross indecency with a girl under the age of 16, and six counts of being a party to the commission of an act of gross indecency in the presence of a girl under the age of 16. He has appealed that conviction on the grounds that first, the learned trial judge erred in refusing to uphold his no case submission; secondly, that inadequate particularisation of the Crown case caused his trial to miscarry; and thirdly, that the jury’s verdict was unsafe and unsatisfactory having regard to all the evidence. The first of these two grounds rely upon the same arguments. Essentially, they constitute a complaint that the Crown failed to particularise its case.
For the reasons that follow the appeal should be allowed.
Background facts
The applicant worked as a teacher at a school for deaf children in 1978 and 1979 when he was between twenty two and twenty four years of age. That school has since been demolished and many if not all of its records lost or destroyed. The applicant taught a class made up of roughly the same nine or ten students during both years. This class consisted of a similar number of boys and girls aged between eight and nine years old.
Seven of those students were complainants in this case. Three of those complainants were female, LU, HV and GS. Four of those complainants were male, RP, KW, ZP and MR. Two of those students, a female, OD, and a male, GR, gave evidence that they could not recall anything untoward happening whilst they were taught by the applicant. A tenth student could not be located for the purposes of the trial.
Primarily, the Crown alleged that on four occasions between 1 January 1978 and 31 December 1979, the applicant caused the seven complainants to expose their genitals to their classmates and to himself. The Crown also made a secondary allegation that on one occasion the applicant caused two of those complainants, GS and RP, to kiss one another in a sexual manner.
The presentment contained the following twelve counts:
| Count | Student | Description: ‘The applicant….’ | Offence |
| Count 1 | LU | Incited or procured LU to commit an act of gross indecency in his presence. | Crimes Act 1958 s 69(1)(b)[1] |
| Count 2 | GS | Incited or procured GS to commit an act of gross indecency in his presence. | Crimes Act 1958 s 69(1)(b) |
| Count 3 | RP and GS | On an occasion other than that referred to in count 2, incited or procured GS to commit an act of gross indecency with RP in his presence. | Crimes Act 1958 s 69(1)(b) |
| Count 4 | HV | Incited or procured HV to commit an act of gross indecency in his presence. | Crimes Act 1958 s 69(1)(b) |
| Count 5 | HV | On an occasion other than that referred to in count 5, incited or procured HV to commit an act of gross indecency in his presence. | Crimes Act 1958 s 69(1)(b) |
| Count 6 | MR | Committed an act of gross indecency with MR. | Crimes Act 1958 s 69(4) |
| Count 7 | MR | Was a party to the commission of an act of gross indecency by MR in the presence of GS. | Crimes Act 1958 s 69(1)(c) |
| Count 8 | RP | Was a party to the commission of an act of gross indecency by RP in the presence of HV. | Crimes Act 1958 s 69(1)(c) |
| Count 9 | RP | Was a party to the commission of an act of gross indecency by RP in the presence of LU. | Crimes Act 1958 s 69(1)(c) |
| Count 10 | KW | Was a party to the commission of an act of gross indecency by KW in the presence of GS. | Crimes Act 1958 s 69(1)(c) |
| Count 11 | KW | Was a party to the commission of an act of gross indecency by MR in the presence of VH. | Crimes Act 1958 s 69(1)(c) |
| Count 12 | ZP | Was a party to the commission of an act of gross indecency by ZP in the presence of an unknown female under the age of 16. | Crimes Act 1958 s 69(1)(c) |
[1]As in force at the time of the alleged offences.
The Crown separated these twelve counts[2] across four nominated occasions, each of which took place during school hours in the applicant’s classroom. However, the distribution of the counts on the presentment bore no relation to that four-occasion division.[3] Those occasions were identified as follows.
[2]Acquittals were ultimately directed in respect of two of these counts (counts 1 and 6), and a finding of not guilty was returned in respect of another (count 3).
[3]Thus, for example, counts 1 and 9 were both said to have occurred on the same day, which was, on the Crown case, the last occasion in respect of which the applicant was charged with causing his student’s to expose themselves.
The first occasion
The Crown alleged that the first occasion happened three or four months into the 1978 school year, or at the start of the 1978 school year.[4] It was particularised using the ‘first occasion’ method,[5] as the first time the applicant required his students to expose themselves, and the ‘first occasion’ in the 1978 school year on which an act of exposure occurred.
[4]This was made explicit by the Crown in its opening. It was also implicit in the Crown case insofar as the fourth occasion was particularised as the first occasion in which an act of exposure occurred in the 1979 school year. In its opening address, the Crown alleged that this occasion occurred three or four months into the 1978 school year. As different witnesses began to give evidence, the Crown gradually ceased to particularise the first occasion by reference to a specific time or even by reference to the year 1978. In its closing address no mention was made of the fact that this occasion was supposed to have occurred in the first half of the 1978 school year, or in fact, that, on the Crown case, it must have occurred in 1978.
[5]See [18]-[19] below.
During the trial, the Crown failed to identify what occurred on this occasion and its attendant circumstances, nor did the evidence it led in support of its case provide a consistent picture of what was said to have happened. Insofar as the prosecution case can be discerned, it was alleged that one day, in early-to-mid-1978, the applicant forced the following students to expose their genitals in his presence: GS, HV, MR, RP, KW and ZP. It was further alleged that whilst MR was exposing himself on this occasion the applicant fondled his penis. This event formed the basis for counts 2, 4, 6, 7, 8, 10, 11 and 12.
The jury found the applicant guilty by majority verdict on each of the counts making up the first occasion, except for count 4, procuring an act of exposure by HV of which he was found guilty unanimously, and count 6, touching MR’s penis, in respect of which an acquittal was directed.
The second occasion
The second occasion was particularised by reference to the first occasion. The Crown alleged that about three days after that occasion, the applicant required HV to expose herself in his presence by sitting in a chair in the corner of his classroom, and having removed her underwear, use a mirror to look at her vagina whilst he stood next to her. This event formed the basis of count 5.
The applicant was found guilty by majority verdict of count 5.
The third occasion
The third occasion was said to have occurred ‘some time after’ the first occasion. The Crown alleged that the applicant forced GS to kiss RP on the mouth. This event formed the basis of count 3.
The applicant was found not guilty in respect of count 3. It is not clear whether that verdict followed a conclusion by the jury that the act had not occurred, or a conclusion that it did not constitute an act of gross indecency for the purposes of s 69(1)(b) of the Crimes Act 1958. Nothing further needs to be said in relation to this occasion.
The fourth occasion
The fourth occasion was alleged to have occurred at some point during 1979. It was also particularised using the ‘first occasion’ method. On the Crown case it was the first time that the students were required to expose their genitals in the 1979 school year. The applicant allegedly required KW, ZP and RP to sequentially expose their penises to the rest of the class, after which HV, GS and LU were required to sit in that order on a chair and, after pulling down their pants, show their vaginas to the class with the aid of a mirror. This event formed the basis of counts 1 and 9.
The applicant was found guilty by majority verdict of count 9. An acquittal was directed in respect of count 1 because LU gave evidence at trial that was inconsistent with the manner in which the occasion forming counts 1 and 9 had been particularised.
Summary of reasoning
Broadly speaking, the applicant’s trial miscarried because the Crown was not able to overcome fundamental inconsistencies and deficiencies in the evidence it led in support of its case. Such problems are not unexpected when a criminal prosecution is brought more than thirty years after the offences in question are alleged to have occurred. Nor is it entirely surprising that the complainants admitted to discussing the events in question amongst themselves over the years preceding the trial, that some of the complainants admitted ‘recovering’ their hitherto forgotten memories of those events as a result of such discussions, or that some complainants had a poor recollection of what had supposedly happened.
The Crown sought to overcome these evidentiary limitations by particularising its case using the ‘first occasion’ method. Thus, the first occasion was particularised as the first time that an act of genital exposure was incited by the applicant between 1 January 1978 and 31 December 1978, and the fourth occasion was particularised as the first time that an act of genital exposure was incited by the applicant between 1 January 1979 and 31 December 1979. The second and third occasions were particularised by identifying their temporal relationship to the first occasion.
An accused person may only be convicted of a charged act and no other. Where they are alleged to have repeatedly performed the same criminal act over a period of time in circumstances in which it is not possible to differentiate the act charged from the remaining acts in the series by identifying a feature unique to it, the court may permit the Crown to particularise its case by reference to the first occasion on which such offending occurred. That first occasion must be actual rather than notional. This method is not uncommon in cases where abusive sexual relationships have been maintained over a long period. Whether or not such particularisation is necessary or sufficient will depend upon the circumstances of each case. It cannot be permitted where it would prevent the accused from receiving a fair trial.
Here, each of the complainants who purported to give evidence with respect to the first occasion described it with sufficient inconsistency to prevent the applicant from clearly identifying its features or understanding what was alleged to have occurred on that date simply by reference to that evidence. Having regard to this differing evidence, merely identifying that event as the ‘first occasion’ on which genital exposure was incited by the applicant without providing a ‘base narrative’ of what was alleged to have occurred thereon, against which such evidence could be tested, was incapable of properly particularising the acts charged. As discussed, that method is generally permitted to distinguish a charged count from the multiplicity of uncharged counts that exist when the repeated iteration of the same offence in the same circumstances over a period of time prevents a single instance being identified by means of a unique feature. It cannot be used, without additional particulars being given, to overcome the latent ambiguity which flows from different witnesses giving conflicting evidence about the same event.
As the trial progressed, and each of the complainants began to give evidence, the flaw in permitting the Crown to particularise its case using a bare first occasion method became increasingly apparent. Since it was not clear what the Crown was saying had occurred on the first occasion, it was frequently not apparent, even to the Crown, whether the evidence led described that occasion, described other occasions, or was descriptive of charged or uncharged acts.[6] It was also not immediately apparent to the jury, the learned trial judge or the parties, that each of the complainants was actually describing the same event or events. These problems flowed directly from the inchoate nature of the Crown case. However, rather than force the Crown to properly particularise that case, or bring the case to the level of the evidence, the learned trial judge instead sought to elevate the evidence to the level of the case. His Honour did this by adopting the following method. First, a complainant would give evidence. Then, a discussion would take place in the absence of the jury as to which count(s) that evidence related. Finally, the jury would be brought back into court and directed in accordance with the results of that discussion. Such directions given in the absence of a properly particularised case merely compounded the original error into which the trial had fallen.
[6]The learned trial judge expressed repeated confusion about the Crown case as the trial progressed.
Even more seriously, some of the evidence which the learned trial judge permitted to be led in support of charged acts making up the first occasion was of so general a character as to be incapable of being used for that purpose.
Preliminary discussions and Crown opening
On 3 June 2010, prior to the jury being empanelled, the failure of the Crown to adequately particularise its case was raised by counsel for the applicant. On 8 June 2010, the Crown responded with a new opening and answers to various interrogatories in which it identified five separate occasions on which the twelve counts with which the applicant was charged were alleged to have occurred. On 9 June 2010, counsel for the applicant was served with a revised prosecution summary of opening which reduced that number to the fourfold division already discussed, but did not specify the chronological order in which those occasions occurred. From the material before this Court, it appears, rather surprisingly, that counsel for the defence made no complaint about these changes at that time, although concerns about the Crown case had been raised on 3 June 2010.
Despite supposedly revising its case, it was immediately clear from the Crown opening that the prosecution was avoiding particularising the charged acts. Doubtless that decision reflected the serious problems with much of the evidence which the Crown intended to lead, and aimed at providing the Crown with the maximum scope to adjust that case as the trial progressed. This was impermissible.[7] After some general preliminary remarks, the Crown began its description of each of the counts making up the presentment, with the statement that:
…about three or four months into the school year in 1978, the accused man, in the course of acting as a teacher, and within the classroom structure, directed the complainants to act out in a sexual manner entirely of his doing.
[7]‘Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.’: Whitehorn v The Queen (1983) 152 CLR 657, 663-664 (Deane J).
Prosecution counsel then discussed each of the twelve counts in the order in which they were listed on the presentment. That discussion was not arranged or particularised by, and did not make any reference to, the four-occasion division already agreed to by the prosecution. In fact, that fourfold division was not mentioned once in the Crown opening, nor were any of the counts grouped by occasion.
Crown counsel began by discussing the evidence to be led from LU (count 1), before saying that HV would describe ‘a particular time shortly after school had started’ when the applicant started to ‘teach them about sex education’. Crown counsel said that because HV, KW and GS were ‘giggling’ HV was ‘ordered’:
…into the corner of the room, that he told her to strip from the waist down and that she initially refused, and then he instructed her to put her leg up and strip her underwear off. And she said that she complied with his demands, and then what happened is he put a mirror on the corner of the desk and jammed a rubbish bin behind it to keep the mirror in place while she followed his request, and that he demanded that she open her legs and look at herself, and she’s forced to keep still for about ten minutes in that situation, and she says she recalls the boys in the class looking at her. She was inclined to close her legs but was told by the accused not to do that and to concentrate. And then after about ten minutes she’s allowed to go to her desk … Now, that thing that I have just told you about, [HV], is the precise allegation of what’s said to be count 4 in the document you’ve got.
No suggestion was made to the jury, at this point or later in the opening, that this act of exposure (count 4) formed part of a larger occasion also involving acts of genital exposure by other students.
After touching upon count 3 (GS being forced to kiss RP), the prosecutor briefly enumerated counts 6 to 12 in the order in which they appeared on the presentment. During this enumeration, no attempt was made to reconcile the conflicting evidence of each of the witnesses, or to particularise a base narrative in respect of each of the occasions involving multiple counts and multiple witnesses. For example, at no point in his opening, did prosecution counsel indicate to the jury that counts 6, 7, 8, 10, 11 and 12 formed a single event being the first occasion. In fact, his discussion appears to have been directed towards suggesting to the jury that these counts occurred on different occasions. Thus, for example, counts 6 and 7, which involved the simultaneous exposure and touching of MR’s penis by the applicant, were described as follows:
Count 6 involves [MR]. And what’s said there is that [MR] will tell you that he recalls that the boys in the class, including himself, were told to come up to the front of the classroom and expose their penises. He will tell you that he was half-naked in front of the class and that the accused pointed at him, and he recalls being very upset about the matter. And that following exposing his penis the accused man then held his penis up in one hand in front of the class. And what that’s said to constitute is the basis for count 6 that you have got on the document.
Now, I need to perhaps at this stage, take you to count 7. The circumstances of that are that the accused man told [MR] to show his penis to the rest of the class, and that included specifically [GS]. He will tell you that he recalls that she was there and that that was what happened. [MR] will tell you that from that incident he recalls that there was an incident where [GS] was made to expose herself in front of the class. I think I’ve already referred to you about count 2.
Any member of the jury listening to this statement would most likely understand that counts 6 and 7 occurred at separate times and constituted separate events. Furthermore, insofar as the final two sentences of the second paragraph set out above describe an act of exposure by GS, they do not indicate that count 2 formed part of the same occasion giving rise to count 7. Instead, it suggests that count 2 happened on a separate occasion and that MR was simply to give evidence in respect of it.
The prosecutor next took the jury to counts 8, 9, 10 and 11 of the presentment without indicating that these counts formed part of the first occasion. Finally, the prosecutor described count 12. Again this count was not related to the fourfold division around which the Crown had purported to construct its case:
Now, if I can come to count 12, [ZP]. Again he was asked to show his penis to the rest of the class. He will say that there were various other students that were present. He says that he and the others were made to stand exposed for about five to ten minutes, and that he recalls the accused man actually laughing at them at this stage. He will tell you that that happened three other times with him. So what’s said there is that count 12 is the first of those occasions and the three other times after that are again what are called uncharged acts, the contextual setting of it all.
At the outset of the trial, the Crown failed to establish with sufficient particularity the case it was bringing against the applicant, and the manner in which its evidence supported that case. The prosecutor failed to describe the Crown case at even the barest level of telling the jury that counts 2, 4, 6, 7, 8, 10, 11 and 12 all occurred on the same day and at the same time, or that counts 1 and 9 were supposed to also have happened on the same occasion.
In light of the unusual nature of this case, in which multiple witnesses were apparently testifying with respect to the same event, this failure unfairly prejudiced the applicant’s ability to conduct his defence. The events in question were over thirty years old. The Crown case was founded entirely upon the conflicting evidence of each of the complainants. The jury needed to assess and compare that evidence in order to be satisfied to the criminal standard that those events had in fact occurred. In particular, the evidence of no individual witness who gave evidence with respect to the first occasion was sufficient to encompass all of the charged acts alleged to have occurred on that occasion. It was necessary for the jury to reconcile and combine in some fashion the evidence of two or more complainants in order to make a finding of guilt on all eight counts said to have occurred on that date. The jury was left to conduct that process of reconciliation on its own, and it is impossible to know with any degree of certainty how that was done. Furthermore, without the benefit of an adequately particularised account of what was alleged to have happened on the first occasion, the jury was incapable of properly assessing the credibility of each witness as they gave evidence and the weight which ought to be accorded to their evidence.
The Crown evidence – the first occasion
Five complainants supposedly[8] gave evidence in support of the offences alleged to have occurred on the first occasion: HV, RP, KW, MR and ZP. GS did not give evidence with respect to the first occasion, despite count 2 describing an act of alleged exposure by her at that time. LU did not join the applicant’s class until the 1979 school year and therefore did not give evidence with respect to the first occasion. GR and OD gave evidence that they did not recall anything untoward happening whilst they were taught by the applicant during 1978.
[8]It is not clear that each complainant was describing the same event. Furthermore, as will be discussed later in these reasons, it is not clear that ZP and MR in fact described the ‘first occasion’ on which an act of exposure occurred.
HV stated that the first occasion occurred in the ‘middle of the year’ 1978. It began with the applicant showing a video in which two naked adults were having sexual intercourse. The video then followed the gestation of a foetus through to birth. It was shown on a television set on a trolley in the classroom. The applicant became angry with HV for laughing with KW and GS about the video. He sent her to sit in the chair next to his desk and pulled out a long rectangular mirror. The applicant then required HV to remove her underwear, raise her dress, spread her legs and look at her vagina in the mirror. After GS came over and asked her “Are you not going to this?,” the applicant instructed GS to “jump on the chair,” where she removed one leg from her trousers, pulled her underwear down and opened her legs whilst HV and the applicant stood beside her. GS sat like that for ‘a couple of minutes’ before the applicant walked away, the bell rang, and lunchtime began. Whilst these acts of exposure were occurring, the remainder of the class were sitting down watching the video.
RP stated that the large occasion occurred ‘about four months’ into 1978. The applicant went to the classroom door, locked it and began to talk about ‘sex and sex education’. He then made KW, ZP and RP, one after another, pull down their pants and measure their penises with a white measuring tape in front of the class. GS and HV were then made to ‘sit, open their legs and pull their pants down, and with their fingers open their vagina to see the size of their hole, in front of the mirror’ one after the other in front of the class.
KW did not recall any precursor to the large occasion. The children were sitting in a semi-circle in the horse-shoe of chairs at the front of their classroom, with the girls on one side, the boys on the other side, and the applicant in the middle. The applicant asked five of the boys in the class, KW, ZP, RP, MR and an unknown boy, to come to the front of the class and expose their penises ‘all together at the same time’ for ‘[i]t feels like a few seconds, just open up and we looked … then pulled the pants back up.’ The applicant apparently said “Boys, I want you to get up and show the girls your penis.” After that ‘[w]e sat down again – pulled our pants up, sat down, and Mr Veysey said to the girls, “Please go over to the corner.”’ The following girls were present: GS, HV, OD, LU, and an unknown girl. There was an ‘oblong-shaped’ mirror in the corner which was about one-to-one-and-a-half metres high and a foot wide. First GS, and then HV, ‘pulled down their underpants and they had dresses they up the dress, sat on the chair, opened their legs and the boys had to see where the hole was.’ GS ‘had to look in the mirror and put her finger and point to where it was in the mirror so we could see.’
KW was standing next to the mirror when HV exposed herself. There were other girls present who did not expose themselves. The applicant was standing behind KW and in front of the classroom door and HV was a metre away from that door which was halfway open or open ‘with a small gap’. Whilst HV was exposing herself, another teacher came and stood at the half-open door, and talked with the applicant. That teacher and the applicant ‘were fairly close to each other … they talked and then she shut the door or it was halfway shut again.’ The teacher looked ‘puzzled’ and like ‘she wasn’t sure what was going on.’ After HV had exposed herself, the children returned to their desks to continue learning mathematics. No student refused to expose themselves, and no student ‘took all their clothes off’. No student was touched by the applicant.
MR stated that the first occasion began when the applicant started talking about ‘producing babies and that sort of stuff.’ The applicant instructed RP who was ‘completely naked from head to toe’, and all of whose clothing was on the floor, to come to the front of the class. The applicant then instructed MR to also come to the front of the class and pull down his trousers and underwear and show his penis to the class. The applicant then showed MR’s penis to class by touching it for two-to-three minutes. MR then ‘got scared,’ pulled up his pants and returned to his seat. He stated that GS was ‘involved’ in this event, and was either half naked or completely naked. The applicant was supposedly ‘touching her and checking her out, taking a look’ and ‘touching her, turning her around, show[ing] the class.’ This was alleged to have happened for three or four minutes.
ZP did not remember when the first occasion occurred. He testified that on three or four occasions the students were all required to expose themselves. He described these occasions as a generality stating that on each occasion the event occurred in exactly the same way. ZP gave evidence that the only male students present were RP, MR and GR, and that there were also two or three girls present. ZP described being required to stand up, pull his pants and underwear down and expose his penis to the group. He gave evidence that the applicant was laughing whilst this was going on, and that he was required to expose himself for five to ten minutes. It appears from his evidence that this happened at the front of the class. The other boys were required to do the same thing, but he could recall in what order. He described the girls, who he could not identify also being required to expose themselves in the following terms: ‘The girls, I remember the girls took the dress up and the pants down, the same thing, that’s all.’ ZP thought that they exposed themselves after the boys.
It should be noted that whilst this summary is necessary for the purposes of my reasons, a review of the transcript indicates that it confers a coherence upon this evidence which it lacked at trial.
The applicant’s no case submission
On 28 June 2010, defence counsel made a no case submission primarily on the basis that the inconsistencies between the evidence of these five complainants in respect of the first occasion created a fatal ambiguity in the Crown case:
You’ve got a generalised allegation of exposure but nothing more than that.
In particular, this ambiguity unfairly prejudiced the applicant’s ability to conduct his defence:
….we’ve got the sorts of problems that severely hamper Mr Veysey in dealing with the surrounding circumstances. Not only that normally arise in these sorts of cases, but are exacerbated by the problem that we’ve got no particular occasion identified as being the occasion in some identifiable way that enables us to use that as a reference point against which we can cross-examine and against which Mr Veysey can meet the allegation.
Instead we have seven separate accounts that are vastly different in very fundamental ways and we’ve being forced to meet each and every one of them because each and every one of them might be incorporated into the version the jury ultimately used as a reference point to determine whether they’re satisfied beyond a reasonable doubt or not.
The learned trial judge rejected that submission in a ruling made the following day. In doing so his Honour appears to have made two fundamental errors.
First, for reasons that remain unclear, the learned trial judge appears to have proceeded upon an understanding that the Crown case had been properly particularised, when the Crown had, at no point in the trial, articulated a base narrative of what it said happened on the first occasion. The Crown case never evolved beyond a general allegation of group exposure on the ‘first occasion’ on which such exposure was incited in 1978.
Secondly, the learned trial judge proceeded upon an erroneous assumption that mere ‘first occasion’ particularisation was sufficient in this case. In his ruling, his Honour, relying on PPP v The Queen[9], stated:
[9][2010] VSCA 110 (‘PPP’).
In short, counts may be sufficiently identified where the evidence states an actual not notional, first occasion of sexual acts which occur more than once … As to the eight count occasion, the Crown case has been particularised as the first occasion on which the accused required sexual conduct of each of the complainants relevant to the eight counts and, in fact, it follows in this case, the first occasion on which he introduced such conduct to the class. In short, both boys and girls of the class were required to expose their genitalia to others. It also follows, as the Crown case, that the eight counts occurred on the same occasion … The question for me is whether the evidence, viewed at its most favourable, is capable of sustaining a proper verdict on the counts, based upon the Crown case particularisation.
Using the eight count occasion as a starting point, I find that it does.
On each count, the Crown is entitled to rely upon the evidence of each complainant individually, but also the relevant and admissible evidence of others. Accepting the truth and reliability of the complainants, several of them state the occasion to be the first for them and, in reality, for the class. It is important in this regard to bear in mind the context of the allegations. All twelve counts are said to have been committed by the accused as teacher of an approximate nine or ten child class ... Accepting a not unusual rate of attendance, the same or broadly the same students including the seven complainants, and the accused were consistently present in the relevant classroom over the approximate school period of 1978 and 1979. This bears upon the consideration and probability that the relevant complainants are talking of the first and the same occasion.
A number of the complainants state and describe that the other students were involved, for example, in exposing themselves.
There are other relevant similarities in the accounts. For example, the use of a mirror to expose or show the girls’ genitalia.
Ultimately, it is my view that, accepting the relevant complainants’ truth and reliability, the evidence of the eight count occasion allows a proper conclusion by the jury, that is, beyond reasonable doubt, that the complainants are speaking of the first and the same occasion on which the accused required them to expose themselves. MR gave evidence that he was also touched (count 6).
The inconsistencies between the complainants’ accounts are significant and, indeed, may be troubling for the jury. The jury may see them as very significantly detracting from the reliability of the evidence that any sexual conduct occurred, the central issue in the trial.
However, I do not see them as precluding, on a rational consideration of the evidence, a proper finding of guilt on the basis stated above. For example, the question of whether the passing of now 30 years has produced between the complainants inconsistent, self-focused childhood recollection of the same occasion rather than different occasions seems to me, in the circumstances here, a jury question.
In this ruling, his Honour erred. The application ought to have been granted. The bare first occasion method adopted by the Crown was neither necessary nor appropriate in the case below.
Use of the first occasion method
The adequate particularisation of an offence is a precondition for the fair trial of the accused charged with that offence. The degree of particularisation needed to satisfy that requirement of fairness will depend upon the nature and circumstances of the offence with which the accused is charged. There is no absolute rule that any one method is satisfactory in all cases. In PPP, Redlich JA summarised the purposes served by adequate particularisation:
The starting point is the proposition that for a trial according to law, the accused must be appraised not only of the offence with which they are charged, but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:
1. to enable the accused to exercise the right to object to evidence on the ground of relevance;
2. to permit the accused to know how the charge might be answered;
3. to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
4. to enable the trial judge to instruct the jury properly as to the law to be applied;
5. to ensure that there is unanimity of view by the jury as to a specific act by the accused;
6. in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;
7. to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
The first four purposes of particulars reflect the requirement that the accused must be afforded a fair trial. In the joint reasons of Gaudron and McHugh JJ in S v R they state that the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. If the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged. The rule against latent duplicity, informed by considerations of fairness, is therefore enforced to ensure that the accused knows the ‘particular act, matter or thing alleged as the foundation of the charge.’[10] [Footnotes excluded].
[10]At [42]-[43].
As noted, in cases involving repeated sexual abuse, it is usually possible adequately to particularise any charged acts arising out of that pattern of abuse by reference to the ‘first occasion’ on which each type of abuse occurred.
Commonly the alleged circumstances of the offence may be set against a background of repeated conduct with the same victim in the same circumstances over a protracted period of time. Experience has shown that commonly in such cases no distinguishing feature (additional to the occasion) of the offence charged can be provided.[11]
[11]Ibid.
This form of particularisation was first accepted as sufficient in Victoria in DPP v Lewis.[12] As Tadgell JA observed in that case:
In any case where it is sought to found a criminal charge on an incident in a series occurring over a period, there being neither a known date nor any unique physical feature to distinguish the incident from others in the series, there is an obvious difficulty in providing particulars. The difficulty is likely to be compounded when the period during which the series of incidents occurred is lengthy or long-past, or when the allegations are said to form a pattern of sexual abuse.[13]
[12][1997] 1 VR 391 (‘Lewis’).
[13]Ibid 394.
That case did not lay down a general proposition that ‘first occasion’ particularisation was appropriate in all cases involving charges of sexual offending.[14] In fact, as Redlich JA observed in PPP, the ‘first occasion’ method should only be used as an option of last resort where it is not possible to particularise a charged act by means of another distinguishing feature:
…the “first occasion” method of particularisation is usually relied upon by the Crown only when it cannot otherwise identify any other distinguishing feature to differentiate that act charged from the uncharged acts which occurred in the period covered by a “between dates” count. If evidence of distinguishing features were available, the counts could be particularised by reference to those distinguishing features. The Crown would have no need to rely upon a “first occasion” particular to avoid latent ambiguity.[15]
[14]Ibid 400. See also PPP [61].
[15]PPP v The Queen [70].
In cases in which the bare ‘first occasion’ method has been accepted, there is generally no confusion regarding what is alleged to have happened, simply a dispute about whether it has in fact happened. Thus, in Lewis, a typical count on the presentment was particularised using the first occasion method as follows:
Accused orders daughter behind shed in backyard. Accused places his hand in underpants, and touches her vagina and buttocks. Accused inserts his finger in vagina and anus.
This occurs frequently. However, this count relates to the first occasion of this type of sexual abuse.[16]
[16]Extracted at 393.
In the instant case, the nature of the large occasion and the manner in which the offences in question occurred was never defined by the Crown. The Crown adopted the ‘first occasion’ approach in order to ensure that it received the full benefit of each of the complainants’ competing accounts of what happened on the first occasion, without any diminution in the perceived reliability of those accounts which would have followed the adequate particularisation of that event.
In fact, use of the first occasion method of particularisation created an unusually high risk that the jury would be led into error because multiple complainants were supposedly giving evidence with respect to the same event. There are clear similarities in many of the elements of the different complainants’ evidence. A layperson reading the summaries set out above might well conclude that ‘something’ must have happened on the first occasion. However, it is insufficient for the purposes of the law that ‘something’ must have happened. That ‘something’ must be identified with sufficient particularity by the Crown to provide the defendant with the ability to conduct an adequate defence and to allow the court, in the event of a conviction, to identify the specific acts of which the accused has been convicted.
The applicant could not properly be convicted of simply causing ‘some sort of group exposure’ between 1 January 1978 and 31 December 1978. It was necessary for him to be charged and convicted of specified acts against specified complainants occurring on properly identified occasions. The applicant could only be convicted of those charged acts and no others.
In the absence of a properly particularised description of the first occasion that reconciled the evidence of each of the Crown witnesses at least at the minimal level of providing a description of that occasion which included all of the counts related to it, the applicant was irredeemably prejudiced by his inability to provide anything more than a general denial. The reality of this prejudice is evident in, for example, the prosecution cross examination. The Crown was permitted to put its allegations compendiously, and the applicant was reduced to being able to provide nothing more than a broad denial:
PROSECUTOR: I suggest to you Mr Veysey, that each of the complaints the complainants have described as being done at your direction, in fact occurred in the classroom. That’s so, isn’t it?
APPLICANT: ‘No, it isn’t, not at all.’
As Redlich JA observed in PPP, where:
the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged.[17]
[17]At [43].
This case falls foul of the same rule of fairness, though for a slightly different reason. Rather than being required to defend himself in respect of every one of several possible occasions to which the charge could relate, the applicant was required to defend himself with respect to every one of the several different versions of events said to be descriptive of the first occasion. Because of this, his defence was incapable of rising to more than the general denial expressed in cross-examination, and he was unable to properly test the evidence of each of the complainants who gave evidence against him. If, for example, the Crown had particularised the ‘first occasion’ by reference to the showing of a sex education video, as described by HV alone, then the applicant would have been able to challenge the prosecution case that the other complainants were reliable witnesses to the ‘first occasion’ because they had no recollection of this video. If the ‘first occasion’ had been particularised by reference to the use of a white measuring tape as described by RP then the same question of reliability would have been able to be raised about the evidence of the remaining complainants.
The learned trial judge erred in deciding upon the applicant’s no case submission because he regarded the inconsistencies between those complainants’ evidence as relevant solely to the credibility and reliability of each witness. Had the Crown adequately particularised its case, this would most likely have been correct. In the absence of adequate particularisation the approach misunderstood the problem faced by the applicant in being able to properly and fairly test the evidence of each complainant. Whilst it was true that the ability of each of the complainants to recall the events in question, and the internal consistency of their accounts, was relevant to their reliability and credibility, it was impossible for the jury to properly assess that reliability and credibility with respect of the large occasion without a base narrative which sought to reconcile, at least in a minimal fashion, those competing accounts.
Acting upon this misunderstanding, the learned trial judge mistakenly regarded this case as analogous to PPP in which the provision of a ‘specific particularity of the occasion charged’ would not have advanced the ability of the accused to answer the charges against him. In the instant case, such particularity was necessary, not only to ensure that the events described by each witness were in fact the same event, but also to allow the applicant to test the evidence, credibility and reliability of each witness. I am strengthened in this view by the comments of Mackenzie J in R v Baker; Ex-parte Attorney General:
Whether the requirement that an act charged be sufficiently particularised can be satisfied by defining a count as “the first occasion” when a series of essentially identical acts have occurred will depend on the circumstances …[W]here there has been a long delay, the period in which the particular offence is alleged to have occurred is lengthy and there are insufficient features in the evidence which would enable an accused person to identify a particular occasion upon which the act is alleged to have occurred an accused person will have no real means of testing the complainant’s allegations … In such a case, the absence of objective external facts, events or circumstances, which differentiate a particular count from other alleged offences of the same kind committed within the same period will ordinarily make it insufficient for the offence to be described as the “first occasion”.[18] [Emphasis added].
[18][2002] 1 Qd R 274, 277-8 (‘Baker’).
Furthermore, the shortcoming which ‘first occasion’ particularisation was constructed to avoid, namely, the inability of the Crown to differentiate between a charged act and a multiplicity of uncharged acts of the same type, was almost completely absent in this case. On the evidence provided in support of the Crown case taken as a whole, such a finite number of acts of exposure, charged and uncharged, were alleged to have occurred, that this inability was negligible, almost non-existent. This case was not one in which bare ‘first occasion’ particularisation was necessary.
Almost all of the complainants alleged that the applicant had caused them to expose their genitals on no more than one or two occasions. There was no suggestion that the continued iteration of the same offence over the two year period had rendered them unable to identify and describe the actual counts charged. Second, the evidence they gave in respect of that small number of occasions contained detailed, albeit conflicting accounts, of the circumstances of the offending capable of differentiating the acts charged from any uncharged acts alleged to have occurred during the 1978-1979 period.
KW and GS gave evidence that the applicant had incited an act of genital exposure by a student or students on only one occasion during the 1978-1979 period. MR stated that he could recall only one occasion on which students were required to expose themselves in front of the class, although he later confused this by alluding vaguely to a second incident involving only GS. RP testified in his evidence in chief that he was required to remove his clothes three times in 1978, but conceded under cross examination that an act of group exposure had in fact only occurred once that year, and once in 1979. HV stated that the applicant procured or incited only two acts of exposure by his students. Each of these complainants described in varying, but identifiable, degrees of detail, the circumstances of the offending on those occasions.
Only two complainants gave evidence that the applicant had procured or incited acts of genital exposure on more than two occasions. ZP testified that the students were all required to expose their genitals on three or four occasions, but due to his ‘poor’ memory could not specify when any of those occasions, including the first occasion, occurred. He was only able to describe these occasions as a generality, giving evidence that on each occasion the circumstances of the offending were exactly the same. LU, vaguely described being asked to take all or some of her clothes off ‘a lot’, possibly one hundred times, in the year 1979. Acquittal was directed on the single charge which involved this complainant (count 1). The Crown never suggested that her allegation that acts of exposure occurred an hundred times during 1979 was correct.
This case did not involve an allegation that the applicant committed a series of acts unable to be particularised by reason of the absence of external facts, events or circumstances, by which to differentiate a particular count from other alleged offences of the same kind. It involved a finite number of acts spread over a long period of time many years ago about which a multiplicity of contradictory evidence has been given. Where multiple witnesses give different evidence in respect to the same occasion, none of which is capable in and of itself of encapsulating all of the charges arising out that alleged occasion, then it is not possible to particularise those offences by the use of a bare ‘first occasion’ method, or to simply advance the conflicting evidence of those witnesses as an aggregate. In such a case, it is necessary for the Crown to provide a base narrative which reconciles those accounts in some fashion, at least to the extent of encapsulating all of the counts charged. In the absence of such a base narrative, it was impossible for the jury to assess and reconcile the contradictory and incomplete evidence given by each of the complainants, or for the accused to conduct an effective defence because there was no way to identify with specificity what was alleged to have occurred on the large occasion.
Furthermore, even to summarise the evidence of the five complainants who gave evidence with respect to the first occasion, as I did above, or to describe it as conflicting evidence in this manner presupposes that each of those complainants was in fact describing the same event. Insofar as the first occasion was described differently by each complainant, the words ‘first occasion’ when used in the instant case lost any capacity to particularise the charged acts. They were incapable of reconciling the conflicting evidence led in support of the Crown case. The exact nature of the acts of alleged incitement and procurement making up the first occasion were never clearly disclosed to the applicant. By reason of this ambiguity, the applicant’s trial miscarried and his conviction in respect of each of these counts must be quashed. In saying that, I should not be taken as suggesting that the evidence led by the Crown may not have been capable of founding a conviction in respect of the counts making up the first occasion had that occasion been adequately particularised.
The learned trial judge’s directions with respect of each witness
To the extent that it was possible to divine a prosecution case, that case gradually ‘fell out’ of the evidence given by each of the complainants, and was then ‘massaged’ into shape in a failed attempt to provide adequate particulars to the applicant. The trial judge repeatedly expressed confusion about the exact nature of that case, but assisted the Crown in adopting this unsatisfactory and almost entirely ad hoc approach by deciding early in the trial to direct the jury as to which counts each witness’s evidence related to after they had been dismissed from the jury box. Self-evidently, these directions presupposed that such evidence did in fact describe the charged act(s) to which it was subsequently related.
Presumably, his Honour adopted this strategy to avoid the jury confusing charged and uncharged acts. However, in the circumstances, such directions compounded the unfairness of the trial. In fact, counsel for the Crown utilised the false coherence conferred on the Crown case by this type of direction to avoid giving adequate particulars. For example, in his closing address, counsel stated:
I don’t want to dwell on this because you’ve already got a pretty fair idea, I suspect of what it is that the Crown has to say about this case, because you will remember that very helpfully to you at the end of each of the complainant’s evidence, his Honour identified what the evidence related to in terms of the counts.
The evidence of MR has already been discussed and provides a suitable example of this methodology and its attendant risks. In his evidence in chief, this complainant had asserted that RP and himself were brought to the front of the class, that RP was completely naked at this time, and that GS was ‘involved’ in this occasion. On the Crown case, this was supposed to describe the first occasion. However, MR then went on to describe two incidents in which GS was naked without making clear how those incidents related to counts 6 and 7, or the first occasion. MR’s evidence regarding GS was incredibly confused, and internally contradictory. He began by stating that he saw GS naked twice. On the first occasion she was supposed to be fully naked, and on the second occasion she was supposed to be ‘half naked’ on a chair. On the first occasion, GS was required ‘to show her vagina to the class … it was about producing babies.’ The applicant was supposedly ‘touching her and checking her out, taking a look’ and ‘touching her, turning her around, show[ing] the class.’ This was supposed to have happened for three or four minutes. MR did not know who was present at the time. Despite his earlier assertion that what he was describing was the first event on which GS had been asked to expose herself, he then stated that he could not remember whether this was in fact the first or second time.
Despite his evidence in chief, under cross examination MR admitted that he could not remember if RP was naked on the same occasion on which he had been required to expose himself (on the Crown case the first occasion). Nor could he remember whether GS was naked on that occasion, or whether either of the two incidents on which he had earlier testified that she was naked occurred on that occasion or on an occasion when RP was also naked. His evidence regarding RP reduced to an admission that all he had was a picture in his mind of RP being naked in front of the class.
Concerned by the obvious flaws in this witness’s evidence, the learned trial judge discussed with counsel for both parties, but particularly the Crown, how that evidence related to the Crown case. The following exchange took place:
HIS HONOUR: I am presuming – probably not a very safe presumption – I note that the event in which [GS] is said to have been half naked in front of the class is in his first statement, [MR]’s first statement. Is that the description on the Crown case count 2?
PROSECUTOR: You see, there has been a variation in this position between the committal and now as to the timing of those events and that is why the opening was in a particular way. It can’t be maintained in view of what he’s now said your Honour as the evidence has fallen.
HIS HOUNOUR: Yes. There is a difference between what the Crown case is and where it’s gone in evidence.
PROSECUTOR: I know that, Your Honour.
HIS HONOUR: I’m really seeking your assistance. Which of the two events…
PROSECUTOR: Your Honour, I find this very difficult to think that through on the run as things have happened, and I’m not really able to greatly assist at the moment. I will have to consider what the overall evidence is before I come to a concluded view on that. The evidence has changed in some aspects, your Honour, from that which we had at the start of this case.
HIS HONOUR: Should I say this? One of the two events is said by the Crown to be count 2 and they will receive further assistance as to that later.
PROSECUTOR: That might be sufficient, Your Honour.
The jury were then directed in the following terms on the evidence provided by MR:
…consistent with what I’ve been doing as to each witness, on the Crown case, or better put, the Crown case is this. That [MR]’s evidence relates to that broad incident, for want of a better term, which on the Crown case encompasses counts 2, 4, 6, 7, 8, 10, 11 and 12, but more particularly the Crown relies on [MR]’s evidence or description of the event that happened to him as related to, or being count 6 and 7 – that is, exposing himself or being half naked and then being touched relies on it particularly as to count 8 involving [RP], and as to count 2 – involving [GS]. I need to say that, that it is the Crown case, that one of the two incidents he describes involving [GS], on one occasion being half naked and on another occasion being wholly naked, both being separate times. One of those on the Crown case is count 2. You will receive further assistance as to what evidence particularly relates to count 2 at a later time. That must mean that the other event is an event that is not charged in the presentment.
Two important points must be born in mind about the trial judge’s decision to relate the Crown evidence to the Crown case after each witness. First, as already noted, the Crown had not at this stage, and would not at any stage of the trial advance any sort of base narrative about what was purported to have occurred on the first occasion. The learned trial judge’s directions took place in a vacuum. The jury were not given the opportunity to assess the evidence of each witness against what was alleged to have occurred. Instead, the learned trial judge assisted the Crown to adopt an approach in which the jury were left to their own devices to decide how any of the five contradictory versions provided by each of the witnesses who gave evidence about the first occasion could be reconciled.
Secondly, the ‘further assistance’ to which the learned trial judge continually referred never materialised. It is not clear what his Honour meant by this. Presumably, it meant that at some point in the future the Crown would be required to make an election as to what it said had actually occurred on the first occasion, at which point the conflicting evidence of each witness would be related to that narrative. When this further assistance never materialised, the applicant was placed in the unfortunate position of having to cross-examine each witness about an event whose nature and surrounding circumstances were never defined.
The unfairness consequent upon that approach is well illustrated by the manner in which MR’s evidence was treated. As the discussion held between counsel and the bench illustrates, the Crown had no case theory into which the evidence of MR was being integrated. Nevertheless, that evidence was held to be descriptive of the first occasion despite the fact that MR could not recall whether he, RP and GS were all naked or partially naked at the same time or when that event occurred.
In another context, the Full Court of the Supreme Court of South Australia has observed that:
…there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views. [Footnotes omitted.]
In the absence of a base narrative advanced by the Crown about what actually happened on the first occasion, these directions compelled the jury to regard the tenuous relationship between the Crown case and the inconsistent and contradictory evidence advanced in support of it as already established. The fact that the learned trial judge directed the jury in a manner which presupposed that the evidence given by each complainant related to and described the same occasion, gave the Crown case a judicially approved structure and coherence which it did not deserve and would otherwise have lacked. In light of the unusual circumstances of this case and the amorphous relationship between the evidence led by the Crown and the case it advanced, such direction could not be given without impermissibly blurring into a form of advocacy. Further, by adopting this approach, the learned trial judge effectively allowed the Crown to avoid the need to adequately particularise its case. In doing so his Honour erred and the trial fundamentally miscarried.
Evidence of ZP and MR
An additional problem attaches to the evidence of ZP and MR. Following, this Court’s decision in R v DWB[19] and R v Osbourne,[20] their evidence was incapable of being particularised by reference to the ‘first occasion’ method. It could not, and should not, have been treated as descriptive of the first occasion, because it was impossible to distinguish between the occasions described by these complainants, or be satisfied that they were talking about the first occasion, as described by themselves or others, when giving evidence.[21] Unfortunately, counsel did not draw this to the attention of the learned trial judge.
[19](2008) 20 VR 112.
[20][2009] VSCA 88.
[21]Ibid [6]-[10].
ZP described three or four occasions of exposure as a generality stating that on each occasion the event occurred in exactly the same way and admitted that he could not remember when the first occasion occurred. Any ‘first occasion’ in respect of such evidence was notional rather than actual. MR admitted under cross examination that he could not remember whether RP was naked at the same time as he was required to expose himself and his penis was touched, or whether GS was naked on that occasion. He stated that he simply had a picture in his mind of RP being naked in front of the class. He could not identify with particularity the occasion on which GS was supposed to be naked, or distinguish between the two occasions on which he said he saw her naked. After he gave evidence, the learned trial judge expressed concern at the failure of the complainants to attach their evidence to the events set out in the Crown opening, but failed to make any ruling by reason of that concern.
Rather than merely expressing concern, the learned trial judge ought to have directed the jury that ZP and MR’s evidence could only be treated as descriptive of uncharged acts, and could not be used to support a finding of guilt in respect of any of the counts making up the large occasion.
The Crown closing
For completeness, I should also note before proceeding, that the Crown closing suffered from the same deficiency as its opening. It entirely failed to particularise, at even a minimal level of detail, what was alleged to have happened on the first occasion:
What the Crown says is that there are, in effect, four groups of events that have occurred, but the main group, the main event, if you like, is with counts 2, involving [GS] that [HV] talks of, the exposure. Count 4, where [HV] says that she was directed to expose herself in the way that she has described … count 7 is [MR] exposing his penis at the direction of the accused. Count 8, [RP] exposing himself at the direction of the accused. Counts 10 and 11 are [KW] exposing himself in the presence, in the first count 10, towards [GS] and in count 11 towards [HV]. Then [ZP] told you about what happened when he first had to expose himself.
What you should be told about that event is that you need to be looking at the evidence of each of those counts separately and considering what evidence relates to them. Also look for the fact that you’ll be satisfied that the event under consideration, the count under consideration, was the first time that that event had occurred, that that count had occurred and that the events occurred together in that one session. You will understand immediately but that’s not an easy task, because for instance, [GS] gives very little – she gives the least evidence about what else happened.
And at the other end of the scale you have [KW] describing how it all unfolded with both the girls and the boys and you have variations in between that from the other witnesses.
[HV] for instance referring particularly about her and [GS] and again, what I say to you is perhaps being repetitive, people remember best what happened to themselves and less well what happened to others and you might think that explains a lot of that whole episode.
That’s one event. [Emphasis added]
Before proceeding, I further note that the Crown comments regarding the evidence of GS were apt to lead the jury into error. GS gave no evidence regarding the first occasion, and her description of an unrelated act of exposure by HV consequent upon her failure to perform ‘masturbation homework’ was held to relate to an uncharged act. The risk that the jury confused the evidence relating to that uncharged act and count 4, the only count upon which the applicant was found guilty by unanimous verdict, would in itself be sufficient to render that count unsafe.
The Crown closing does not describe the first occasion in even the barest detail, simply enumerating a series of exposures as they are listed as charges on the presentment. The closing operated as an invitation to the jury to reconcile, in its own fashion, the contradictory evidence of each of the complainants. In the absence of a base narrative provided by the Crown, it is impossible to know how that process of reconciliation occurred. For example, it is impossible for either the applicant or this Court to know what behaviour supposedly constituted count 7, the act of being a party to the commission of an act of gross indecency by MR in the presence of GS.
Both GS and HV gave evidence that no act of exposure involving MR occurred in the years 1978 and 1979, even though exposure in the presence of GS was necessary for a finding of guilt on the charge. In evidence that was erroneously allowed to be used as descriptive of the first occasion, MR had testified that on an unspecified occasion or occasions he, RP and GS were all required to expose themselves at the front of the classroom, and that the applicant had touched his penis for two to three minutes. In contrast, on the Crown case, RP described the supposed first occasion as involving KW, ZP and himself being required, in that order, to come to the front of the class, pull down their pants and measure their penises with a white measuring tape in front of GS, HV and LU,[22] but made no mention of MR being required to expose himself in any way.
[22]After a question from Counsel for the Crown he accepted that LU could not have been there because she only arrived in the class in 1979.
The only complainants to mention MR being present during the supposed first occasion, other than MR himself, were KW and ZP. However, KW’s version of that event refers to a teacher coming into the classroom whilst HV was exposing herself, a circumstance which is not described by any other complainant. Even were ZP’s evidence acceptable as going to the first occasion, he stated that the only male students present were RP, MR and GR, not KW. GR and OD denied anything of a sexual nature happening whilst they were students in the applicant’s class. In the absence of an adequately particularised base narrative, it is impossible to know whose evidence was accepted with respect to count 7, and the first occasion more generally, or what it was that the jury concluded the applicant had done on that date to constitute that count.
The second act of exposure by HV (count 5)
I turn now to the second act of exposure allegedly incited or procured by the applicant from HV three days after the large occasion in 1978 (count 5). The count was described in the Crown closing address as follows:
The next count, count 5, is where [HV] says, well, specifically after that first big event, I was made to expose myself again in the class about three days later. Again, that’s able to be specifically charged because of that time framework that she puts to it in relation to when the earlier count had happened. It’s not just an uncharged act that you’ve heard about with some of the other events that are said to have occurred in the classroom. [Emphasis added].
Similarly, in his charge to the jury, the learned trial judge described this event occurring three days after the first occasion. Insofar as the Crown had particularised count 5 as occurring three days after the first occasion, the jury could only bring back a verdict of guilt on this count if it was satisfied that the act in respect of which it was convicting the applicant was in fact the subject of count 5, i.e. an act which occurred about three days after the first occasion.
HV was the only witness who gave evidence in respect of this occasion. The appeal must also be allowed and the conviction quashed in respect of this count because their was no rational basis on which the jury could have concluded that this event occurred in 1978 rather than 1979. The evidence given by this witness was insufficient to found a finding of guilt and an acquittal ought to have been directed in respect of it.
In her evidence in chief, HV had unequivocally stated that the first event in which she was required to expose herself had occurred in the middle of the 1978 school year, and had identified that date by reference to a holiday she had taken with her family in the Seychelles the previous year, and the fact that she had started as a student that year after previously going to a hearing school. This was the Crown case throughout the trial. However, under cross examination the following exchange took place:
DEFENCE COUNSEL: When you made your statement to the police?
HV: Yes.
DEFENCE COUNSEL: You said that “The first time anything bad had happened was shortly after we started school.”?
HV: Yes.
DEFENCE COUNSEL: Was that correct?
HV: Yes.
DEFENCE COUNSEL: Was that accurate?
HV: (Indistinct response).
DEFENCE COUNSEL: So that would be in 1978?
HV: That’s it. Middle of the year seventy eight that happened when all these…
DEFENCE COUNSEL: [HV], if you started school in….?
HV: I started school in February seventy eight.
DEFENCE COUNSEL: Yes, and if the first event occurred shortly after you started school, it must have been shortly after February of 1978?
HV: Yes, yes, yes.
DEFENCE COUNSEL: The next event occurred three days later?
HV: Yes, yes, yes.
DEFENCE COUNSEL: That must have been in 1978 as well, is that right?
HV: One’s seventy eight, one time seventy eight, shortly and then I went on holiday in Gold Coast seventy nine, it happened again, not twice in seventy eight. One in seventy nine, one in seventy eight.
DEFENCE COUNSEL: Are you sure about that [HV]?
HV: Yes.
DEFENCE COUNSEL: And you couldn’t possibly be mistaken?
HV: No.
DEFENCE COUNSEL: When you made your statement to the police?
HV: Yes.
DEFENCE COUNSEL: You told them as to the first time that it occurred “shortly after we started school”, didn’t you?
HV: Seventy eight.
DEFENCE COUNSEL: Yes?
HV: I start school shortly, yes, it happened there, seventy eight, first time.
DEFENCE COUNSEL: All right, I will stop you there if I may?
HV: Okay.
DEFENCE COUNSEL: When you referred to the next time in your statement to the police, you said – paragraph 19, p. 328: “I recall the next time about three days later”?
HV: Three days later it happened, yes.
DEFENCE COUNSEL: The jury may not have heard that answer. What is the answer? Perhaps it could be interpreted.
HV: It happened, yes.
DEFENCE COUNSEL: If it happened, if the second incident happened…?
HV: Yes, it happened.
DEFENCE COUNSEL: About three days later….?
HV: Yes.
DEFENCE COUNSEL: That would make it still in 1978, wouldn’t it?
HV: Yes, and seventy nine?
HIS HONOUR: I didn’t….
INTERPRETER: Seventy eight and seventy nine.
At this point in the trial, only LU and RP had given evidence. RP had given evidence about two occasions, the first occurring ‘about four months’ into 1978, which was directed to form a description of the first occasion and go to count 8 in respect of himself, and another act of group exposure occurring in 1979 ‘in the winter time’ which was supposed to describe the fourth occasion. LU had also given evidence in respect of the first act of ‘group exposure’ in 1979, count 1 in respect of herself, which on the original Crown case was supposed to have occurred at the same time as count 9.[23] Therefore, at this point, on the Crown case and by reference to the evidence that they had heard, the jury were only aware of one act of group exposure in 1979. Understandably confused by HV’s evidence they asked the following question, ‘Could we ask if there was more than one incident in 1979?’
[23]Due to the fact that she described an act of breast rather than genital exposure occurring on this ‘first occasion’ in 1979, an acquittal was ultimately directed on count 1
In the absence of the jury the following discussion took place:
HIS HONOUR: …I see the Crown case as being that in terms of counts on the presentment relating to this witness exposing herself , either shortly after the start of school in 1978 or in the middle of the year…
PROSECUTOR: And then the second on three days later.
HIS HONOUR: I will get to it, yes, that’s right. There was count 4 and then three days after that there was count 5.
PROSECUTOR: Yes.
HIS HONOUR: It follows from that, I would have thought, that the Crown case does not encompass that there was any relevant incident in 1979? Is that correct?
PROSECUTOR: That is my understanding, your Honour. I perceive that the witness is coming to the point where there may well be an uncharged act in 1979 from the way the witness has answered my learned friend’s questions.
HIS HONOUR: Yes.
After more discussion, it was agreed amongst counsel to answer the jury’s question by ‘simply rais[ing] a question in the presence of the jury to counsel and tell[ing] them that the jury must wait and see what the evidence finally is.’
Accordingly, the learned trial judge directed the jury in the following terms:
The Crown case is that this witness at least gives evidence about count 4, count 5 and count 2. The Crown case is that there were two incidents, either shortly or after the middle of 1978. That doesn’t matter much to what I’m saying now. It may matter to other things. The first incident then involving the exposure of both girls, her and her friend, [GS]. Then three days later, therefore you will think in 1978 also, the exposure of her. And she does speak of [GS], but that is not a charged count so let’s just leave that aside for the moment. In chief she has given up that evidence containing it – you would think as a matter of logical deduction to 1978.
However, the evidence is not complete, and you should wait for the evidence of this witness to be finished.
After this, HV was not pressed on when count 5 was supposed to have occurred. To the extent that it was raised again, she implied that it occurred in 1979, not three days after the first event in 1978.[24]
[24]It was accepted by all parties that LU did not join the applicant’s class until 1979.
DEFENCE COUNSEL: Was [LU] present in your class in 1978?
HV: No.
DEFENCE COUNSEL: Are you sure about that?
HV: Yes.
DEFENCE COUNSEL: And you couldn’t be mistaken?
HV: Yes, I know, I’m sure.
DEFENCE COUNSEL: Was she present when the first incident occurred?
HV: In 1978?
DEFENCE COUNSEL: Let’s forget about years for the moment [HV]. Was [LU] present for the first incident?
HV: No, 1979, she was there.
DEFENCE COUNSEL: Was [LU] present for the second incident?
HV: Yes.
….
DEFENCE COUNSEL: …she was there for the second incident, is that right? Is that what you remember?
HV: Yes.
Again, the problems posed by the ambiguity of the complainant’s evidence regarding when the second occasion during which count 5 occurred prompted discussion in the absence of the jury:
HIS HONOUR: I think it is appropriate to look forward on this last question to some extent, although we must wait for the final evidentiary picture. It seems to me that she may be saying that the first incident happened in 1978, may now be saying that the first incident happened in 1978, and the second in 1979 rather than referring to an uncharged act, although I don’t discount that.
Does that mean [Prosecutor], if that is so, does that mean this, that the Crown case is there were two incidents during the period 1978 and 1979, counts 4 and 5, and then the jury must make an assessment of the credibility and reliability of the witness’s evidence. Bearing in mind that she says in evidence in chief three days apart, 1978, and may be saying that the second incident in cross-examination or re-examination is 1979. I mean that seems to me, if it falls that way, that seems to me what the jury should be told, but it’s not a concluded view. Do you disagree or agree with that?
PROSECUTOR: I am unclear what she is saying about timing, your Honour.
Ultimately, the learned trial judge failed to resolve this ambiguity with the following unsatisfactory direction:
HIS HONOUR: Before I send you away, not just arising out of your earlier question, but consistent with what I’ve been doing in attempting to assist you as to what each witness’s evidence is related to the counts alleged, as opposed to other matters. It seems to me that in relation to this witness’s evidence, the Crown case is that there were two incidents relevant to the counts on the presentment that occurred, the Crown alleges to you in the period alleged in the presentment, 1978 to 1979 roughly described.
The first instance is said to encompass count 4, the exposure of the witness to the mirror in the corner, and count 2, the exposure of her classmate, [GS], said to have occurred in that corner.
The second incident, the one described in evidence-in-chief as occurring three days after the first, is said by the Crown to relate to the allegation of count 5 of the presentment. It may be of assistance to add this, but in evidence-in-chief, and in parts of cross-examination, the witness stated both incidents to occur in 1978 effectively, however, she gave evidence in cross-examination that you might regard as different to that and that led you to your question no doubt earlier today. It is for you to make your assessment of that.
She also gave evidence in respect of the second incident, the one that on a number of occasions she described as occurring three days after the first, count 5 as it relates to the alleged behaviour against her.
It was not simply the case that the witness gave conflicting evidence about when the second incident occurred. It is to be noted on this point that the learned trial judge did not specify the nature of this conflict, but made a very general statement that ‘she gave evidence in cross-examination that you might regard as different to’ the evidence she gave that the second incident occurred three days after the first occasion. Nor did the trial judge direct the jury that in order to be satisfied beyond reasonable doubt that count 5 had occurred, the jury was required to be satisfied both that the applicant had incited an act of gross indecency by HV in his presence, and that this act of gross indecency was the act the subject of the charged count, i.e. that it had occurred about three days after the first occasion.
This error, and the risk that it unacceptably led the jury into, was compounded by both the learned trial judge’s eventual charge to the jury and, in particular, his summing up of the evidence of this witness. It should also be noted on this point, that, by the end of the trial, both the Crown and the learned trial judge appear to have ceased to talk of the first occasion occurring in 1978 at all, despite this being integral to the Crown case because count 9 was supposed to constitute the ‘first occasion’ of exposure in 1979. Whilst the learned trial judge made some mention of the confusion surrounding when count 5 was supposed to have occurred in his summing up, he did so in a highly ambiguous fashion, and made no mention of the inconsistency consequent on the complainant’s evidence that LU was present during that second incident:
HIS HONOUR: Now, part of this is my interpretation, but it may not be of controversy. She seemed to be saying that at this stage of her evidence that the second incident occurred in 1979; that is, count 5.
This summary distorted what had actually occurred. The evidence provided by this complainant was clearly ambiguous as to when the count 5 incident had occurred. It was integral to the Crown case that it had occurred in 1978, though the Crown singularly failed to mention this in its closing address. Two points arise from this. First, the jury’s verdict on count 5 is necessarily unsafe and unsatisfactory, insofar as it is impossible that they could have been satisfied beyond a reasonable doubt that the count 5 event occurred three days after the first occasion or in 1978 at all. There was no rational basis on which one description could be preferred over the other. Second, the applicant was denied the ability to test the complainant’s evidence by reference to the different circumstances prevailing in 1978 and 1979 in the applicant’s class, for example, the fact that some students had left the class and other students such as LU had started.
The jury should have been directed to acquit the applicant on this count, and consequently, this appeal should also be allowed insofar it concerns count 5.
The third occasion (count 9)
RP was the only witness who gave evidence in respect of the fourth occasion after the evidence of LU was held to relate to a hitherto unknown uncharged act. He described that occasion as the first and only occasion of genital exposure that occurred in 1979, and described it in some detail. RP gave evidence that the incident occurred ‘in winter time’ and began when ‘the teacher tried to make KW pull his pants down and he refused’ at which point Mr Veysey threatened to hit him with a ruler. It was preceded by the applicant drawing a penis and a vagina on the board and describing the act of procreation. KW, ZP and RP were then required to pull their pants down, expose themselves to the class, and measure their penises. The applicant then:
asked the girls to pull their pants down and sit on the chair, open their legs and show their vagina in front of us. Plus there was a mirror … The mirror was in front of their legs, the vagina, and they measured to see how big the hole was one at a time.
This act of exposure began with HV, followed by GS, and finished with LU.
Although, it was possible to identify some problems with the vagueness of this witness’s evidence, and the differences between his evidence at the committal and trial stages, no fault can be found with this count either in its degree of particularisation or the capacity of the jury to relate that particularisation to the evidence given in respect to it. However, insofar as the applicant’s trial miscarried in respect of the remaining counts on the presentment for which he was found guilty, this application should also succeed in respect of count 9. It is highly likely that the jury’s verdicts in respect of the other counts formed part of its chain of reasoning that led to a finding of guilt on this count. To the extent that such verdicts were not open to the jury on the case presented to it, the applicant’s conviction with respect to count 9 must also be quashed.
Conclusion
Five primary reasons caused the trial below to miscarry.
First, the Crown failed to adequately particularise the first occasion at any point during the trial. The applicant was never appraised of the particulars of the acts constituting the offences said to have occurred on that occasion. He faced a moving and uncertain target. Inevitably, the applicant was thereby denied the ability to effectively conduct his defence. Furthermore, the acts said to constitute the offences making up the first occasion could not be identified with sufficient certainty by the jury for the purposes of deciding upon guilt or innocence.
Secondly, the jury ought to have been directed that both MR and ZP’s evidence could not be used to support a finding of guilt with respect to the first occasion, and could only be treated as descriptive of uncharged acts.
Thirdly, the latent ambiguity which flowed from the conflicting evidence given by each of the complainants with respect to the first occasion could not be cured by simply defining that occasion as the first occasion on which the applicant caused his students to expose their genitals without detailing the circumstances of that offending or the manner in which such exposure had taken place. The complainants only gave evidence that they were required to expose their genitals once or twice during the two year period covered by 1 January 1978 and 31 December 1979. Those alleged events happened over thirty years ago. In my view, bare ‘first occasion’ particularisation of the first occasion was not necessary and denied the applicant any real means of testing the complainants’ evidence.
Fourthly, early on in the trial, the learned trial judge decided to direct the jury as to the counts to which the evidence of each complainant related after that complainant had given evidence. In my view, such a direction presupposed that the evidence led by the Crown from each complainant was in fact referrable to the acts charged. Without adequate particularisation of the first occasion, that presupposition could not be made by the learned trial judge. Therefore, those directions compounded the unfairness to which the applicant was already subjected, and risked conferring an unwarranted coherence and quality of judicial approval on the evidence led in support of the Crown case.
Fifthly, the trial judge ought to have directed an acquittal with respect to count 5. It was necessary for the jury to find beyond reasonable doubt that the act in question occurred and that it occurred about three days after the first occasion. At trial the only complainant who gave evidence with respect to that count, HV, testified that it occurred both three days after the large occasion and in 1979. There was no rational basis on which the jury could have been satisfied beyond a reasonable doubt that this event occurred when the Crown said that it did, and that the evidence given in respect of it in fact related to the act charged as count 5 on the presentment.
For these reasons, each of the grounds of appeal are made out. I would order that the application be granted, the appeal allowed and the applicant’s conviction on all the counts be quashed.
I would order a retrial held in respect of counts 2, 4, 7, 8, 9, 10, 11 and 12, but not in respect of count 5.
WEINBERG JA:
I agree, for the reasons given by the Chief Justice, that this appeal should be allowed.
TATE JA:
I agree with the Chief Justice.
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