Wade (a pseudonym) v The Queen
[2019] VSCA 168
•31 July 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0155
| JAMES WADE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 July 2019 |
| DATE OF JUDGMENT: | 31 July 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 168 |
| JUDGMENT APPEALED FROM: | [2018] VCC 691 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Gross indecency with a person under 16 – Possession of child pornography – Whether substantial miscarriage of justice occurred because failure of trial judge to give unreliability warning to jury – Delay in prosecuting applicant – Complainant’s age at time of alleged offending – Intervening mental illness – Leave to appeal granted – Appeal allowed – Retrial ordered – Hudson v The Queen [2017] VSCA 122 considered – Jury Directions Act 2015 s 32.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Dr M FitzGerald | Mr J Taaffe, Doogue + George |
| For the Respondent | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
After a jury trial on the first indictment, the applicant was convicted of two charges of indecent assault and one charge of gross indecency with a person under 16. The applicant was acquitted by direction of two counts of sexual penetration of a child. On a separate indictment, the applicant pleaded guilty to one charge of possession of child pornography. The table below sets out the sentences imposed, the maximum sentences available, the cumulation of sentences, the total effective sentence and the non-parole period.
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment G13538462.2 | ||||
| 1. | Indecent assault Crimes Act 1958 | 5 years’ imprisonment | 20 months’ imprisonment | 8 months’ imprisonment |
| 2. | Gross indecency with a person under 16 Crimes Act 1958 | 3 years’ imprisonment | 15 months’ imprisonment | 6 months’ imprisonment |
| 5. | Indecent assault Crimes Act 1958 | 5 years’ imprisonment | 2 years’ imprisonment | Base |
| Indictment G13538462.3 | ||||
| 1. | Possession of child pornography Crimes Act 1958 | 5 years’ imprisonment | 21 months’ imprisonment | 10 months’ imprisonment |
| Total effective sentence: | 4 years’ imprisonment | |||
| Non-parole period: | 2 years and 6 months’ imprisonment | |||
| Pre-sentence detention: | 11 days | |||
| Section 6AAA statement (only in relation to indictment G13538462.3): 2 years and 9 months’ imprisonment | ||||
| Other relevant orders: Sentenced as a serious sexual offender on charge 2 pursuant to s 6F of the Sentencing Act 1991 and life reporting under the Sex Offender Registration Act 2004. | ||||
The offending on the first indictment was alleged to have occurred between 1987 and 1993. The complainant, who is the applicant’s nephew, was aged between six and 13 years during the offending period. There is one ground of appeal, which reads:
Ground 1 — A substantial miscarriage of justice occurred because of the failure of the trial judge to direct the jury pursuant to s 32 of the Jury Directions Act 2015 (JDA) that the complainant’s evidence was of a kind that may be unreliable.
In substance, the applicant sought an unreliability warning on the basis of a combination of the following undisputed factors:
(a) the delay between the alleged offending and the complainant’s evidence was in the range of 25 to 30 years;
(b) mental illness suffered by the complainant in the intervening period; and
(c) the complainant’s evidence about ‘his own thought processes’ and how he made notes to clarify certain facts before making his statement to police.
His Honour ruled that there were good reasons for not giving the warning sought. It is that refusal which is the subject of this appeal.
Background
It is necessary to set out a short factual background to this appeal. The complainant stated that he was born on 14 June 1981. When the complainant was around six or seven years of age, the applicant would take him to a factory owned by the applicant. The complainant alleged that on one occasion, the applicant restrained him either with handcuffs or rope, and convinced him to remove his clothes down to his underwear. The applicant said to the complainant, ‘You shouldn’t be ashamed of your body’. (Charge 1 — Indecent assault) The complainant described other uncharged similar incidents.
On another occasion, the complainant (then aged nine to 11) was seated on a three-seater couch in the lounge room of the applicant’s house in Glen Iris. The applicant commenced masturbating in the presence of the complainant. The applicant said, ‘This is how it’s done, it’ll make you feel good and you should give it a go.’ (Charge 2 — Gross indecency with a person under 16)
Charges 3 and 4 alleged acts of sexual penetration involving the applicant allegedly performing oral sex upon the complainant. The applicant was acquitted of these offences.
When the complainant was between nine and 11 years of age, the applicant played videos of heterosexual and homosexual pornography in his lounge room while the complainant was in the same room. The applicant left the room. When he returned, the complainant was masturbating. The applicant asked how it felt and the complainant replied that it felt good. The applicant sat beside the complainant and said words similar to ‘it’s different when someone else does it to you’ and ‘do you trust me?’. The complainant said he trusted the applicant and the applicant then put his hand down the complainant’s pants and masturbated him. (Charge 5 — Indecent assault)
Evidence relevant to proposed ground of appeal
The complainant gave evidence in chief broadly along the lines set out in paragraphs 5 to 8 of these reasons. Relevantly to the ground of appeal, the complainant stated that he commenced staying at the applicant’s house when he was about six years old and ceased when he was about 13 years old. Sexual activity commenced when he was aged seven or eight, or perhaps nine. During his teenage years, he became mentally unwell and received psychiatric treatment. In cross-examination, he accepted that he could be confused about the sequence of events of which he complained. He was unable to say whether the applicant tied him up and then masturbated, or whether the applicant masturbated before tying him up. He accepted that other sexual incidents may have occurred which he had blocked out. In particular, he made notes before making his police statement in which he wrote that he was made to touch the applicant’s penis. He now has no memory of that event. He stated that he made those notes to assist him with distinguishing between ‘what [were] facts and what was … deemed as emotional’. He agreed that he made these notes to attempt to distinguish facts from fantasy. He accepted that if the applicant talked about the complainant touching his (the applicant’s) penis, he (the complainant) could then have subsequently mistakenly believed that event happened.
The complainant stated that he was currently in receipt of a disability benefit from Centrelink because ‘they’ think he is mentally ill. He has renewed that benefit since he was 15, 16 or 17 years of age. He did not agree with ‘their’ diagnoses and called the diagnoses ‘misdiagnoses’. He was told he had a psychotic illness and was hospitalised on many occasions. He was taking medication then but is no longer doing so. On one occasion in hospital, he could have said to his mother that ‘they’ were building a bridge over Tullamarine Freeway to set people away from a bomb that he had created.
The complainant’s mother, TS, knew the applicant, who was related to her by marriage. The complainant had an emotional breakdown at around 16 years of age. He was put on anti-psychotic drugs and hospitalised at the Early Psychosis Prevention and Intervention Centre. At this time, the complainant told his mother that he had his breakdown because the applicant masturbated in front of him and taught him how to masturbate. TS said that the applicant told her son that if he told anyone about this, his parents would divorce and the complainant would end up with the applicant. TS took the complainant to the Centre Against Sexual Assault when he was about 16 years old. In cross-examination, TS stated that when her son was hospitalised, his behaviour became bizarre and she confirmed the ‘Tullamarine bridge’ conversation. At times, the complainant told her things that were obviously not real. He was unwell for four to five years, on and off, and has been well now for 10 years.
The complainant’s father stated that the applicant was married to his sister many years earlier. He stated that his son became withdrawn as he developed into his teens. He was hospitalised when he was 16 years old, which was the beginning of a 10-year intermittent psychotic illness.
In his police interview, the applicant denied any sexual contact with the complainant. He did not give evidence at trial.
Section 32 application
At the conclusion of evidence, his Honour invited the parties to identify the matters in issue[2] and then invited the parties to make requests as to particular directions sought.[3] Counsel for the applicant sought:
[2]Pursuant to Jury Directions Act 2015 s 11 (‘JDA’).
[3]Pursuant to JDA s 12.
(d) a modified Liberato direction;[4]
[4]See Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J). A judge should give this charge to the jury if the case turns on a conflict between the evidence of a prosecution witness and a defence witness, and it is reasonably likely that the jury will think that they must believe the defence evidence to be true before they can acquit the accused. The requirements for this charge were not modified by the commencement of the Evidence Act 2008.
(e) a forensic disadvantage direction pertaining to delay;[5]
[5]JDA s 39.
(f) a prior inconsistent statement direction;
(g) a direction concerning the use that could be made of the complainant’s evidence;
(h) a separate consideration direction dealing with all charges, including charges 3 and 4 (sexual penetration with a child);
(i) an ‘accused failure to give evidence’ direction; and
(j) a s 32 ‘unreliable witness’ direction concerning the complainant.
In submissions, counsel for the applicant contended that a combination of features made a s 32 direction appropriate. Those factors were:
(k) the complainant’s age at the time of the relevant events;
(l) the passage of 25 to 30 years between the relevant events and trial;
(m) the evidence of intervening mental illness; and
(n) the complainant’s evidence of his thought processes at the time of making his statements to police.
In discussion, his Honour observed that there was no secret about any of the above factors, which were all fleshed out before the jury. There was ‘nothing in any of [those] matters that reside[d] particularly within a judicial body [of knowledge]’. Counsel for the applicant modified his request for a s 32 direction to a s 32 direction in the style of what used to be called an ‘honest but erroneous memory direction’, and contended that the factors (a) to (d) in paragraph 15 above operated in combination to require such a direction. He contended that a s 32 direction ought be given but in a form modified to incorporate the terms of the model direction at 4.8.7 of the Criminal Charge Book. That model direction reads:
Because of the passage of so many years between the date(s) of the alleged offences, and the date of NOC’s first complaint about those alleged events, I must give you a warning about the reliability of NOC’s evidence.
My warning to you is as follows. The honest recollections of a witness about events that s/he believed to have occurred many years before may be unreliable.
You will easily understand that the passage of time may affect any witness’s memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is, they may come to remember things that did not really happen.
Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay.
[Add any other factors which may have exacerbated the risk of honest but erroneous memory in the circumstances, such as evidence that the complainant was suggestible. Also refer to any factors which may support the complainant’s recollection, such as the exceptional or traumatic nature of the alleged acts, or a timely complaint that was made to another person.]
His Honour ruled that he would give most of the directions sought but declined to give a s 32 ‘unreliable witness’ direction concerning the complainant.
In substance, his Honour stated that the requesting party must demonstrate that there was a reasonable possibility that the complainant’s evidence was unreliable. The judge went on to observe that every one of the factors relied upon to demonstrate this reasonable possibility was very clearly spelt out before the jury. His Honour held that the impugned evidence may well be of a kind that was unreliable:
I am prepared to find here that it may well be fitting that criteria[6] … [i]n the absence of there being good reasons not to give the direction, I am duty bound to give it.
[6]That there was a reasonable possibility that the complainant’s evidence was unreliable.
This approach was undoubtedly correct and in accordance with established principle. His Honour then proceeded to consider whether there were good reasons not to give the s 32 direction:
Well in this case each of those matters has been very much adequately ventilated in the course of cross-examination of the complainant. No doubt there will be further return to that in the course of the defence address and indeed I will be giving the jury directions in the way in which they might use prior inconsistent statements. That comes into play in relation to at least the written account that had been the subject of cross-examination, that is the handwritten account. In this case I have reached the view there are good reasons for not giving the direction in the circumstances.
And I have regard to the evidence in the trial and the particular way in which these matters have been and will continue to be very adequately ventilated before the jury. What need is there in such a case as that when we’re dealing with a combination of circumstances? There are none of those circumstances that reside within the domain of a judge or judicial officer and are foreign to those who are lay persons. Indeed, they are all concepts that in my judgement are very easily understood by lay persons and have been very amply laid out before them and can continue to be by way of argument placed before them by counsel.
So the unreliabilities that are said to arise are not hidden. They are not those dangers that are lurking in any of those categories that we would have said that the law might have a greater understanding than lay persons and I know that was the position in the case of Hudson as well of course, where ultimately the Court of Appeal took the view that the direction should have been given. But this in my judgment is a very different case when one looks at the combination of circumstances and what I’ve got to look at are these particular circumstances and the particular way that these matters have played out in front of the jury. And it is my judgment that there is no need to give the judicial direction.
There is indeed a good reason not to, that there is no risk that in the absence of a judicial direction the jury might be ignorant or might not fully appreciate or sufficiently understand the weight of the combination of these circumstances on the reliability of [the complainant’s] evidence. These are matters that can and have been raised adequately, simply and in a manner that is easy for a jury to understand and that is so, even as to a combination of matters as is relied upon here.
So in those circumstances I believe that there are good reasons for not giving the direction requested as I have elaborated on in my brief reasons delivered today.
Thus his Honour concluded:
(o) there was a reasonable possibility that the complainant’s evidence was unreliable; and
(p) there were good reasons for not giving the impugned direction and so refused the application.
The question on this appeal is confined to whether conclusion (b) above is correct.
This appeal
We shall summarise the parties’ submissions.
The applicant’s submissions
In written submissions, the applicant contended that the judge correctly concluded that there was a ‘reasonable possibility’ the evidence was of a kind which a jury may consider unreliable and that, in the ‘absence of good reasons’, he was obliged to provide the jury with an unreliability direction. In considering whether there were such good reasons, his Honour erroneously concluded that each of the matters relied upon to demonstrate unreliability were, as a combination, within the experience of a lay jury and did not require the ‘experience’ and ‘expertise’ of the law to guide the jury in their assessment of the complainant’s evidence. It was further submitted that his Honour failed to act upon the principle set out by this Court in Hudson[7] as to when a s 32 direction ought be provided, and misdirected himself as to the use that could be made of that case.
[7]Hudson v The Queen [2017] VSCA 122 [46] (‘Hudson’).
The respondent’s submissions
The respondent contended that it is ‘well-established that neither delay nor mental illness, either individually or in combination, are determinative of an application seeking an unreliability direction’. The respondent referred to the decisions of this Court in Allen,[8] Boyer[9] and Elmaghraby[10] in support of this proposition.
[8]Allen (a Pseudonym) v The Queen (2013) 39 VR 629 (‘Allen’).
[9]Boyer (a Pseudonym) v The Queen (2015) 47 VR 640, 658 (Kaye JA).
[10]Elmaghraby v The Queen [2016] VSCA 326 [21].
In oral submissions, counsel for the respondent was pressed as to whether the confluence of factors in this case could, in combination, constitute ‘good reasons’ for declining to give the direction. Counsel stuck admirably to his task and said all that could be said in favour of the respondent’s case.
Analysis
Section 12 of the JDA provides that, after the close of evidence, trial counsel must request the trial judge to give particular directions ‘in respect of … the matters in issue’ and evidence relevant to those matters. Section 14(1) provides that the trial judge must give the requested direction unless there are good reasons for not doing so. Section 32(1) provides that a party may request, under s 12, that the judge direct the jury on ‘evidence of a kind that may be unreliable’. Section 32(2) sets out the content of the particular direction that must be given by the judge.
Section 31 provides as follows:
In this Division—
‘evidence of a kind that may be unreliable’ includes—
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies; and
(b) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; and
(c) evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial; and
(d) evidence given by a witness who is a prison informer; and
(e) oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused.
It follows that consideration of an application for a s 32 direction requires the judge to undertake a two-stage process. First, the judge must determine whether the impugned evidence is of a kind that may be unreliable,[11] either because it comes within one of the categories specified in s 31, or because of circumstances which have the effect that the evidence is of that kind.[12] Assuming the judge determines the evidence to be of that kind, the judge is then obliged to give the direction unless there are good reasons for not doing so. In this case, as we have observed, his Honour concluded that the evidence was of a kind that may be unreliable. That conclusion is not disputed by either party on this application.
[11]R v Stewart (2001) 52 NSWLR 301, 320–321 [95]; R v Flood [1999] NSWCCA 198 [14] (‘Flood’).
[12]See Hudson [2017] VSCA 122.
In Allen, the applicant sought to appeal his conviction on three counts of indecent assault and one count of rape.[13] The complainant was a schizophrenic and suffered from a substantial cognitive impairment.[14] The trial judge found that the evidence was not of a kind that may be unreliable because the various conditions did not impact upon the complainant’s ability to recollect and narrate the disputed events. The Court of Appeal considered this factual finding to be ‘plainly open’.[15] Further, the Court considered that had the trial judge been in error, there were good reasons for declining to give a warning:
In our view, the jury were fully apprised of all relevant material relating to this issue.[16]
[13]Allen (2013) 39 VR 629.
[14]Her IQ was 55.
[15]Allen (2013) 39 VR 629, 638 [35].
[16]Ibid 640 [38].
The Court considered that the complainant’s potential unreliability, at the heart of the applicant’s defence, was completely exposed to the jury. The Court went on to say:
In the absence of a latent danger, known only to seasoned criminal practitioners, a … warning had no legitimate work to do.[17]
[17]Ibid.
Similarly, in Reardon,[18] Simpson J expressed the view that where potential unreliability and the reasons for it were fully exposed to the jury through evidence in chief, cross-examination and final addresses, then this could constitute a good reason for declining the direction.[19]
[18]R v Reardon (2002) 186 FLR 1.
[19]Ibid 31 [143].
Recently, in Hudson, this Court considered a similar argument. The applicant was a former Christian Brother convicted of rape. In that case, the trial judge conflated and inverted the s 32 process, imposing an onus on the accused to demonstrate good reasons why the direction should be given. Unsurprisingly, the appeal was successful. The Court considered a direction should have been given because the complainant in an historical sexual complaint suffered from such a combination of circumstances that the evidence was of a kind that may be unreliable.[20] The Court concluded that the factors relied upon by the applicant were such as to have rendered the complainant’s evidence unreliable in a manner which might not have been ‘fully or sufficiently appreciated by the jury, in the absence of an appropriate judicial direction’.[21]
[20]Hudson [2017] VSCA 122 [48].
[21]Ibid [52].
In Hudson, the complainant was, by his account, heavily drugged at the time of the sexual assault. He also had a number of behavioural problems, suffered from frontal lobe epilepsy and had vivid nightmares involving rape by religious brothers. He used marijuana and alcohol, suffered from drug-induced psychosis and auditory hallucinations, and was diagnosed with schizophrenia in his mid-20s. He had made an identical complaint against another Christian Brother. As we have observed, the Court concluded that there was, in the absence of a warning, a material risk that the jury might not have appreciated its task fully conscious of the risks associated with that particular combination of factors.[22] In the circumstances, the Court did not specifically address the issue of whether there were good reasons for declining the request for a warning, however, it can readily be inferred that the Court concluded that there were no such reasons.
[22]Ibid [61].
Contrary to the respondent’s written submissions, Hudson does not set down any new or modified principle in relation to what can constitute ‘good reasons’ or to the application of s 32 more broadly. Hudson is simply an illustration of the application of existing principles in a particular factual setting.
Whether there are good reasons for declining to provide a s 32 direction will always be a matter of fact and degree. There will be some occasions when there is absolutely no need for a direction, some occasions when the need for a direction is compelling, and some occasions when minds may differ as to whether a direction is required. In our view, if there is any doubt in a judge’s mind as to whether a s 32 direction ought be given, then prudence, and indeed the structure and language of s 32, requires that a direction should be given.
The reliability of the complainant underpinned the prosecution case in the appeal before us. The complainant was the only prosecution witness to the alleged sexual misconduct and there was little support for his account from external sources.[23] The dispute concerning the complainant’s reliability lay at the heart of the trial.
[23]Certain answers of the applicant’s police interview supported some of the factual foundation for charge 1.
In our view, his Honour erred in declining to direct the jury in the manner sought. We consider that the combination of factors that were relied upon by the applicant in support of a 32 direction were of sufficient force as to call for a s 32 direction, no matter how thoroughly they had been ventilated in cross-examination. This was not a request for his Honour to recite the factors relied upon and simply to warn the jury of the need for caution; a good deal more was requested. The judge was asked to warn the jury that because of the passage of time, the complainant’s age when the events were said to have occurred, the complainant’s intervening decade-long intermittent psychotic illness and the complainant’s own evidence of his tortuous reconstructive thought processes, the recollections of the complainant — even if honest — may be unreliable and the jury should exercise caution in considering those recollections.
We consider that it was not open to his Honour to conclude that there were good reasons for declining this request. The prospect of confabulation is well understood by those who regularly practise criminal law, but in our view, may not have been fully appreciated by this jury, in the absence of a carefully tailored s 32 direction along the lines of the model direction at 4.8.7 of the Criminal Charge Book.[24] As in Hudson, we consider that the concatenation of circumstances to which we have adverted had a real potential to adversely affect the reliability of the complainant’s memory, and given the importance of the complainant’s reliability to the prosecution case, we are of the view that there were no good reasons for declining this request made by the defence under ss 12 and 32 of the JDA.
[24]The full text of the model charge is set out at paragraph 16 of these reasons.
We observe that the structure of s 32 is designed to encourage trial judges to give an unreliability direction where there is a reasonable possibility of unreliable evidence. The question then becomes, ‘are there good reasons for declining the request?’, rather than ‘are there good reasons for giving the direction?’. The answer to the question will, of course, depend on the individual circumstances of the case, but it ought be borne steadily in mind that the default position is that the direction should be given.
Leave to appeal on ground 1 is granted, the appeal against conviction is allowed, and we will order a retrial on Indictment G13538462.2. We note that the applicant has already served approximately 50 per cent of the minimum term previously imposed. It is a matter for the Director of Public Prosecutions as to whether this problematic prosecution case is to be retried.
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