William Albert Smith v The Queen
[2015] VSCA 256
•17 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0003
| WILLIAM ALBERT SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN, PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 August 2015 |
| DATE OF JUDGMENT: | 17 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 256 |
| JUDGMENT APPEALED FROM: | DPP v Smith (Unreported, County Court of Victoria, Judge Montgomery, 21 July 2014 (date of conviction), 24 July 2014 (date of sentence)) |
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Sexual offending against two children – Whether a substantial miscarriage of justice occurred as a result of the way the accused’s character developed at trial – Reference in opening address to irrelevant facts – Defence counsel inadvertently adduced potentially prejudicial evidence – Failure of defence counsel to object to potentially objectionable opinion evidence – Failure of defence counsel to call good character evidence – Whether defence counsel’s conduct was explicable as a rational forensic decision – TKWJ v The Queen (2002) 212 CLR 124 considered – All complaints explicable forensic decisions in the context of the trial – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann | Melinda Walker |
| For the Respondent | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
OSBORN JA:
Introduction
The applicant stood trial in the County Court at Ballarat on 25 charges of sexual offending. He was convicted of 12 offences of indecent assault (charges 5, 7, 9, 10, 12, 15, 17, 19, 20, 21, 22 and 23)[1] and four offences of gross indecency in the presence of a child under 16 (charges 11, 14, 16 and 18).[2]
[1]Contrary to s 44(1) of the Crimes Act 1958.
[2]Contrary to s 50(1) of the Crimes Act 1958.
During the course of the trial, the judge directed that not guilty verdicts be entered on charges 1, 2, 3, 4, 6, 8, 13 and 24 and ordered a permanent stay on charge 25.
After a plea hearing, the applicant was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years.
The applicant now seeks leave to appeal against conviction only. He relies on a single ground which asserts that a substantial miscarriage of justice has occurred as a result of the way in which the issue of the applicant’s character developed in the trial.
It is submitted that a series of matters arose in the trial which unfairly raised issues of the applicant’s bad character and that, in turn, the applicant’s counsel failed to call good character evidence at the trial when he could and should have.
Ultimately, it is submitted that this resulted in a miscarriage of justice because ‘too many things went wrong’. It is not submitted that any of the matters raised individually warrant the success of the appeal. Rather it is submitted that the cumulative effect of the matters relied on gave rise to a substantial miscarriage of justice.
In putting the case this way, reliance is placed upon the decision of the Australian Capital Territory Court of Appeal in GZ v The Queen.[3] In that case, the Court held that the combination of the admission of bad character evidence and the failure of the counsel to adduce good character evidence caused the trial to miscarry. In the latter regard, the Court observed:
We can think of no forensic reason for the appellant’s then counsel not to have raised the appellant’s good character before the jury. There was no suggestion on appeal that the Crown, at trial, was in a position to rebut evidence of good character with evidence of bad character.
Significantly, this was the type of case where evidence of the good character of the accused would be particularly important. The jury would have been directed that they must take the evidence of the appellant’s good character into account both in determining whether he was guilty of the offence and in determining the weight and credibility to be given to his evidence. Where the Crown case largely rose or fell on the evidence of the complainant and the appellant gave evidence denying the offences, the question of credibility was particularly important.[4]
[3][2015] ACTCA 11.
[4]Ibid [16]–[17] (Murrell CJ, Burns J and Robinson AJ).
The Court was further satisfied that there was a significant possibility that the failure to lead good character evidence affected the outcome of the trial. This was particularly so in circumstances where inadmissible evidence of bad character had been led by the Crown.[5] For reasons which will be explained below, aspects of that case were materially different from the present one. Nevertheless, the underlying basis of the Court’s reasoning reflects the central issues in this appeal.
[5]Ibid [21].
Before turning to the facts of this case, it should also be noted that GZ v The Queen was an exceptional case. Ordinarily a party is bound by the way his or her legal representatives put a case at trial. In TKWJ v The Queen, Gleeson CJ emphasised the ordinary rule in the context of considering a decision by counsel not to call good character evidence:
On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound.[6] And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.[7]
[6]R v Birks (1990) 19 NSWLR 677.
[7](2002) 212 CLR 124, 128 [8] (Gleeson CJ) (citation in original) (‘TKJW’).
In the present case, the matters now the subject of complaint fall to be understood within a framework of forensic choices made by defence counsel at trial. Perhaps the most obvious of these choices was defence counsel’s decision not to call the applicant to give evidence although he was a former sergeant of police and his record of interview suggests he had the capacity to answer questions clearly and confidently. Another counsel may have taken a different course but this is not the kind of decision which this Court can go behind. Similarly, defence counsel attacked the credibility of the complainants within a particular framework of argument. Another approach might have been adopted but, once again, this is not a matter which this Court can go behind. It is only if the forensic decisions made by counsel manifest themselves in self-evidently unreasonable or inexplicable outcomes that this Court can ordinarily conclude that the conduct of defence counsel in making such decisions resulted in an unfair trial.
In Patel v The Queen, the plurality of the High Court addressed the failure by defence counsel to object to relevant evidence in similar terms to those adopted by Gleeson CJ in TKWJ:[8]
The respondent submits, nevertheless, that there was no miscarriage of justice, in the sense of a lack of fairness to the appellant, because the appellant did not object to much of the evidence and did not seek to make it the subject of any particular directions. Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted.[9] Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel.[10] The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[11]
[8](2012) 247 CLR 531, 562–3 [114] (French CJ, Hayne, Kiefel and Bell JJ) (citations in original).
[9]HML v The Queen (2008) 235 CLR 334, 361 [36], 408 [207], 459 [360], 491 [481].
[10]Nudd v The Queen (2006) 80 ALJR 614, 618 [9].
[11]Suresh v The Queen (1998) 72 ALJR 769, 772 [13], 773–774 [22]–[23], 780 [55]–[56]; Ali v The Queen (2005) 79 ALJR 662, 664 [7], 677 [98]–[99]; Tully v The Queen (2006) 230 CLR 234, 280 [149]; Nudd v The Queen (2006) 80 ALJR 614, 618–619 [9].
For the reasons which follow, I am not persuaded that this is an exceptional case of the kind in which the applicant should not be bound by the forensic choices of his counsel and I would refuse leave to appeal.
Background facts
AA and MI are sisters and are nieces of the applicant’s partner, GS.
In 1982, LM, the mother of AA and MI and the sister of GS, had separated from her husband and moved with her daughters to Ballarat. AA and MI visited the applicant and GS regularly and stayed overnight with them. MI also went away on holiday with the applicant and GS to a nudist camp. VW, a friend of MI, and daughter of friends of the applicant and GS who lived nearby, was sometimes present when MI stayed with the applicant.
It is alleged that the applicant committed the relevant offences between 1988 and 1991. At that time, the applicant was aged between 50 and 53, AA was aged between 12 and 15 and MI was aged between 8 and 11. The offending of which the applicant was found guilty is summarised in the following table:
Charge
Complainant
Offence
Alleged Circumstances
5
AA
Indecent Assault
Pornographic movie playing at applicant’s home showing people in spa. Applicant put his fingers inside AA’s vagina.
7
AA
Indecent Assault
In lounge room at applicant’s home, applicant licked AA’s vagina.
9
AA
Indecent Assault
In garage at applicant’s home, applicant licked AA’s vagina.
10
MI
Indecent Assault
Applicant attempted vaginal penetration of MI with penis in bed at applicant’s home. Applicant put his fingers inside MI’s vagina.
11
MI
Gross Indecency
Applicant in kitchen at home masturbating with cream and ejaculating in the presence of MI.
12
MI
Indecent Assault
At a nudist camp where the applicant, MI and VW in bed, applicant put his fingers in MI’s vagina.
14
MI
Gross Indecency
In bath at nudist camp applicant had MI place her hand on his penis.
15
MI
Indecent Assault
Same incident as charge 14, applicant and MI went to a bed and applicant placed his fingers in MI’s vagina.
16
MI
Gross Indecency
Same incident as charges 15 and 16, applicant placed MI’s hand on his penis and masturbated and ejaculated.
17
MI
Indecent Assault
Applicant sitting on toilet at applicant’s home, called MI into room then inserted his fingers into MI’s vagina whilst masturbating.
18
MI
Gross Indecency
Applicant called MI into shower at applicant’s home and masturbated to ejaculation.
19
MI
Indecent Assault
In pantry at applicant’s home, applicant inserted his fingers into MI’s vagina and made comments.
20
MI
Indecent Assault
MI seated on sink at applicant’s home, applicant inserted his fingers into MI’s vagina.
21
MI
Indecent Assault
MI on fold-out bed at applicant’s home, applicant inserted his fingers in MI’s vagina.
22
MI
Indecent Assault
Applicant inserted his fingers in MI’s vagina – Hansel and Gretel pornographic movie playing at the applicant’s home.
23
MI
Indecent Assault
Same incident as charge 22. Applicant inserted his tongue in MI’s vagina.
In summary, the applicant was convicted of three charges of indecent assault of AA. He was also convicted of nine charges of indecent assault and four charges of gross indecency involving MI as the victim.
The prosecution also relied on extensive evidence of uncharged acts. Evidence was given of the applicant washing AA’s vagina; massaging AA’s vagina through her knickers; engaging in an evening routine in which he fingered the vagina of both girls many times when they were in bed and the applicant got in with them; evidence of a morning routine in which the applicant fingered the vagina of AA many times when both girls were in bed with the applicant; showing pornographic movies to AA; walking around with an exposed penis in the presence of AA; masturbating in the presence of AA; licking AA’s vagina; using a vibrator on AA and penetrating her; attempting to place his penis in MI’s vagina; showing pornographic movies and a pornographic cartoon to MI and AA; exposing his penis to MI; moving MI’s hand up and down on his penis; masturbating in the presence of MI; touching MI’s vagina through clothing; and regularly rubbing MI’s vagina.
The indictment originally contained charges involving three other complainants when they were children — VW and two other children, the siblings SF and DP. Charges of gross indecency relating to each of these complainants comprising charges 26, 27 and 28 were severed by the trial judge. Despite the severance of the charge of offending against her, VW was called by the Crown on the trial of the offences against AA and MI because VW had given evidence at committal that she did not recall the incident alleged by MI that constituted charge 12. Her evidence was limited to her lack of recollection of this incident.
It was not disputed at trial that AA and MI regularly stayed overnight with the applicant and GS or that MI went away with the applicant to a nudist camp or that photographs were taken of her at the nudist camp.
In a record of interview made in November 2012 at Ballarat, the applicant admitted, amongst other things, that:
(a) he and GS were practising nudists and together with the children would walk around their house without clothes;
(b) a complaint had been made in 1991 regarding photographs taken by the applicant and GS of MI at a nudist camp which resulted in ‘child welfare’ investigating but taking no further action at the time. One photograph depicted MI jumping on a trampoline with her legs wide open;
(c) he had bathed MI as a child; and
(d) there were times when MI would sleep in his bed and he would watch pornographic movies. At times he had masturbated when he thought she was asleep alongside him.
On the other hand, the applicant emphatically denied that the alleged offending had occurred.
It was also argued at trial on behalf of the applicant that the taking of the photographs should not be regarded as improper:
(e) LM, the mother of AA and MI, was aware in advance of the proposed trip to the nudist camp and had agreed to it;
(f) GS had taken some of the photographs and it was apparent that, as MI’s aunt, she was not concerned by their content;
(g) when shown the photographs shortly after they were taken, LM expressed no concern to police as to their content or as to the fact that the applicant had possession of them;
(h) LM told police that she was surprised MI did not like the photographs; and
(i) when confronted with the photographs, LM told police that she did not believe the applicant had abused MI.
At trial, the central issue was the credibility of AA and MI. In this regard, counsel for the applicant placed significant emphasis on the following matters:
(j) the denial of VW that she was present during one of the alleged acts, which, it was put, affected MI’s credibility generally;
(k) the fact that when police investigated the photographs taken at the nudist camp, MI denied that the applicant had offended against her;
(l) evidence that MI was upset by a confronting police investigation sparked by the photographs taken of her in 1991. It was submitted that, as a result of mortification she suffered, MI developed animosity towards the applicant and that this was ‘the whole sorry genesis of this whole … saga’;
(m) LM had allowed her daughters to continue to see the applicant after MI attended the nudist camp and notwithstanding that LM became aware of the 1991 photographs;
(n) the dates of the alleged offending were vague and the applicant suffered a significant forensic disadvantage by reason of delay in complaint particularly in relation to being unable to obtain medical records from Ballarat Base Hospital where AA and MI were taken for examination in 1991 after the incident involving discovery of the photographs taken at the nudist camp; and
(o) AA and MI had a motive to make false allegations, namely, to receive compensation. This motive was evidenced by dealings that they had had with a law firm.
It is convenient to deal with the matters raised by the applicant in the present case concerning issues of the applicant’s character in the sequence in which they arose at the trial and then to turn to the absence of evidence of good character in this context.
The prosecution opening
In the course of opening the Crown case, the prosecutor referred to the finding of pornographic videos and a vibrator at the applicant’s house when it was searched at the time of the applicant’s arrest. As the trial judge shortly afterwards observed to the prosecutor, this evidence was of no apparent relevance to proof of offending some 14 years earlier. The opening had been shown to defence counsel and he had not objected to this aspect of it. When asked subsequently whether he wished to say anything about this aspect of the opening, defence counsel said:
Unless I have some sort of apocalyptic moment overnight or something I don’t think that that’s going to be the turning point of the case. I hope not, anyway.
No application was made to discharge the jury.
It is now submitted that the reference to what was found when the applicant’s house was searched unfairly prejudiced him. The difficulty with this submission is that it was not in issue at trial that the applicant in fact possessed pornographic movies and a vibrator at the time of the alleged offending. The applicant’s possession and use of pornography was contextually related to charges 5, 22 and 23. In his record of interview, the applicant freely admitted that he viewed pornographic movies at his home during the relevant period over which MI and AA visited and stayed there. He further admitted to masturbating when playing pornographic movies while MI was asleep in bed next to him.
The applicant’s possession of a vibrator at the time of the alleged offending was contextually relevant to charge 8[12] and the uncharged acts. In his record of interview he admitted that he owned a vibrator at the relevant time and stated that AA may have seen it when she visited his house.
[12]On which the judge ultimately directed that a not guilty verdict be entered.
At trial, defence counsel placed emphasis upon the frankness of the applicant’s admissions in his record of interview concerning these and other matters.
For present purposes, it is sufficient to conclude that the passing reference to what was found on the police search did not prejudice the applicant because it disclosed characteristics that were freely admitted and emphasised in the evidence directly relevant to the offending. In particular, there was no dispute that the applicant possessed items of this kind at the time of the offending.
The reaction of defence counsel at trial was that the statement in opening did not justify an application for discharge or any specific direction relating to it. This reaction was entirely justified and confirms the conclusion that the matters referred to did not cause prejudice to the applicant when regard is had to the complexion of the admissible evidence in the case. There is nothing in the complaint about this aspect of the trial.
The photographs
In 1991, copy photographs were provided to Victoria Police by the operator of a photograph processing shop. They depicted MI naked in various circumstances at a nudist camp to which she had been taken by the applicant and GS.
The photographs were referred to Fiona Latrobe, who was then a senior constable of police stationed at the Ballarat Community Policing Squad. Having considered the photographs, Ms Latrobe recommended that the matter be further investigated immediately and then interviewed MI at her school and LM at her home.
The Crown case was that the finding of the photographs led to the first complaint by MI to LM in 1991 that the applicant had molested her. It marked a significant step in the disclosure of the offending.
From the defence point of view, the evidence of what followed the finding of the photographs was also significant. When asked by police whether the applicant had acted inappropriately towards her, MI said that he had not. Moreover, despite viewing the photographs, LM made a police statement indicating that she was not concerned by the photographs or the fact that MI had been at the nudist camp with the applicant and GS. LM did not believe MI had been interfered with. In turn, LM permitted MI and AA to associate with the applicant after the photographs were brought to her attention.
Defence counsel submitted to the jury that they should conclude:
(p) that no complaint was made to LM by MI in 1991; and
(q) that the outcome of the police investigation confirmed that the applicant did not engage in the sexual acts alleged against him.
In addition, defence counsel submitted to the jury that the way in which the photographs emerged had given MI a reason to dislike the applicant and make false allegations against him. Defence counsel submitted in final address that this was the trigger for subsequent complaint many years later. It was submitted that when police attended the school to interview MI about the photographs, she was mortified and, in turn, developed ongoing animosity towards the applicant.
By the date of the trial, the photographs could not be located. At trial, Ms Latrobe described them as follows:
… sorry, I think three photographs of those people in the shower, naked in the shower, one with – I think it was [GS] and [MI] in the shower together and another two with [the applicant] and [MI] in the shower together and my memory is that they were washing each other in the shower or that’s what they appeared to be together and then there were three photographs of [MI] on her own on a trampoline. One of those photographs was fairly – just showed her – she was naked and it wasn’t particularly explicit but the other two photographs were very explicit. They basically showed her jumping in the air and her legs were wide apart and her genitalia was fully exposed and it seemed to be that the focus of the photographs was on the genitalia.
Shortly after describing the photographs and briefly describing an interview with MI, Ms Latrobe gave the following evidence, which was met by the following judicial responses:
What decision was made concerning whether there would be further police involvement in the matter?---[MI] told us really nothing that day, she closed right down. We got no information from her about what had happened or the circumstances of those photographs. But I continued to hold protective concerns. I felt that the photos were very explicit, they were inappropriate, they showed things that I wouldn’t want a child of mine having in a photograph and I had protective concerns. So I wrote the 47, sent it upstairs to the bosses basically saying that I felt that although I couldn’t prosecute any criminal matters at that time I felt that she needed to be protected from [the applicant] because I felt that he
HIS HONOUR: None of this is admissible.
THE PROSECUTOR: I’m sorry, Your Honour?
HIS HONOUR: None of this is relevant or admissible, what this officer’s view of it is.
THE PROSECUTOR: I’ll stop you there?---OK.
The witness was then again asked if she had asked MI whether there had been any inappropriate conduct and confirmed that she had. MI had told her no, there had not been any inappropriate conduct.
In cross-examination, Ms Latrobe then confirmed that the photographs raised protective concerns, which had led her to interview MI at her school on the same day that the photographs were received. Ms Latrobe made a written statement shortly afterwards, which recorded:
… that on 1 May 1991, [Ms Latrobe] spoke initially with [MI] in the presence of a teacher … MI stated that she went to [the applicant and GS’s] house every weekend and usually stayed overnight most weekends. Upon seeing the photographs, she stated that they had been taken at a nudist colony which she did not know the location of. [MI] was obviously distressed by the photographs of herself on a trampoline and stated that she felt embarrassed, that the photographs were rude and that they were disgusting. She also stated that she didn’t like [the applicant] having the photographs of herself. [MI] stated that [the applicant] had not touched her anywhere that he should not have and that he did not do anything that she didn’t like …
It is now submitted that Ms Latrobe’s evidence in chief of her protective concerns was inadmissible opinion evidence likely to have had a significant impact on the jury. The matters in issue emerged at the completion of the narrative of what Ms Latrobe did on the day the photographs were received. No objection was taken to this narrative by defence counsel. This is presumably because the defence case was not that Ms Latrobe’s reaction to the photographs was irrelevant but that her reaction was, in fact, an overreaction which led to an immediate confrontation with MI at her school. The theory was that MI found that confrontation disturbing and upsetting. Ms Latrobe described MI’s demeanour as follows:
Shocked. She did not want me to see those photos. She was really upset that I had seen them and very, you know, quite obviously distressed; mortified would be the word I would use, mortified that I had seen those photos and that the policeman had also seen them.
As I have said, defence counsel put the argument in final address that the police response to the photographs had triggered an adverse reaction in MI, specifically by reference to the document that recorded Ms Latrobe’s protective concerns and went on to say:
And I put this to this witness when she was giving evidence. You’ve got a young girl, in 1991 she was what — her date of birth is 1979, she’s what 12 or so right? Or whatever, of that order, an impressionable young girl, what happens? You’ve got three, three police officers turn up at school. Why they went to the school I suggest to you it just beggars belief. Why not go to her home? Speak to her in the privacy of her home. They go to her school. You would think probably in uniform, I’m not entirely clear about that, because it’s so long ago.
But in the presence of a teacher as well, raise nude photographs. What do you reckon that’s going to do to an 11 or 12 year old girl. She’s going to be, as this report says, mortified. She’s mortified by it. That’s what she’s distressed about, the fact that the police were there at her school, and indeed showing her these photographs. That’s what’s caused her the stress. And, this is where, you know, years down the track I suggest to you, she develops this animosity against [the applicant] and comes out with these appalling allegations against him.
But at the very time that she is there in the company of police officers, and you would think — even though I criticise the police for going to the school in the middle of the day, even though I criticise the police for that — you would think that the police officers would not have attempted to intimidate or frighten this young girl. You would think that the police would have indicated to her, ‘Look we are here to help. We are here to help you [MI]. If anything wrong has happened, tell us about it and we will do something about it’. You would think that that would be the approach of the police. No reason to think otherwise. That they would’ve tried to reassure her as best they could that they were there to help her, not to frighten and intimidate her. And in that sort of setting she says ‘He didn’t do anything, never touched me, hasn’t touched me’, in that setting.
Now, as I say, is there any reason why you should not accept that that in fact was the truth?
I do not accept that the evidence Ms Latrobe gave of protective concerns would have had a significant impact upon the jury as the applicant now submits. It was patently obvious that she must have had such concerns based on the photographs or she would not have immediately sought MI out at her school and confronted her with those concerns. The evidence now complained of was the completion of a narrative upon which the defence relied heavily to emphasise first that MI was confronted and upset when the police attended her school, and secondly, that MI denied anything inappropriate had occurred when she was confronted with the photographs.
Moreover, insofar as the evidence was of the content of a report to Ms Latrobe’s superiors, it could have been the subject of a direction pursuant to s 136 of the Evidence Act 2008 that it not be used as evidence of the underlying fact, namely that the photographs were of themselves sufficient to give rise to ongoing protective concerns. No such direction was sought. Nor was any application made to discharge the jury. Again, this is not surprising given the forensic context. The evidence now complained of was consistent with the defence case that the police overreacted but despite that overreaction MI denied that the applicant had abused her. It also helped explain the basis of the confrontation which defence counsel submitted provided a motive for false allegations.
Defence counsel’s failure to object to the evidence or seek a direction with respect to it was neither self-evidently unreasonable or inexplicable. In the context of the evidence at the trial and more particularly the defence case, the matter now complained of did not cause the applicant any material prejudice.
Evidence concerning the applicant’s wife
Early in the trial, the prosecutor raised concerns as to the potential prejudice that might flow to the applicant if LM, the mother of MI and AA, were asked why she had not spoken to the applicant about the photographs, when they were brought to her attention. More particularly, counsel expressed concern that LM would say she was aware of physical abuse suffered by her sister GS, the applicant’s wife, and further say that she, LM, was also frightened of the applicant.
In turn, the prosecutor raised a potential basis upon which evidence might be led to avoid this problem. Defence counsel responded that he did not object to the matter being raised in evidence in chief because he was going to raise it in cross-examination.
In due course, the issue was addressed in the briefest of terms in evidence in chief but, as he had foreshadowed, defence counsel opened the issue up. He not only expressly put to LM that she had expressed reservations to the police about the applicant because of the way he had treated her sister in the past, defence counsel went further and put to her that in December 2012 she had told the police the following:
I was aware of some physical abuse suffered by GS and to be honest, I was too frightened of him myself to confront him about them, but even though I knew he had taken the photographs that were obviously inappropriate, I did not think he had been sexually abusing my children.
After putting this part of her police statement to LM again, defence counsel asked:
Having read that to you, do you agree with what I’m putting to you that it must have been your belief even after [MI] ripped up these photographs, it was your belief that [the applicant] had not been sexually abusing your children?---I’m not sure because I’m not sure when the kids told me.
The forensic purpose of defence counsel in dealing with this evidence in the way that he did is plain from the last part of this last question. Counsel sought to emphasise that, having seen the photographs, LM nevertheless did not believe the applicant had abused her children.
In due course, the applicant’s wife, GS, was called by the defence and no evidence was adduced from her, either in chief or in cross-examination, concerning the alleged abuse of her by the applicant. In turn, no direction was sought from the
judge in respect to this aspect of LM’s evidence. Moreover, it was not the subject of final address or any direct mention in the judge’s charge to the jury.
It is now submitted that the jury must have been ‘puzzled’ by this sequence of events.
Having regard to the way the parties put their cases to the jury, I do not accept that the jury must have been puzzled by the sequence of events which occurred in relation to this issue. Rather, it is more probable that the jury simply focussed upon the issues as they were defined for them in closing addresses and the charge. Further, I do not accept that the evidence of LM gave rise to any miscarriage of justice, let alone a substantial miscarriage of justice for the following reasons.
First, the evidence was elicited by questions deliberately asked by defence counsel and an accused is ordinarily bound by the course adopted by his counsel.
Secondly, the questions in issue sought to put in full a part of a statement made to police to the effect that at the time the photographs were first brought to LM’s attention and it was said complaint of sexual molestation was made to her by MI, LM did not believe the applicant had in fact molested her daughter. The form of questioning that was adopted reflected a forensic choice as to the manner of LM’s initial belief. The choice made was to put the statement relatively fully, rather than in a more confined manner.
Thirdly, the issue was not pursued when GS gave evidence.
Fourthly, the reference by LM to her fear of the applicant in her police statement was not a matter identified in final addresses or highlighted by the judge in his summary of the evidence for the jury.
Fifthly, no direction was sought or given to the jury concerning the evidence. This confirms that it was not perceived by defence counsel in the context of the trial to be materially prejudicial.
Whilst a more cautious and confined approach might well have been adopted by the cross-examiner, once again it cannot be said that the course taken by defence counsel was self-evidently unreasonable or inexplicable.
The evidence of MI concerning VW
Initially the indictment contained 28 charges relating to five different complainants (AA — charges 1 to 9; MI — charges 10 to 25; VW — charge 26; SF — charge 27; and DP — charge 28).
At the start of the applicant’s trial, defence counsel applied for severance of the trial of the charges against him in respect of individual complainants from those comprised in the balance of the indictment. The judge ordered severance of the charges relating to AA and MI from the charges relating to the other complainants.
In so doing, the judge said:
It is my view that a case involving two complainants with 25 charges is the optimum for a jury to sensibly consider and thus avoid the risk of any prejudice arising in a trial containing all charges.
In due course, VW was called to give evidence in respect of matters relating to MI but, in accordance with the severance ruling, gave no evidence in chief that she had been sexually abused by the applicant.
In the course of cross-examination of MI, defence counsel nevertheless subsequently introduced evidence which suggested VW may have been sexually abused by the applicant. The principal focus of the cross-examination of VW was to emphasise that she had no recollection of an episode of sexual interference with MI which MI had said had occurred when VW was in bed alongside both MI and the applicant.
When MI was cross-examined, she was taken to evidence which she had previously given at the committal hearing in the following way:
What about this, because the questions go on like this, the next question is, Question: ‘But you say, don’t you say that some of this abuse occurred in the presence of other persons’?---Yes.
Your answer was ‘Yes’, Question: ‘As in do you say’, and there’s some indistinct answer, and you say ‘Yes I do’, and then this question, Question: ‘So do you say that you were assaulted in the presence of your sister [AA], for example, do you say that?’ Your answer, listen carefully to this, is this, ‘[AA] recalls it, I don’t. I remember her being asleep in the room but it wasn’t like what happened with [VW] and myself, no.’ Do you recall saying that?---As I said to you
Sorry?---As I said to you I do remember her being in the room, I …[13]
[13]Emphasis added.
It can be seen that in putting the prior statement concerning inconsistency between the recollection of AA and MI’s evidence, defence counsel incidentally referred to VW. That reference was ambiguous and might be taken as an allegation that something happened between the applicant and VW.
Shortly afterwards, in the absence of the jury, the judge raised with defence counsel the proposition that an astute jury could work out that there was another allegation concerning VW. Defence counsel responded that he did not understand the evidence this way. The judge asked defence counsel whether he should say something about this or just leave it? Defence counsel sought time to think about this but did not subsequently ask that the judge give the jury a direction. On the contrary, defence counsel pursued the issue of what had and had not been discussed between MI and AA, asking questions of MI which culminated in the following exchange:
And the jury will recall her evidence probably better than I, but she certainly didn’t give evidence about this incident which seems to be, if it occurred, would be something that you’d never forget?---As I said many incidences, this is the one that I remember. I remember ones in the bath while [VW] was there. I remember a lot — a lot of times [VW] and I were together and he would abuse us.
So you say that [VW] was abused on a number of occasions by [the applicant], is that so?---Can I answer that?[14]
[14]Emphasis added.
The prosecutor then sought to address the issue in the absence of the jury. In the course of that discussion, the judge observed correctly that specific matters could have been put to VW by defence counsel without pursuing the question of whether VW was sexually abused by the applicant. Defence counsel responded in terms which made clear that he mistakenly believed VW had given evidence in chief about such abuse. This was a material misapprehension.
Further, after he was disabused of the misapprehension, defence counsel then asserted wrongly that what MI had said was non-responsive to his cross-examination of her. In truth, the problem was that defence counsel did not shut out generalised answers by asking concise questions and ultimately put squarely to MI that she had said that VW was abused on a number of occasions.
Nevertheless, defence counsel made clear that in any event the collateral evidence of abuse of VW was not in his view significant.
COUNSEL: … There were a number of occasions where [VW] was abused, and it’s at that point, the matter having been opened up by her, that I then put to her ‘Well do you say that [VW] had been [abused] on a number of occasions’. Now, I don’t see it doing any damage to anyone here Your Honour. I don’t seek to make anything of it. I can see that there’s a potential here for other matters being opened up, but I don’t think it’s gone anywhere near that stage yet, bearing in mind that the whole [tenor] of the questioning, up until she opened up the alleged other abuse on [VW], was confined to this particular incident.
HIS HONOUR: But, it was always going to happen because you kept persisting with the questions, even though she’s telling you ‘I don’t remember discussing this incident’, ‘I discussed things with her’. If you’d just left it at that, that was the end of it. The answer wasn’t going to get any better for you.
COUNSEL: Well I suppose that’s a fair enough observation Your Honour. I probably should’ve taken what I had and stopped.
HIS HONOUR: Clearly. Well you say you’re not concerned about it, so
COUNSEL: No.[15]
[15]Emphasis added.
Plainly enough, counsel took the position that he did because the thrust of his cross-examination was to emphasise the apparent inconsistency of VW’s recollection with the evidence of MI. Ultimately, the judge’s summary of the evidence concerning charge 12 picked out the evidence bearing directly on this point and emphasised the defence position:
And [defence counsel’s] point is that if this event had occurred, you would have expected [VW] to tell you about it or to have remembered it and the fact that she does not remember it means that such an exceptional thing to happen, she would have remembered it, therefore it didn’t happen.
It is now submitted that the sequence of events would have had a significant effect upon the jury. More particularly, it is submitted the jury would have been left with the impression that MI had not been permitted to answer the last question asked about the regular sexual abuse of VW. It is further submitted that the end result was that the jury were left with unchallenged evidence that the applicant had regularly sexually abused VW.
It is apparent, however, that defence counsel did not take the view that the collateral evidence concerning VW was likely to have had a significant impact on the jury. His position in this regard was confirmed by the fact that he sought no direction from the judge concerning the evidence.
In turn, no reliance was placed on the collateral evidence concerning VW by the Crown in final address and it became a matter which, if it had any effect upon the jury, must have done so as a result of the two very brief passages of evidence to which I have referred. The evidence certainly did not overload the jury in the manner in which the judge recognised as unacceptable in ruling on severance.
In my view, it is plain that the questions which produced the answers now objected to, were deliberately asked in the way that they were for a forensic purpose, namely that of emphasising a key inconsistency upon which the applicant relied.
In turn, the forensic impact of the evidence fell to be assessed in the context of the fact that VW herself had already given evidence without asserting any sexual abuse by the applicant. Counsel was entitled to take the view that this circumstance materially ameliorated the risk that the jury might give MI’s statement any significant weight.
It is also relevant that both MI and AA had given evidence of a very extensive range of uncharged acts. The matters described were so extensive and dramatic that the defence response was that acts of the kind and number in issue could not have gone unnoticed. The judge summarised the evidence of uncharged acts in his charge as follows:
Now, in this case you have heard a whole lot of other evidence about sexual offending that are not the subject of any charge and I will just briefly remind you of what they are, and this is very general. In relation to [AA], there was touching and massaging her vagina in the bath with her sister, more than 30 incidents of fingers in the vagina, lots of time watching pornography and masturbating and talking about, ‘if I like it’. Walking around with earrings on the penis and stop and wiggle in front of her. Ten times used a vibrator on her. Ten times had oral sex prior to the vibrator. And there is evidence from [MI] that she saw [the applicant] in the bath washing [AA’s] vagina.
And in relation to [MI], she spoke about the morning routine of penetration by the fingers in the vagina. She spoke about the evening routine as such. Watching porno movies five to six times. Sitting on a kitchen sink and having penetration with the fingers of her vagina. Rubbing the vagina on Friday night. Washing in the shower at the nudist camp and so on.
In consequence, passing reference in the most general of terms to another uncharged act involving a third victim could not have materially changed the evidentiary complexion of the case. The collateral allegation was effectively overwhelmed by the detailed evidence of uncharged acts led from MI and AA.
There were thus two contextual circumstances bearing on the significance of the collateral allegation. Given the context provided first by the failure of VW to give any evidence of sexual abuse by the applicant, and secondly, by the overwhelming evidence of uncharged acts given by MI and AA, defence counsel’s judgment that the evidence in issue did not materially prejudice his client should be accepted.
Defence counsel’s choice to proceed as he did involved some risk but it was again not so plainly unreasonable as to be inexplicable.
Cumulative references to bad character
For the reasons I have explained, none of the individual matters which might be regarded as conveying imputations of bad character upon which the applicant now relies were individually significant. Nor, in my view, would they have had a significant cumulative effect upon the jury. In summary:
(r) the reference in opening address by the prosecutor to pornographic material and a vibrator found on the search of the applicant’s home at the time of arrest many years after the offending was not the subject of objection by defence counsel and, in the circumstances of the case, could not have prejudiced the applicant;
(s) the evidence of a statement made in 1991 by the investigating police officer, Ms Latrobe, which recorded protective concerns arising from the content of photographs of MI was not objected to and formed part of the context in which defence counsel put the case that the police overreacted, that despite the overreaction MI made no complaint and that the police overreaction engendered animosity in MI directed towards the applicant. There was no material prejudice to the applicant in all this;
(t) the puttage to LM of the police statement made by her in 2012 describing her detailed response to the photographs of MI reflected a forensic choice and did not occasion material prejudice to the applicant; and
(u) the passing reference to interference with VW by the applicant which was made in the course of cross-examination of MI was not something which caused counsel for the applicant concern and no direction was sought with respect to it or application for discharge of the jury made on the basis of it. Further, the matters were put in the context of highlighting a central plank of the defence case and any potential prejudice fell to be evaluated in the context of an absence of evidence from VW as to any such abuse and an abundance of evidence of other uncharged acts alleged against MI and AA.
This is not a case like Clay (a pseudonym) v The Queen[16] where too many things went wrong in the course of the evidence for the conviction to stand. In that case, no objection was taken to prejudicial and irrelevant evidence concerning bedwetting and self-mutilation by the alleged victims of sexual abuse. In addition, evidence of complaints made 20 years after the alleged offending was admitted. There was a failure to call very strong good character evidence. But it was the failure to challenge the admissibility of prejudicial evidence which was critical to the decision. The Court said of the failure to call good character evidence:
For our part, we can think of no conceivable reason why this evidence was not led before the jury. The case seems to us to have some parallels in that regard with Saw Wah v The Queen.[17] Nonetheless, ground 8, had it stood alone, may not have established that, in the particular circumstances of this case, there had been a substantial miscarriage of justice. However, in combination with the other grounds already discussed, it strengthened our conclusion that there should be a new trial.[18]
[16][2014] VSCA 269.
[17][2014] VSCA 7. See also, Bishop v The Queen (2013) 39 VR 642.
[18]Clay (a pseudonym) v The Queen [2014] VSCA 269 [75] (emphasis added) (citation in original).
Having now examined the context of the trial, it remains to consider the failure by defence counsel to call good character evidence.
Good character evidence
At the trial, defence counsel did not adduce good character evidence from three character witnesses who subsequently gave evidence at the plea hearing. That evidence was evidence of general good character.
Defence counsel also did not seek to adduce evidence from the informant in cross-examination that the applicant was a man with no prior convictions.
This course was adopted without seeking any indication from the judge as to the potential consequences of adducing such evidence and in particular whether, if good character evidence were led, the Crown would be permitted to lead evidence in rebuttal.[19]
[19]Saw Wah v The Queen [2014] VSCA 7 [23]–[25].
It is now submitted that the calling of the available good character evidence and the giving of a good character direction by the judge would have been highly significant in the context of the trial.
The history of the law governing good character evidence is summarised by Weinberg JA in Saw Wah v The Queen.[20] The admissibility of such evidence is now governed by s 110 of the Evidence Act 2008 which provides:
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2)If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.
(3)If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.
[20]Ibid [42] following.
The evidence here in issue was evidence generally that the applicant was a person of good character. It was not evidence that he was of good character in a particular respect. In Bishop v The Queen, Redlich JA said:
The phrase ‘in a particular respect’ in s 110 is described by Gans and Palmer as meaning ‘pertaining to a particular characteristic ‘ such as for example, gentleness, generosity or good citizenship.[21] But it may also relate to a particular context in which relevant conduct has taken place. Thus evidence may for example be adduced by work colleagues as to the defendant’s honesty in his employ or by his relatives as to his good parenting skills. The accused may call evidence which is specifically focussed upon good character relating to the charge or an absence of prior bad character with respect to the specific conduct the subject of the charge. Thus evidence of good character in a particular respect to counter allegations of sexual abuse has been admitted. In R v PKS,[22] a case involving sexual offences against a minor, evidence of good character in respect of young children was admitted. In R v Zurita[23] evidence of a lack of antecedent sexual offences was admitted.[24]
[21]Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 243.
[22]R v PKS (Unreported, NSWCCA, 1 October 1998, Wood CJ at CL, Sully and Ireland JJ), 9–10.
[23][2002] NSWCCA 22.
[24](2013) 39 VR 642, 645 [8] (citations in original).
It may be accepted that, if good character had been adduced in the present case, the judge would have directed the jury that such evidence could be used by them as bearing not only on the probability of the applicant committing the alleged offences but also as going to the credibility of the account the applicant gave in his record of interview.[25]
[25]Melbourne v The Queen (1999) 198 CLR 1, 14 [30] (McHugh J), 27–9 [72]–[77] (Gummow J), 46–7 [120] (Kirby J), 55–7 [152]–[157] (Hayne J), 69 [200] (Callinan J); Stanoevski v The Queen (2001) 202 CLR 115, 123 [29] (Gaudron, Kirby and Callinan JJ).
It does not follow from the fact that good character evidence was available that a miscarriage of justice resulted from the failure by defence counsel to adduce such evidence. In TKWJ,[26] it was alleged that the accused had committed sexual offences against the son and daughter of a woman with whom the accused was living at the time of the alleged offences. The initial indictment alleging offences against both victims was severed to enable separate trials to be held. In the course of the trial relating to the alleged offending against the son, counsel for the accused informed the prosecutor that he intended to adduce evidence of the accused’s good character. The prosecutor replied that, in that event, he would seek to call the daughter to give evidence about the allegations relating to her. No character evidence of the accused was called and the accused was convicted. The High Court held that there was no material irregularity at the trial and that it could not be concluded that a chance of acquittal that was fairly open had been lost because it was not established that, if good character evidence had been adduced, rebuttal evidence from the daughter would not have been called. The course taken at trial thus reflected a forensic choice which was reasonably open.
[26](2002) 212 CLR 124.
Gaudron J (with whom Gummow and Hayne JJ agreed) summarised the relevant principles as follows:[27]
[27]Ibid 133–5 [26]–[33] (citations in original).
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’.[28] The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.[29]
[28]Mraz v The Queen (1955) 93 CLR 493, 514 (Fullagar J).
[29]See Doggett v The Queen (2001) 208 CLR 343, 357 [55], (Gaudron and Gummow JJ); Suresh v The Queen (1998) 72 ALJR 769, 771 [6] (Gaudron and Gummow JJ).
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.[30]
[30]See Gipp v The Queen (1998) 208 CLR 343; Doggett v The Queen (2001) 208 CLR 343.
Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial – ‘fresh evidence’, as it is usually called.[31] The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be ‘flagrant incompetence’,[32] an ‘egregious error’,[33] ‘extreme conduct’[34] or ‘significant fault’.[35] Thus it was that the argument in the present case was premised on counsel having made a ‘wrong’ decision.
[31]See Ratten v The Queen (1974) 131 CLR 510, 516 (Barwick CJ); Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.
[32]See R v Birks (1990) 19 NSWLR 677; R v Miletic [1997] 1 VR 593; R v Peeris [1998] EWCA (Crim) 597.
[33]R v Miletic [1997] 1 VR 593.
[34]Boodram v State of Trinidad and Tobago [2001] UKPC 20.
[35]R v Martin [2003] QB 1, 11–12 [47] (Lord Woolf CJ), delivering the judgment of the Court.
Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether ‘on any other ground … there was a miscarriage of justice’. The words ‘on any other ground’ do not postulate the demonstration of error. Rather, they simply require that ‘something occurred or did not occur’ in the trial.[36]
[36]See R v Scott (1996) 131 FLR 137, 152 (Doyle CJ).
As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referrable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:
[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.[37]
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that ‘when viewed in combination with the evidence given at trial … the jury would have been likely to entertain a reasonable doubt about the guilt of the accused.’[38]
[37]Ratten v The Queen (1974) 131 CLR 510, 517.
[38]Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ). See also 273 (Mason CJ); 275 (Brennan J).
To similar effect, Hayne J (with whom Gummow J agreed) identified the central issue in cases such as the present as being whether there could be a reasonable explanation for not calling the good character evidence in issue. His Honour summarised his conclusions as to the relevant principles as follows:[39]
If the relevant question is, as I would hold it to be, whether there could be a reasonable explanation for not calling the evidence, the principal focus of the inquiry remains upon whether the accused had a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed. The focus is not shifted from those matters to what trial counsel did, or did not, think about in the course of the trial. Nor would appellate courts be required to form any judgment about what would have been the better choice for counsel to make when confronted with one of the many and difficult choices that are presented to counsel at trial. If there could be a reasonable explanation for not calling the evidence, it follows that counsel could have chosen to act in that way without criticism. It follows that the outcome of an otherwise regular trial is not to be impeached on the ground that some evidence was not led at trial unless the evidence is fresh, or, if the evidence is not fresh evidence, there could be no reasonable explanation for not calling it and, in either case, the evidence is such that, viewed in combination with the evidence given at trial, the jury would have been likely to entertain a reasonable doubt about guilt.
[39]TKWJ (2002) 212 CLR 124, 159–60 [112].
In cases of the present type, the same principle applies in determining whether a substantial miscarriage of justice has occurred within the meaning of s 276(1) of the Criminal Procedure Act 2009.
As the judgments of the High Court make clear, the onus is upon the applicant to demonstrate in the first instance that there could not be reasonable explanation for failure to call good character evidence in his case.
Defence counsel was given the opportunity by this Court to clarify and explain the course adopted at trial,[40] but no affidavit material was filed.
[40]Knowles (a pseudonym) v The Queen [2015] VSCA 141 (Ashley, Redlich and Priest JJA) [144]–[147].
The Crown submits that, if evidence of good character had been adduced in the present case, the prosecutor would have been entitled to call rebuttal evidence pursuant to s 110(2), subject to the potential exclusion of such evidence by the judge pursuant to s 137. This is the very same forensic risk as that which confronted defence counsel in TKWJ.[41] Indeed, the decision in that case highlights the possibility the Crown might have sought to pursue this course.
[41]Ibid.
In the present case, it is submitted that if the applicant had sought to call good character evidence, he faced the risk that the prosecutor would call rebuttal evidence from VW, SF or DP concerning the alleged abuse by the applicant of each of them. As Gaudron J observed in TKJW,[42] such evidence might be permitted to be called for the limited purpose of rebutting good character only, thus limiting its prejudicial effect.
[42]Ibid 138–9 [47].
Whilst, for the reasons I have explained, the passing general reference made by MI in her police statement with respect to abuse of VW by the applicant did not in context materially prejudice the applicant, the calling of detailed evidence from the alleged victim would be quite another thing. The defence case was put on a considered basis which isolated the evidence of VW, by restricting it to an aspect which was inconsistent with the evidence of MI. If the prosecutor were permitted to call rebuttal evidence from VW, SF or DP such evidence would dramatically change the overall complexion of the evidence against the applicant. It would also raise the forensic necessity to cross-examine VW, SF or DP and, in effect, put to them the case which the applicant would otherwise put to them for the first time upon his trial relating to the alleged offences against them.
It is true that defence counsel could have sought an indication from the judge as to the potential consequences of calling the good character evidence which was available. Indeed, ordinarily counsel might be expected to take this course in a case such as this. The failure to do so does not, however, demonstrate that there was no legitimate forensic purpose involved in counsel’s choice not to call good character evidence. The onus is upon the applicant to demonstrate that there could be no such purpose. In my view, he has failed to do so. There was an objective forensic reason why counsel might not adduce good character evidence in the present case.
This is not a case in which it can be concluded as it was in GZ v The Queen:
We can think of no forensic reason for the appellant’s then counsel not to have raised the appellant’s good character before the jury. There was no suggestion on appeal that the Crown, at trial, was in a position to rebut evidence of good character with evidence of bad character.[43]
[43][2015] ACTCA 11 [16] (Murrell CJ, Burns J and Robinson AJ).
There is also a real question whether, if it were concluded that there was no reasonable explanation for not calling good character evidence relating to the applicant, such evidence viewed in combination with the evidence given at trial was such that the jury would have been likely to entertain a reasonable doubt about guilt.[44] This question remains live if the test is alternatively formulated as being whether there is ‘a significant possibility that the jury acting reasonably, would have acquitted the accused’.[45]
[44]TKWJ (2002) 212 CLR 124, 135 [33] (Gaudron J), 159–60 [112] (Hayne J).
[45]Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ).
There is no doubt that good character evidence and a good character direction may materially benefit an accused when what is essentially at issue are questions of credit in respect of the truthfulness of allegations of sexual offending. Nevertheless, when asked in the course of submissions on the hearing of the appeal whether it was accepted that the applicant must meet the ultimate test as stated in TKWJ,[46] counsel for the applicant responded that this case was not put this way but rather as an aggregation of errors case. This reflects a misconception. Although errors made in respect of the admission of bad character evidence may provide a telling context in which to assess a failure to call good character evidence, the ultimate question is whether there is a significant possibility that the failure to call that evidence affected the outcome of the trial. The position adopted by the applicant on the appeal
implicitly conceded that this is a difficult case in which to reach this conclusion.[47] The jury heard evidence that the applicant was a former sergeant of police. They may also be taken to have known as a matter of general human experience that sexual offenders are not infrequently persons who are otherwise of good character. Having read the evidence in the present case, I am not persuaded that the good character evidence would in any event have given rise to a significant possibility that the jury acting reasonably would have acquitted the accused.
[46](2002) 212 CLR 124.
[47]Cf Clay (a pseudonym) v The Queen [2014] VSCA 269 [75].
The applicant’s case was expressly put on appeal on the basis that the failure to call good character evidence was of particular significance in the present case because of the bad character evidence which emerged incidentally in the course of the trial. For the reasons I have explained, however, this is not a case like GZ[48] in which significant prejudicial evidence emerged.
[48]GZ v The Queen [2015] ACTCA 11.
Conclusion
For the above reasons, the application for leave to appeal against conviction should be refused.
PRIEST JA:
Substantially for the reasons given by Osborn JA — whose reasons I have had the considerable benefit of reading in draft — I too would refuse the application for leave to appeal.
There are three aspects, however, which have caused me some hesitation.
First, my instinctive reaction to the evidence of Ms Latrobe as to her ‘protective concerns’ and her inability to ‘prosecute any criminal matters’ was the
same as the trial judge’s.[49] In my view, the evidence had the potential to have a significant impact on the jury to the prejudice of the applicant.[50] I agree with Osborn JA, however, that — no matter how risky counsel’s strategy in response to the evidence might appear to be at this distance from the trial — it was not inexplicable. Thus, the applicant must be bound by his counsel’s conduct.
[49]Above [39].
[50]Cf above [44].
Secondly, defence counsel’s cross-examination of MI[51] was lamentably loose, and seems in any event to have flown from a regrettable misapprehension on counsel’s part as to the content of previous evidence. I am driven to conclude, however, as does Osborn JA, that counsel embarked upon a deliberate course with some forensic purpose in mind. I agree with the assessment that counsel’s choice involved risk, but I am unable to conclude that his choice cannot rationally be explained.
[51]Above [61] et seq.
Thirdly, to anybody experienced in the conduct of a criminal trial, at first glance counsel’s failure to call character evidence in the defence case seems odd. Such evidence could have borne both on the unlikelihood of guilt, and the credibility to be attached to the applicant’s denials in the record of interview.[52]
[52]Bishop v The Queen (2013) 39 VR 642, 651 [36].
I am unable to conclude, however, that the failure to call evidence of good character might not have been the product of a considered forensic decision. Often there will be reasons why counsel do — or fail to do — certain things in a criminal trial which are not apparent to the appellate court. Thus, for example, there may be discussions, concessions and agreements between trial counsel that do not find their way into the record of the trial.
In the present case, the applicant’s trial counsel was given the opportunity to explain why he failed to call character evidence,[53] but he declined to do so. Hence, this is not a case like Sharma,[54] where both the applicant and counsel had provided affidavits explaining counsel’s unjustifiable failure to explore the calling of evidence of good character.
[53]See Knowles (a pseudonym) v The Queen [2015] VSCA 141, [144]–[145] (Ashley, Redlich and Priest JJA).
[54]Sharma v The Queen [2011] VSCA 356.
Although it might have been expected that counsel would have sought a pre-emptive ruling had he entertained doubts about whether the introduction of character evidence might have (for example) provoked an attempt at rebuttal,[55] there is a limit to the extent that this Court can — or be expected to — investigate such matters. The Court’s function is not inquisitorial.
[55]See DPP v Newman (a pseudonym) [2015] VSCA 25; Saw Wah v The Queen [2014] VSCA 7.
One might speculate on the reasons why counsel failed to call character evidence, but to do so would not be proper. Based on the material — or, perhaps, lack of material — bearing on the failure to call evidence of good character, despite entertaining misgivings, I am unable to conclude that counsel’s failure might not have been the result of a rational forensic decision.
McLEISH JA:
I agree, for the reasons given by Osborn JA, that this application for leave to appeal should be refused.
In particular, I agree that the applicant has not discharged the onus of establishing a substantial miscarriage of justice by reason of the fact that evidence of the applicant’s good character was not led. For the reasons given by both Osborn JA and Priest JA, the Court can only speculate as to the reasons underlying the course
that was taken and the possibility of a rational explanation for not leading the evidence has not been excluded.
As to the possibility that an advance ruling as to the admissibility of rebuttal evidence could, and should, have been sought, again the applicant has not demonstrated that there could not have been a rational forensic explanation for the course taken. In the circumstances, nothing more is established than that the trial could have been conducted differently.[56]
[56]TKWJ v The Queen (2002) 212 CLR 124, 130 [14].
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