Yeates (a pseudonym) v The King
[2023] VSCA 72
•4 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0062 |
| JOHN YEATES (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 March 2023 |
| DATE OF JUDGMENT: | 4 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 72 |
| JUDGMENT APPEALED FROM: | [2022] VCC 501 (Judge Smallwood) |
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CRIMINAL LAW – Conviction – Appeal – Incest – Evidence – Admissions – Whether accused made admission – Evidence of admission – Whether evidence should have been left to jury as evidence of admission – Substantial and compelling reasons for judge to give direction not sought by counsel – Miscarriage of justice caused by failure to give direction – Appeal allowed – Retrial ordered.
Jury Directions Act 2015, ss 15 and 16.
Burns v The Queen (1975) 132 CLR 258 applied. Gull v The Queen [2017] VSCA 153, Dunn v The Queen [2017] VSCA 371, referred to.
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| Counsel | |||
| Applicant: | Mr R Nathwani | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Applicant: | Stephen Peterson Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
NIALL JA
KAYE JA:
On 6 April 2022, following a five day trial in the County Court, the applicant was found guilty of three charges of incest. On 8 April 2022, following a plea hearing, he was sentenced to a total effective sentence of nine years’ imprisonment, with a non-parole period of five years.[1]
[1]DPP v Yeates (a pseudonym) [2022] VCC 501.
The applicant now seeks leave to appeal against his convictions. His proposed ground of appeal is as follows:
A substantial miscarriage of justice occurred as a result of the evidence [given] by [the complainant’s mother] in relation to the applicant ‘smacking the bare bum’ being left to the jury as capable of amounting to an admission.
Particulars
The evidence should not have been left to the jury as capable of amounting to an admission. The jury should have been directed that the evidence was not capable of amounting to an admission by the applicant, and therefore could not be used as an admission.[2]
[2]In his application for leave to appeal, the applicant advanced a second proposed ground of appeal that the jury’s verdicts were unreasonable or unable to be supported having regard to the evidence. This proposed ground of appeal was, however, abandoned shortly prior to hearing.
Background
The complainant in respect of all three charges was the applicant’s stepdaughter. The applicant commenced a relationship with the complainant’s mother, AB, in about 2009. The complainant’s mother moved to Australia, married the applicant, and subsequently had a child with him. Sometime later, when the complainant was six (almost seven) years of age, she came to Australia, joining her mother, the applicant and her half sibling.
The prosecution case at trial was that the applicant took on a parenting role with the complainant. On the first few occasions that he disciplined the complainant, he took her into a bedroom where he instructed the complainant to take down her pants and he smacked her bare buttocks as she stood. After the first few occasions, the applicant began digitally penetrating her during that discipline (uncharged acts).
The offending took place in two addresses that the family lived in, and were ‘uncountable’ in number.
On one occasion, the applicant was alone with the complainant and he slept in her bed with her. She said that she had a sore back and the applicant offered to give her a massage. The applicant instructed the complainant to remove her clothing and the applicant used oils to massage her back before he began digitally penetrating her vagina. This lasted about five to 10 minutes (charge 1).
On another occasion, while the applicant was alone with the complainant, the applicant was scolding the complainant for leaving her dirty laundry on the floor. The applicant took the complainant to his bedroom, removed her pants, smacked her and digitally penetrated her vagina (charge 2).
On yet another occasion, the complainant was in the bath and threw something in the direction of the washing machine. The complainant got out of the bath and attempted to get behind the washing machine to retrieve the item. The applicant heard a loud bang and came into the bathroom holding what the complainant believed to be butter. The applicant removed the complainant’s towel, smeared his fingers in the butter and digitally penetrated the complainant’s vagina (charge 3).
The applicant was interviewed by police in relation to the complainant’s allegations. In his record of interview, he denied each of the allegations made against him. He said that he had smacked the complainant on the bottom and on her leg. He denied, however, that he had ever smacked the complainant on her bare bottom.
The trial
The complainant gave evidence[3] in conformity with the prosecution case. At trial, the prosecution called AB; a friend of the complainant, GJ, to whom the complainant had made a complaint that the applicant had digitally penetrated her vagina when she was about eight years of age; GJ’s mother; a school counsellor to whom the complainant and GJ had reported the applicant’s alleged offending; and the informant. The prosecution also tendered the applicant’s record of interview.
[3]By way of pre-recorded VAREs conducted in September 2018 and January 2020, and in a special hearing conducted in June 2021.
Having regard to the limited issues raised by the applicant’s proposed ground of appeal, it is not necessary to summarise all of the evidence called by the prosecution. It is only necessary to refer to some of the evidence given by AB.
AB gave evidence of an incident occurring before Christmas in 2013, which led to AB’s sister (the complainant’s aunt) telling AB that the applicant had sexually interfered with the complainant. AB gave evidence that her sister told her that the applicant was ‘fingering’ the complainant. AB said that, as a result of receiving this information, she spoke to the applicant. In evidence-in-chief, she was asked and answered the following question:
All right. What did you say to him?---I did ask him about it and what’s happened, and he did mention that he did not – he did not do that. Maybe [the complainant] has misunderstood when [the applicant’s] smacking [the complainant] in the bottom, probably his hand sort of just slip. But it’s nothing, it’s nothing about fingering, it’s just smacking the bare bum.
No further questions were asked of AB about her conversation with the applicant (either in evidence-in-chief, cross-examination or re-examination).
Prior to the conclusion of the prosecution evidence, the judge asked counsel whether the charge he would be required to give was ‘just a standard charge in this sort of matter’. In response, defence counsel[4] referred to what he said were standard directions about complaint evidence. Defence counsel appeared to submit that the judge should charge the jury that all the complaint evidence came from the complainant and ‘There’s no corroborative evidence; it all depends upon her’. There was then the following exchange between defence counsel and the judge:
[4]Not counsel who appeared for the applicant in this Court.
HIS HONOUR: I don’t know about that. The admission to the mother of smacking on the bare bottom, that’s corroborative, I would have thought. Does your client deny it in the interview?
[DEFENCE COUNSEL]: It doesn’t – yes.
HIS HONOUR: It’s corroborative.
[DEFENCE COUNSEL]: Yes, he does – he denies her bare-bottom smack.
HIS HONOUR: Yes. Well, yes, so it’s corroborative. But I mean, I don’t [want to] go down that path. I mean, you can say there’s no supporting evidence if you want to, and I’ll tell them there is. I think you’d better wait until you see what [the Prosecutor] has to say.
[DEFENCE COUNSEL]: No, no, no.
HIS HONOUR: I think that that’s – I mean, I think – yes. The corroborative matters - - -
[DEFENCE COUNSEL]: There probably needs - - -
HIS HONOUR: That’s verging on an admission. Where he’s denied it in the record of interview and the Crown aren’t running any form of consciousness-of-guilt, that’s almost an admission. And to give the explanation, he gives an innocent explanation: that she’s misunderstood what happened. So that’s in before the jury, so that’s got to be an admission of sorts, doesn’t it?
[DEFENCE COUNSEL]: Yes, well.
HIS HONOUR: No, no. Well - - -
[DEFENCE COUNSEL]: It probably – yes. Probably.
HIS HONOUR: I think it is. I’m not going to go to admissions and confessions because the Juries Directions Act makes a mess of that, because it’s not something you have to prove beyond reasonable doubt.
After the prosecution closed its case, defence counsel announced that he proposed to call no evidence. Defence counsel then referred to the Jury Directions Act 2015 requiring counsel and the judge ‘to have a conversation about the jury direction’.[5] The judge responded by saying that he thought they had already had that discussion, and then asked counsel whether there was anything further that he wished to talk about. There was some further discussion, but nothing more was said about the question of whether the applicant had made any relevant admission to AB, or any directions that might need to be given about admissions. Following this discussion, the prosecutor, and then defence counsel, addressed the jury.
Prosecution address
[5]See ss 11 and 12 of the Jury Directions Act.
In the course of summarising AB’s evidence, the prosecutor said:
Later on [AB] found from the aunt, as she put it, that [the applicant] is fingering [the complainant]. She goes to confront him again. She again confronts him, he says: “He did not do that. Maybe [the complainant] has misunderstood when [the applicant’s] smacking [the complainant] in the bottom, probably his hand sort of just slip. But it’s nothing, it’s nothing about fingering, it’s just smacking the bare bum”. That’s Mum’s evidence.
A little later, the prosecutor, when dealing with the applicant’s record of interview, told the jury that the applicant admitted to smacking the complainant; denied sexually touching her; and denied ‘smacking her on the naked bottom, somewhat in contrast to what [AB] gave evidence he said’.
Having made these submissions to the jury, the prosecutor then said:
So if you accept from [AB] that the accused’s words were as I’ve just described, you might think that the accused’s words are what lawyers call confession avoid.[6] You admit a little bit of something but deny the most important part. He seems to say, if you accept that those words were said – he seems to say that he did smack [the complainant] on the bottom. He seems to say his hand might have slipped, he denies I guess intentionally fingering her, but he admits smacking her on the bare bottom, which is not what he admits to in the record of interview. So there’s no denial in that comment or indeed in the interview about him actually smacking her and he admits apparently, depending on how you interpret those words that he says and assuming you accept that he said them – he admits of a possibility of his finger slipping into her vagina. If you accept that, then he’s admitted the physical part of one of the crimes but denies the intention, saying it’s an accident. I suggest it won’t take much for you to reject his explanation that this may have been an accident that might have occurred once. I’ve used the phrase “admission”. I just want to be totally clear about this and you need to be very careful, because if it is an admission to part of the offending it’s not an admission to an actual charge on the indictment. Remembering that [the complainant’s] evidence is that these things happened on many occasions, you can’t then take that admission and say, “Well, that must buttress Charge 1”, or Charge 2 or Charge 3, because it’s not necessarily an admission. It’s an admission of some sort to some sort of conduct, but that’s as high as it goes. You can’t use it to add to the particular incident.
Defence address
[6]The transcript of the trial records the prosecutor as saying ‘confession avoid’, but in this Court the parties agreed that the prosecutor actually said ‘confess and avoid’.
In his address, defence counsel said that, when you looked at what AB actually said in her evidence, it was not clear that the applicant had said anything more to AB than that he denied the allegation made against him. Defence counsel submitted:
It really is not clear on [AB’s] evidence if she’s saying [the applicant] said anything beyond he did not do that. And the rest of that recounting of that conversation, “Maybe [the complainant] misunderstood”, you might think is that what she is thinking? Is that her surmising? Is that just something she is trying to understand as an explanation for the allegation as opposed to the words [the applicant] used? And to use it in the way the Crown suggests, you’d have to be satisfied what words [the applicant] before you could use it in the way they want. If the Crown is seeking to rely on fine textual readings of what words and the order of words used eight years ago, that is frankly cause for concern. And that reading is clearly, I submit and you might think, not what [the applicant] was saying in 2012 and not what he is saying in 2018 in his detailed record of interview.
The judge’s charge
In his charge, the judge summarised aspects of the evidence given at trial. In the course of summarising AB’s evidence, and after referring to her evidence of the applicant’s alleged admission, the judge said:
Now, comment from me, counsel have put different interpretations on that. I suggest to you that you watch it if you are concerned about that. The Crown put it on the basis that that is her saying what he said, that is that he did smack her on the bare bum and his finger must have slipped. The defence are saying that might not be what it is, it might be her saying her own thoughts, that he had been smacking her on the bare bum. Can I just comment, from me I suggest watch it and make your own conclusions as to what she is actually saying.
Applicant’s submissions
The applicant submitted that it was not open to the jury to conclude from AB’s evidence that the applicant made any relevant admission to AB. Alternatively, if it was open to the jury to find that the applicant had made some relevant admission to AB, in accordance with the High Court’s decision in Burns v The Queen,[7] the judge needed to direct the jury that, before the jury could use AB’s evidence of her conversation with the applicant, the jury needed to accept that:
•the applicant actually made the alleged admission in the terms alleged by AB; and
•the applicant’s alleged admission was truthful.[8]
[7](1975) 132 CLR 258 (‘Burns’).
[8]Ibid 262.
The applicant submitted that the judge’s failure to give such a direction to the jury gave rise to a substantial miscarriage of justice.
Respondent’s submissions
The respondent submitted that, having had the benefit of hearing and seeing AB give evidence, it was open to the jury to accept that the applicant had made a relevant admission to AB about having smacked the complainant on the bare bottom and having possibly penetrated her vagina with his finger.
As to the need for the trial judge to give a Burns direction, the respondent noted that no such direction was requested by defence counsel at trial. Relying upon ss 15 and 16 of the Jury Directions Act, the respondent submitted that the trial judge was not permitted to give the direction which the applicant now submits should have been given, unless there were ‘substantial and compelling reasons’ for doing so. The respondent then contended that there were no substantial and compelling reasons for giving the direction which had not been sought at trial. In support of that contention, the respondent advanced the following submissions:
(1)First, AB’s evidence was not led in respect of any of the three charges. It was only relied upon by the prosecutor in respect of the uncharged acts of smacking the complainant on the bare bottom.
(2)Second, proof of whether the applicant smacked the complainant on her bare bottom did not turn solely on the applicant’s alleged admission. In both of her VAREs, and in the special hearing, the complainant maintained her account that the applicant frequently smacked her on her bare bottom.
(3)Third, the prosecutor ‘unequivocally warned the jury in his final address that even if the evidence of [AB] contained an admission to certain conduct, it could not be used to prove any of the charged acts’.
(4)Fourth, in charging the jury, the trial judge, either directly or by reference to the prosecutor’s address, gave the substance of a Burns direction.
(5)Finally, the applicant’s trial counsel’s decisions not to ‘clarify’ AB’s evidence, and not to seek a Burns direction, can be seen to be sound forensic decisions made by defence counsel in the circumstances of the trial. It was submitted that to seek a Burns direction would have ‘foreclosed’ the interpretation of AB’s evidence contended for by the defence at trial; and may have had the effect of elevating the evidence in the minds of the jury when it was not a ‘major plank’ of the prosecution case.
Consideration
Was it open to the jury to be satisfied that the applicant made an admission to AB?
At the risk of repetition, the issue of whether the applicant made any relevant admission to AB falls to be determined by considering the one piece of evidence given by AB in evidence-in-chief, to which we have already referred, namely:
I did ask him about it and what’s happened, and he did mention that he did not – he did not do that. Maybe [the complainant] has misunderstood when [the applicant’s] smacking [the complainant] in the bottom, probably his hand sort of just slipped. But it’s nothing, it’s nothing about fingering, it’s just smacking the bare bum.
In context, AB plainly gave evidence that the applicant denied intentionally digitally penetrating the complainant’s vagina. From a mere reading of the transcript, one might construe AB’s answer to also include a complete denial by the applicant of any digital penetration of the complainant. As to smacking the complainant on the bare bottom, again, from a mere reading of the transcript, AB’s answer might be construed as evidence of an admission by the applicant of having done this; alternatively, AB may only have been hypothesising about what might have occurred between the applicant and the complainant which led to the complainant’s complaint.
From the trial judge’s comment to the jury (about which no exception was taken by either counsel at trial), it would appear that the trial judge thought that any ambiguity in AB’s answer could be resolved by the jury watching the recording of AB’s evidence. We have no reason to doubt that that may be so. We have not had the benefit of seeing any recording of AB’s evidence. No party invited us to attempt to obtain a copy of the recording or to view it.[9] In the circumstances, we are unable to conclude that it was not open to the jury to be satisfied that the applicant had at least admitted smacking the complainant on the bare bottom.
[9]As to the appropriateness of an appellate court watching a recording of a witness’s evidence at trial so as to make its own independent assessment of whether the evidence led at trial could support a guilty verdict, see Pell v The Queen (2020) 268 CLR 123, 144 [36].
It follows that the complaint, made expressly in the applicant’s proposed ground of appeal, that AB’s evidence in relation to the applicant smacking the complainant on the bare bottom should not have been left to the jury as being capable of amounting to an admission of that fact by the applicant, is not made out.
Were there substantial and compelling reasons for giving a direction about the alleged admission?
Notwithstanding the stringency of the language in ss 15 and 16 of the Jury Directions Act,[10] we are satisfied that there were substantial and compelling reasons for the judge to give the jury specific directions about the applicant’s alleged admission made to AB. AB’s evidence about her conversation with the applicant required the judge to direct the jury that before they could use any alleged admission against the applicant:
•first, they had to be satisfied that, in her evidence, AB was in fact purporting to recount what the applicant had said to her — and not that she was merely explaining or hypothesising as to how the complaint made by the complainant might be reconciled with the applicant’s denial that he had indecently assaulted the complainant;
•second, if the jury concluded that AB was in fact recounting what she recalled the applicant as having said to her, the jury would need to be satisfied that AB’s evidence of what she claimed the applicant had told her was reliable; and
•third, the jury needed to be satisfied that any admission, which the jury concluded was made by AB to the applicant, was itself truthful.
[10]As to which, see Gull v The Queen [2017] VSCA 153, [48]; Dunn (a pseudonym) v The Queen [2017] VSCA 371, [78]-[86].
In a case which otherwise rested solely upon the complainant’s evidence and the evidence of her statements to others, the alleged admission which the prosecution relied upon was a very significant piece of evidence. If the jury were to accept that a real admission had been made by the applicant to AB, that evidence provided substantial corroboration of the complainant’s evidence. The evidence could have been used by the jury to undermine the credibility of the applicant’s denials in his record of interview. Equally, acceptance that the applicant had made a relevant admission made the complainant’s account of what had happened to her all the more likely.
It is not to the point that some of what the prosecutor said in his final address can be construed as the prosecution only relying upon the alleged admission in support of an unspecified uncharged act. Parts of the prosecutor’s address plainly asserted reliance upon the alleged admission as establishing the actus reus of at least one of the three charges (most probably charge 2).
Contrary to the respondent’s submissions, the judge did not give the equivalent of a Burns direction to the jury, and nothing said by the prosecutor in his final address (on its own, or combined with what the judge said in his charge) satisfied the requirement for a Burns direction. Moreover, as we have said above, in the circumstances of the present case, a more detailed form of direction than that specified in Burns (more particularly, of the kind identified above) was required to be given by his Honour to the jury, having regard to what was said by the prosecutor in his final address.
Finally, we reject the respondent’s submission that there was a rational forensic reason for defence counsel not to request a direction of the kind that should have been given. Contrary to the respondent’s submission, such a direction would not have ‘foreclosed’ the interpretation of AB’s evidence contended for by the defence at trial. The direction could (and should) have been given as a direction of law on the way in which the jury was required to consider an alleged admission, noting the parties’ diametrically opposed submissions to the jury about how they should interpret AB’s evidence.
Moreover, the direction could have been given, during the course of the charge, at the time the judge made his comment about watching AB’s evidence, without elevating the issue in a way that would have been unhelpful to the applicant.
It follows that, the judge not having given the direction which substantial and compelling reasons dictated should have been given, the applicant’s proposed ground of appeal must be upheld. The failure to give the direction was an error which resulted in a substantial miscarriage of justice.
Conclusion
We will make orders granting the applicant leave to appeal, allowing the appeal, setting aside the applicant’s conviction and sentence, and ordering a retrial.
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