Court of Appeal (Vic)|2013-11-21|Before: Priest JA, As Priest JA, Maxwell P

Choudhary v The Queen [2013] VSCA 325 (21 November 2013)

CRIMINAL LAW - Appeal - Conviction - Sexual penetration of child under 16, indecent act with child under 16 - Convicted on four charges, acquitted of two - Whether verdicts inconsistent - Whether verdicts otherwise unsafe and unsatisfactory - Alleged admissions by appellant - Whether admissible - Whether judge's directions adequate - Crown concession of error - Verdicts not unsafe - Retrial ordered - Evidence Act 2009 (Vic) s 137.

1 I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

2 It is important to point out that it was Priest JA who first raised with counsel the question of the alleged admissions and the adequacy of the judge's directions on that subject. Only then was the point taken by counsel for the appellant, and application subsequently made for leave to add a new ground of appeal. In the event, that is the only ground of appeal which has succeeded. The Crown's prompt and unqualified concession of error is to be commended, as his Honour has said.

3 As Priest JA has pointed out, a matter of such importance to this trial should have been the subject of careful attention by both defence and prosecution, in order that the trial judge be given the necessary assistance. That is, of course, the policy which underpins the requirement in s 11 of the Jury Directions Act 2013 (Vic), that trial counsel specify what directions are required.

4 Lasry AJA has drawn attention to the fact that the inadequacy of the directions has resulted in a new trial being ordered, with all of the disadvantages which that carries for the participants and for the criminal justice system. This is, as his Honour points out, another example of the vital importance of the Charge Book, developed and maintained by the Judicial College of Victoria with substantial input from both appellate and trial judges. Recourse to the relevant part of the Charge Book by the participants in this trial would in all likelihood have resulted in this fatal error being avoided.

5 In written submissions provided following the conclusion of oral argument on the appeal, the respondent has conceded that, as a result of the failure of the trial judge to give adequate directions concerning the appellant's alleged admissions, there has been a substantial miscarriage of justice and his convictions should be set aside.

6 That concession is, in my opinion, a fair and proper one to have been made. The Court should act on it. I would quash the convictions and sentences imposed on each charge on the indictment and order a retrial.

7 It is necessary that I state my reasons for accepting the respondent's concession. Moreover, since success on two of the grounds of appeal would have led to verdicts of acquittal, it is also necessary that I provide reasons for why those grounds must fail.

8 On 17 December 2012, following a six day trial in the County Court, a jury convicted the appellant of two charges of indecent act with a child under 16[1] (charges 1 and 2) and two charges of sexual penetration of a child under 16[2] (charges 4 and 6). The appellant was acquitted of a further two charges of sexual penetration of a child under 16 (charges 3 and 5). Following a plea, the appellant was sentenced to a total effective sentence of four years and six months' imprisonment upon which was fixed a non-parole period of two years and six months' imprisonment.

9 A judge of this Court granted the appellant leave to appeal against conviction on 21August 2013 on two grounds:

That the guilty verdict in relation to charge 4 is inconsistent with the acquittal in relation to charge 5.
That the guilty verdicts in relation to charges 4 and 6 are unsafe and unsatisfactory.

10 During the course of oral argument on the appeal, however, it became plain that there was a serious doubt as to whether the trial judge's directions concerning admissions said to have been made by the appellant were adequate. As a result, further written submissions were invited from the parties. The appellant sought to argue two further grounds. In so far as leave is required to rely on those grounds, I would grant it. The further grounds are:

3A A substantial miscarriage of justice has occurred because of the admission of alleged admissions in circumstances where the probative value of that evidence was outweighed by unfair prejudice to the applicant.

3B A substantial miscarriage of justice has occurred because of the failure of the trial judge:

(a) to withdraw from the jury's consideration evidence of the alleged admissions;

(b) to properly direct the jury as to what use could be made of the alleged admissions ;

(c) to give an Edwards direction about the use the jury could make of the prosecution contention that the applicant's 'nodding' amount to an implied admission of guilt.

11 As I have said, in a perspicuously fair written submission by the Crown in response, counsel accepted that the trial judge's directions to the jury did not deal adequately with evidence of supposed admissions by the appellant. That concession was, as I have said, properly made.

12 The appellant is married to SC. JM, the complainant, is SC's younger sister, and was aged 12 to 13 years at the time the offences allegedly took place. The appellant was at relevant times 23 to 24 years of age. He, SC and their son (an infant) spent some time throughout 2009, and 2010 to 2011, living with SC's mother, MM. Also living at the house were SC's sisters JM, TM and her brother RM.

13 It was the prosecution's case that over a period of time the appellant sexually assaulted JM, first by touching her breasts and later by penetrating her vagina and mouth with his penis. To establish the offending the prosecution relied upon the evidence of JM contained in two VAREs[3] and given at a special hearing.[4] The prosecution also relied upon the evidence of MM and TM that the appellant made admissions that the allegations were true.

14 The defence case was that the offending alleged by JM did not occur; and defence counsel raised the possibility that JM had fabricated the offences at the instigation of her mother, MM, in an attempt by MM to extort money from the appellant. With respect to charge 3 (upon which the appellant was found not guilty), which had as its focal point TM's 16th birthday party, the defence also relied upon the evidence of SC and TM to establish that JM's version of events was not true. As to charge 6, the defence also relied upon the evidence of SC and the appellant's friends, Mr Singh and Ms Roach, to establish that there was no possibility that the appellant could have had sex with JM on the day as alleged.

15 The issue for the jury on each charge was whether the sexual activity had occurred.

16 Charges 1 and 2 were said to have occurred between 13 November 2009 and 24 March 2010 when the appellant and JM were at MM's home. MM and SC (then the appellant's fiancé) were at bingo. JM claimed that the appellant gave her some wine and fondled her breasts. Later JM was watching a video in her sister's room. The appellant came in, lay behind her and again fondled her breasts, despite her protests. This activity was interrupted by JM's mother and sister returning home.

17 A verdict of not guilty was returned on charge 3, which was alleged to have occurred around 26 May 2010, TM's 16th birthday. JM claimed that she and the appellant went for a drive and parked in a street. They had penile-vaginal sex in the back of the car before returning to the party.

18 Charges 4 and 5 related to events between 17 December 2010 and 22 January 2011, when the appellant and his wife, SC, were sleeping in the lounge room of MM's house on a mattress. JM was also sleeping in the lounge room as it was too hot in her bedroom. It was claimed by JM that the appellant woke her and asked her to 'give him head'. The complainant performed oral sex on the appellant, but stopped halfway through and went back to bed (charge 4). After JM returned to her bed, the appellant got into bed with her and told her to turn over so that he was behind her. He then commenced to have sex with JM, but stopped after putting his penis 'halfway inside there' as he did not have a condom and it was hurting the complainant (charge 5, which resulted in acquittal).

19 The activities founding charge 6 occurred on 22 January 2011. JM slept in the lounge room after a party at MM's house that had been attended by a number of family and friends. A friend of the complainant, Georgia, stayed the night. Two of the appellant's friends also stayed the night and slept in the lounge room. It was alleged that the appellant woke JM when it was 'dark, getting light' and told her to follow him. They went first to her bedroom, then to the laundry and last to the garage, where they had penile-vaginal sex. The appellant ejaculated. He wore a condom, which he hid after they had finished having sex. The complainant then returned to bed in the lounge room and went to sleep.

20 Cross-examination of JM in relation to charges 4 and 5 elicited that she could not sleep in her room because her waterbed mattress was broken, there was not enough space in her room for a mattress, and her sister would not like her sleeping in her room. JM was on a separate mattress from the appellant and his wife. She gave the appellant oral sex while his wife was asleep right next to him. The complainant said that there was talking and some movement leading up to the acts. Her brother, sister and mother were also home. She conceded that anyone could have walked in. JM gave evidence that the appellant tried to have sex with her on her mattress, next to the mattress his wife was asleep on, but stopped because he did not have a condom. She further gave evidence that the reason he did not go to get a condom from a bag in his room was because he did not want to wake his wife up. (At the risk of repetition, the jury found the appellant guilty in relation to charge 4, oral sex, but not guilty of penile-vaginal sex on the mattress.)

21 With respect to charge 6, under cross-examination JM gave evidence that on that night there were a lot of people at the house and people were up quite late, drinking. The appellant, his wife, his two friends, JM's brother and her friend, Georgia, were all to sleep in the lounge room. JM went to sleep first, and was woken up by the appellant when it was 'dark, getting light'. She gave evidence that at this time others were asleep in the lounge room, and no one else was awake. JM said that after he woke her, the appellant first took her to her bedroom, then to the laundry and finally to the garage, opening and closing doors along the way. She said they had sex in the garage, keeping their clothes on. The sex went for a minute, and then the complainant got up and walked back inside. (A later police search conducted on 26 January 2011 found no condom.)

22 In cross-examination JM agreed that she had made allegations of sexual assault against two other men, but denied that her mother had tried to blackmail those men. She denied saying to TM that she was embarrassed that her mum was blackmailing all these Indian men for money, and denied any knowledge of her mother trying to have the charges against the appellant withdrawn and said she had never told her mother to do so. JM denied sending SC a text message saying, 'Mum made me do it'. Following a short break, however, JM said that she did remember sending a text message saying, 'Mum made me do it', but she said that the text message was a mistake.

23 Bianca Roach gave evidence inconsistent with the complainant's account of events surrounding those relevant to charge 6. She and her husband, Karanjeet Singh, stayed over at MM's house on the weekend that the alleged offences took place. Ms Roach gave evidence that she slept in the lounge room on a mattress with her husband; the appellant and his wife slept on a separate mattress; and JM had her own mattress. The configuration was that JM lay to one side of Ms Roach and Mr Singh, and the appellant and his wife were on the other side. Ms Roach gave evidence that she went to bed at around 6:00am to 7.00am, but she has a sleeping disturbance, so that it takes her around two to three hours to fall to sleep. She also gave evidence that she saw the appellant's wife awake prior to going to sleep. At no stage did she notice anything untoward happening between the appellant and JM.

24 Karanjeet Singh also gave evidence inconsistent with JM's account relevant to charge 6. He was an old friend of the appellant, and they were catching up after seven or eight months of not seeing one another. They were up all night talking, and he went to bed at some point between 6.00am and 7.00am. He did not at any stage see the appellant approach JM while she was lying on her mattress. It took a while for him to fall asleep.

25 SC gave evidence in the defence case. She said that she went to sleep at 2.00am. SC was, she said, also sleeping on a mattress in the lounge room. She woke up between 6.00am and 6.30am as it was time for her son's morning bottle. When she did so, she saw the appellant, Roach and Singh talking in the kitchen. She stated it was getting light, although still a bit dark.

26 On 25 January 2012 MM was advised by her daughter, TM, that she had just been told by a friend, Monica, that JM and the appellant had been having sex. The complainant had disclosed the matter over the internet to a male named Harmeet, to whom she was not particularly close. Harmeet was Monica's boyfriend. The communication had been one year prior. MM immediately confronted JM. She initially denied any sexual activity, but when her mother indicated she was going to raise the matter with the appellant, JM admitted that the rumour was true.

27 Very important to the resolution of the appeal is what happened next. Immediately after JM was confronted, the appellant's wife, SC, was informed by MM of what had transpired. SC said she could not 'remember exactly' what she said to the appellant, but it was 'very similar' to, 'is it true what mum is telling me, that you've been having sex with my younger sister?'. The appellant, according to SC, did not assent to the allegation, but simply looked down. TM gave evidence that the appellant just stood there and did not say anything for about five minutes, but then said, 'yeah, it is'. MM gave evidence that she confronted the appellant in the kitchen and said, 'so this is all true is it?'. She said that he looked down at the ground and nodded his head.

28 When interviewed by police on 6 April 2011, the appellant made no comment. He did not give evidence at trial.

Inconsistent and unsafe and unsatisfactory verdicts

29 Since a finding by this Court that the verdicts on charges 4 and 6 are unsafe and unsatisfactory would lead to acquittal on those charges, it is convenient to first deal with grounds 1 and 2.

30 Verdicts which are inconsistent render convictions unsafe and unsatisfactory.[5] Much of the learning of the subject was set out by Gaudron, Gummow and Kirby JJ in MacKenzie.[6] Their Honours conveniently set out six propositions, which I need not

repeat.[7] For present purposes, I take the position to be that if there is a reasonable and logical means by which the jury may have arrived at their conclusions, then two verdicts are not inconsistent. But if there is no rational explanation for apparent inconsistency, a verdict of guilty will be set aside as unsafe or unsatisfactory.

31 The appellant argued that the acquittal on charge 5 was inconsistent with the guilty verdict on charge 4. It was submitted that 'if the jury did not find, beyond a reasonable doubt, the guilt of the [appellant] in relation to charge 5, then there is no rational or logical explanation for the verdict of guilty in relation to charge 4'.

32 Despite the appellant's contentions, however, in my opinion the differing verdicts on charges 4 and 5 can be reconciled. The quality of the evidence on charge 5 was, in my view, of a fundamentally different nature to that relating to charge 4. On my reading of it, the evidence of the oral sex, charge 4, was clear and unambiguous. By contrast, however, with respect to the activity going to charge 5, JM repeated a number of times that the appellant 'tried' to have sex with her, before eventually asserting that his penis entered her 'halfway inside there'. Where the only evidence flowed from JM, and she appeared to be uncertain as to whether the appellant's penis entered her, it is reasonable that a jury might fail of satisfaction beyond reasonable doubt that there had been sexual penetration. Of course, this would not necessarily carry with it the concomitant that the jury disbelieved the complainant, but merely that the quality of the evidence on charge 5 was lacking.

33 It is also claimed that the verdicts on charges 4 and 6 are unsafe and unsatisfactory. The principles to be applied when such a claim is made were conveniently set out by Maxwell P in R v Klamo.[8] I need not spell them out in detail. Asking myself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty on charges 4 and 6, in my opinion it was. There was no evidence which obliged the jury to arrive at verdicts of not guilty.

34 That is not to say that there were not frailties in the evidence. But other than the high risk of detection inherent in the acts underlying charge 4, accepting JM's account there was sufficient evidence for the jury to find the appellant guilty of that offence. The jury did not have contradictory evidence from the appellant. And although, of course, his failure to give a contradictory account was not evidence against him, it made more easy the acceptance of JM's evidence.[9] A verdict of guilty was open on charge 4.

35 The verdict on charge 6 has given me some pause, but in the end I have concluded that the verdict of guilty was open to the jury. If it were accepted, as it was put by the prosecution, that the offending happened in the early hours of 22 January 2011, on one view the case against the appellant was weak. The evidence suggested that the appellant was with Mr Singh for most of the early hours and they were only going to sleep as the sun came up. Mr Singh and Ms Roach also gave evidence that it took them a while to get to sleep. SC said she was up early making a bottle for her son. Nobody noticed any suspicious activity. According to JM, however, the offending occurred as it was dark, getting light.

36 A verdict of guilty on charge 6 required acceptance of JM's evidence. The jury had the advantage of seeing and hearing her give her account. They were entitled, in my view, to act on it. JM's evidence was that the sexual penetration only took a few minutes. A short absence may not have been noticed, particularly if people were in the process of going to sleep or were already asleep. And again, there was no contradictory account from the appellant.

38 At trial, evidence was led - without objection - of admissions purportedly made by the appellant when confronted with the allegations. Admissions relied upon the prosecution included both an oral admission, and admissions by conduct. The admissions by conduct - depending on the jury's view of the evidence - might have been constituted by the fact that, as the complainant's mother, MM, said, the appellant had 'nodded' his head when she had confronted him; or alternatively, that, as SC said in her evidence, when she confronted the appellant he simply looked down.

39 In relation to the oral admission, TM in her evidence said that she was present for 'some of the time' when the appellant's wife, SC, confronted him with the allegations. TM said:

She's just saying, like, well how could you? Like, What's wrong with you, Why'd you do that, and everything. All the questions you'd, I suppose, usually ask.

The appellant was said to have responded in the following manner:

She said, Is this true? And he just stood there and he didn't say anything. But then, he just stood there for, like, five minutes, and then he said to her, 'Yeah, it is'. And then they went out to the back, [SC] and [the appellant] went out to the back, backyard.

In cross-examination, TM said that she was present and heard her sister SC ask the question, but said 'there was no answer really'.

40 Next, MM, the complainant's mother, gave evidence that she said to the appellant, 'So this is all true; is it?'. She said the appellant, 'looked down at the ground and he nodded his head'. In cross-examination, she said she did not hear the appellant say anything.

41 In his final address, the prosecutor adverted to the significance of the 'evidence of the accused's man response when allegations were put to him as they were in this case his wife and by her mother'. As to the appellant's response to the question asked by MM - 'It's all true, is it?' - and his nodding of the head, the prosecutor contended that that was a 'clear admission of guilt on his part'. That admission by conduct was said to be supplemented by the oral admission made to TM and was evidence of a 'straightforward admission of guilt on the part of the accused man'.

42 When charging the jury, the trial judge put the basis upon which the prosecution relied upon the alleged admissions:

The Crown says that the accused made clear admissions to this offending when confronted by his wife and mother in law.

To this point the trial judge had not given the jury any direction about the nature of admissions or how the jury should treat them.

43 Later in his charge, when directing the jury as to the evidence capable of supporting the complainant, the trial judge said:

The evidence which is relied upon by the Crown as supportive evidence and is capable of being supportive evidence if you accept it beyond reasonable doubt, is the evidence of admissions made by the accused. If you accept that the accused made the admissions that are relied upon by the Crown in the two episodes; one verbally and one by nodding his head, then that evidence is capable of being supportive evidence of the complainant's allegations.

44 A little later, having summarised the evidence of the purported admissions, the judge directed the jury:

If you accept, beyond reasonable doubt, that the accused said these things, and that they were true, and referred to him having committed sexual offences against the complainant, then this is independent evidence from [TM] and [MM], that is capable of supporting the allegations made by the complainant. That is, the offences brought against the accused.

45 Unfortunately, the trial judge gave no further directions to the jury on the nature of, or how to use, the evidence of purported admissions. That failure has, in my view, caused the trial to miscarry.

46 In my opinion, the impugned evidence was capable of proper use by the jury as an admission or admissions against interest. It was probative of a fact in issue, and its probative value was not outweighed by any risk of unfair prejudice.[10] Thus ground 3A, which asserts that a substantial miscarriage of justice occurred 'because of the admission of alleged admissions in circumstances where the probative value of that evidence was outweighed by unfair prejudice to the applicant', cannot be upheld. Nor can it be properly contended, as ground 3B(a) asserts, that justice miscarried due to a failure 'to withdraw from the jury's consideration evidence of the alleged admissions'. But there is substance in grounds 3B(b) and (c), which contend that a substantial miscarriage of justice flowed from the trial judge's failure 'to properly direct the jury as to what use could be made of the alleged admissions', and to direct the jury about 'the prosecution contention that the applicant's "nodding" amount to an implied admission of guilt'.

47 Before going further, I should observe that the trial judge got little help from defence counsel. There are, however, two ends to the Bar table. Despite the alleged admissions being a very important aspect of the prosecution case, the judge derived no assistance from the prosecutor.[11] It is remarkable that neither counsel recognised the deficiencies in the charge and sought to correct them. And it is even more remarkable that the serious deficiencies in the charge went unrecognised until raised by this Court. The failure of defence counsel to take exception to the charge is an obstacle in the way of the appellant. But it is not one that should deny him success on this appeal.[12] As counsel for the respondent fairly submitted, 'It is accepted that in this case the supposed admission made by the appellant assumed great significance in determining whether or not the complainant's evidence should be accepted'. Moreover, having identified a number of deficiencies in the trial judge's direction, counsel for the respondent said, 'In the general circumstances of this case, therefore, it is not possible to submit that a conviction was inevitable. It follows a substantial miscarriage of justice has occurred'. It is commendable that once the problems with the charge were identified, counsel for the respondent conceded that justice had miscarried, and did not seek to uphold the convictions. That was a principled approach.

48 M M J[13] was a case which bears some similarities to the present. The applicant had been convicted of a number of sexual offences against his stepdaughter, the offending having occurred over a six year period and being constituted by a variety of different acts (including masturbation, oral sex and penile-vaginal intercourse). In the course of evidence by the applicant's wife, she said that one day she had approached the applicant and asked him, 'Are you sexually involved with [the complainant], or have you been sexually involved with [the complainant]?'. In response to the question, the applicant had 'just looked' at his wife, then looked away and continued to watch television. There was no objection to the evidence. In the final address the prosecutor put to the jury, in effect, that 'the allegation was so shocking and remarkable that if it was untrue then a vigorous denial would have been expected'. The suggestion was put that the applicant's silence was indicative of his guilt. The prosecutor did not put the precise fact or events to which the guilt attached. Rather, the prosecutor put all of the alleged conduct of the applicant to the jury and attached the implication of guilt from the applicant's silence to all of the alleged conduct. The submission was not the subject of complaint, and no direction was given by the trial judge as to its use.

49 Despite the failure to take exception, the Court of Appeal set aside the conviction in M M J. Buchanan JA, agreeing with Ashley JA, added:[14]

[54] If the jury construed the applicant's silence as an admission, notwithstanding the difficulties pointed out by Ashley JA, they could not know the acts constituting the sexual involvement the applicant had admitted, whether it was one of the acts alleged by the complainant, for example, touching her vagina or penile penetration of her vagina or some other act. Nor could they know when the admitted acts occurred. Accordingly, I do not consider that the evidence could found a verdict of guilty to any particular offence or offences.

[55] Put at its highest I consider that the evidence of the accusation and the applicant's silence could only have been admissible as evidence of the nature of the relationship between the applicant and the complainant, which may have rendered more probable the truth of the complainant's evidence of the commission of particular offences. But which offences? Probably not those committed after the accusation, and as to earlier offences, the jury could not tell when the applicant was admitting to having been sexually involved with the complainant. Even if the evidence was admissible as going to the relationship between the applicant and the complainant, the difficulties inherent in it would probably have led to its exclusion in the exercise of the trial judge's discretion.

[70] ... When a question arises whether an accusation of criminal conduct made by a person speaking on even terms was admitted or adopted as being true, a number of issues may arise: first, was an admission made at all? Second, if yes, what was the subject-matter of the admission? Third, was the admission true in whole or in part? Subject to the supervisory role of the trial judge, these are jury questions.

[79] ... An admission that the applicant had been 'sexually involved' with the complainant over some period of time could, I think, stand as relationship evidence in respect of offences allegedly committed within that period, and thereafter, even if such evidence could not stand as evidence of an admission of the commission of particular offences.

52 Ashley JA set out the directions required to be given (only some of which I reproduce):[17]

[85] The particular evidence was beguilingly simple. But its apparent simplicity concealed a considerable number of real difficulties - both factual and legal. Having analysed, particularly, the issue of implied admission, I very much doubt, regardless how the jury construed the mother's question, that it was open to it to treat the applicant's reaction thereto as evidence of an admission in respect of any particular offence. Logically, any assumed admission could have related to all or some or one of the offences said to have been committed up to the time at which the question was asked. In the end, then, I doubt that the evidence could have been used other than as evidence of the relationship that existed between the complainant and the applicant; and the jury should have been so instructed. But if that conclusion be wrong, then at least there was need for very clear instruction as to the manner in which the jury should deal with the evidence in the context of possible adoptive admission. For on a best view for the Crown, there were, as I have explained, not one but a serious of issues in that connection. They had to do with a piece of evidence which the prosecutor had highlighted, at times in extravagant language, both at the outset and towards the end of his final address.

[86] ... First, the particular evidence relied upon by the Crown, depending upon certain findings of fact, could stand as evidence of the relationship between the accused and the complainant. ...

[89] Fourth, if the jury was able to decide what form the question had taken, and approximately when it had been asked, it was open to the jury to conclude that implicit in the question was an allegation that the accused had engaged in inappropriate sexual conduct generally with the complainant in the period embraced by the question. But it was not open to the jury to treat the question as alleging that the accused had committed any one or more of the particular offences with which he was charged. The asking of the question, moreover, provided no evidence of the truth of the implied accusatory statement.

[90] Fifth, the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.

[91] Sixth, in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it. If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question. In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant - at least in the period embraced by the question, but not necessarily confined to that period - in which context the evidence of the particular charged offences could be considered.

53 In his further written submissions, counsel for the respondent suggested that an adequate direction to the jury needed to include the following:

(a) Identification of the evidence that was capable of amounting to an admission ... ;

(b) Identification of the time when such admissions were made (25 January 2011);

(e) An observation that in addition to the evidence being an admission of guilt to certain offences, or even if the jury concludes no admission was made, the evidence could be used as relationship evidence; and

(f) Appropriate directions on relationship evidence in the circumstances of this case.

54 Save to say that the appellant's alleged admissions were 'capable of supporting the allegations' of the complainant, the judge gave the jury no instruction on what evidence was capable of establishing that an admission had been made, or how to use the evidence if satisfied that an admission or admissions had indeed been made. The supposed admissions were such an important aspect of the prosecution's case, and their potential for misuse so great, that it cannot be concluded that the there has been other than a substantial miscarriage of justice flowing from the absence of necessary directions.

55 Upon a retrial, the judge will be required to isolate the evidence which potentially might constitute an admission. Thus, there is the appellant's oral answer, 'Yeah, it is', given in answer to the question 'is this true?'. Then there is the appellant's nodding of the head, after the question, 'so this is all true is it?'. Lastly, there is the appellant's looking down in silence (on SC's version) when confronted.

56 As a minimum, the judge will need to direct the jury that before they can use it (or them) in proof of guilt, they must be satisfied that in the first place the appellant in fact made the claimed admission they are considering (oral, nodding or silence), and that it was true.[19] As part of any such direction, the trial judge will need to instruct the jury as to what might be the 'this' that the appellant, in one form or another, allegedly has acknowledged as true.[20] Unless the evidence is different on a retrial, the jury would need to be directed that any admission that they found made

by the appellant could not go to any specific offence or sexual activity. Rather, the jury would need to be instructed that, at best, the admission could only be used to show that there was a sexual relationship between the appellant and the complainant. In turn, that will require the judge to direct the jury as to the proper use, and non-misuse, of relationship evidence.

57 If the prosecution places reliance on the appellant's silence when faced by an accusation as an admission, the jury will have to be told that, in considering his reaction to the accusation implicit in the question, they should consider, first, whether they were satisfied that the accused had heard the question (and there seems to be no suggestion in the evidence that he did not); and secondly, whether the circumstances were such that the appellant should have been expected to make a denial of it. If the jury were satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusation implicit in the question.

58 Since directions such as these were not given at the appellant's trial, there has been a substantial miscarriage of justice.

59 For the foregoing reasons, I would allow the appeal, quash the convictions and sentences and order a retrial.

60 I have had the benefit of reading the draft reasons of Priest JA. I respectfully agree with his Honour that grounds 1 and 2 should not be upheld. I also agree with his Honour that the concession made by the respondent in relation to the more recently added grounds 3B(b) & (c) was a concession properly made. Therefore, as his Honour has concluded, the convictions and sentences should be quashed and a re-trial ordered. As to the directions that will be required to be given on the retrial Priest JA has also usefully described what the trial judge will need to do in directing

the jury on this topic.[21] I would add that in the Victorian Criminal Charge Book at 4.6.1 and 4.6.2 there are detailed bench notes and draft charge dealing with this topic (confessions and admissions) and they are thorough and detailed.

61 This appeal has thus resulted in a retrial in which it will be necessary for the witnesses to once again give evidence concerning allegations of sexual offences occurring some four years ago. In R v Said[22] Maxwell P said:

This case illustrates just how important a resource the charge book is for trial judges, and how important it is that it be used for its intended purpose, that is, to minimise the risk of appealable error. The charge book contains much more than the model charges. Each part of the charge book provides references to relevant decisions, and guidance as to when and how particular topics need to be addressed (depending always on the circumstances of the particular trial). The charge book is accessible on-line and there is every reason to think that judges can - and should - avail themselves of the assistance which it provides.

Every time appealable error is avoided, every time the community is saved the time and expense of an appeal and a retrial, the vital importance of the charge book is reinforced.

62 For all of us who sit as trial judges, this is very important to remember.

[3] Visual and Audio Recorded Evidence. See Criminal Procedure Act 2009, s 367.

[5] MacKenzie v The Queen (1996) 190 CLR 348, 357.

[7] Ibid 366-9 (citations omitted; emphasis added). See also R v Bacash [1981] VicRp 86; [1981] VR 923; R v Nanette [1982] VicRp 8; [1982] VR 81; R v Kirkman (1987) 44 SASR 591; R v Dell'Albani (1990) 49 A Crim R 294; R v Celebicanin & Nyiri (1991) 53 A Crim R 374; R v Appleby (1996) 88 A Crim R 456; R v Ware [1997] 1 VR 647; R v Harvey [1997] 2 VR 121; Jones v The Queen (1997) 191 CLR 439; M F A v The Queen [2002] HCA 53; (2002) 213 CLR 606; R v J A [2008] VSCA 169; R v Scott [2009] VSCA 20; (2009) 22 VR 41; C J J v The Queen [2012] VSCA 196; Carrot v The Queen [2013] VSCA 90.

[8] [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316, [41] (the Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA); Greensill v The Court [2012] VSCA 306.

[9] See and compare Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 228; R v Emmerson (unreported, 12 September 1997, Vic CA), 1-2 (Hayne JA); Azzopardi v The Queen (2001) 205 CLR 50, 64 [34], 73 [62] (Gaudron, Gummow, Kirby and Hayne JJ).

[12] R v M M J [2006] VSCA 226; (2006) 166 A Crim R 501, 523-4 [93]-[97]; Magill v The Queen [2013] VSCA 259, [80] (Priest JA).

[19] The Dictionary to the Evidence Act 2008 defines an admission as being a previous representation that is 'adverse to the person's interest in the outcome of the proceeding'.

[20] The judge may also need to consider whether to give a warning under s 165(1)(a) of the Evidence Act 2008.

[22] [2009] VSCA 244, [29]-[31].

Jury Directions Act 2013(Vic)

Choudhary v The Queen [2013] VSCA 325

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Choudhary v The Queen [2013] VSCA 325 (21 November 2013)

Parties

Legislation Cited (2)

Cases Cited (12)