Christian v R

Court of Criminal Appeal (NSW)|2011-10-12|Before: McClellan CJ, Latham J, Harrison J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: The appellant was charged with seven counts of sexual assault of a child. In its amended form the indictment charged the following counts: Count 1: between 5 February 1993 and 5 February 1994 commit indecent assault of the complainant, aged under 10 (namely 5 or 6 years old). Count 2: between 5 February 1993 and 5 February 1994 commit sexual intercourse on the complainant aged under 10 (namely 5 or 6 years old). Count 3: between 5 February 1993 and 5 February 1994 commit sexual intercourse on the complainant aged under 10 (namely 5 or 6 years old). Count 4: between 8 February 1996 and 1 November 1996 commit indecent assault of the complainant, aged under 10 (namely 8 years old). Count 5: between 8 February 1996 and 1 November 1996 commit sexual intercourse on the complainant, aged under 10 years (namely 8 years old). Count 6: between 8 February 1996 and 1 November 1996 commit sexual intercourse on the complainant, aged under 10 (namely 8 years old). Count 7: between 1 September 2000 and 5 February 2003 commit sexual intercourse on the complainant, aged above 10 and under 16 (namely 13 or 14 years old). 2The appellant pleaded not guilty but was convicted on all counts. The evidence against the appellant came primarily from the complainant. He said that when he was 5 or 6 years old (he was born on 5 February 1988) the appellant invited him into his home and sexually abused him by touching his penis and committing fellatio. He testified that the appellant told him not to tell anybody about what had happened because he would get into trouble. 3He testified that subsequently when he was 8 or 9 years old he again met the appellant. He said that the appellant again invited him into his home and on this occasion touched his penis, committed fellatio and anal penetration. Although he recalled that other sexual activity had occurred, he said that he was unable to be precise about the circumstances and these allegations were not the subject of any count on the indictment. 4He also testified that when he was about 12 years old he visited the appellant to obtain a copy of a pornographic magazine which he intended to show to his friends. He said that on this occasion the appellant had placed his erect penis in his anus. 5Finally he testified that when he was 18 years old he engaged in consensual homosexual activity with the appellant who by, this time, was living at a different location to the location where the complainant said that the earlier assaults had occurred. 6The complainant initially complained about the appellant's actions to the mother of a friend, Ms Lesley Thompson. He informed the police in 2006 but at first told them that he did not wish to proceed with the matter. However, in October 2008, he changed his mind and told the police that he did wish to proceed. At about this time he also told his parents about the alleged abuse. 7Ms Lesley Thompson gave evidence at the trial. She told the court of the complaint which she said was made to her in 2006. She said that the complainant told her "that a guy was touching him" and "doing things to him that he didn't like." He asked Ms Thompson "does this make me a poofter?" 8The complainant's mother also testified. She gave evidence of the complainant telling her in October 2008 that the appellant had molested him when he was "about 6 or 8." She also gave evidence of confronting the appellant with the allegations. She said that she said to him "you molested my child." She testified that the appellant replied "oh Chrissie" while he "bunched up the top of [his] shoulders" and "had his arms outstretched" with "both hands out" before he turned around and shut the door. 9In the course of the investigation the police arranged for the complainant to have telephone conversations with the appellant which were recorded. There was also an occasion when they met and the complainant was fitted with a listening device. Recordings of these conversations were tendered in evidence. The recorded conversations are described as "pretext" conversations. 10In the course of these conversations the complainant said to the appellant that his recollection was that "sex" began when he was about 5 years old. The appellant denied this and on a number of occasions said that he did not know the complainant at that age and said "I didn't even know you ... 12 or 14 or something ... when you used to talk to me out the front." 11The complainant referred in the conversations to fellatio and anal intercourse occurring at a time when "I'm not even hit puberty yet." The appellant did not directly respond to this allegation but said on a number of occasions "well the thing is, you gotta work out which way you're going to go now though." This remark was made in the context where it was apparent that the complainant was troubled by his sexual orientation and said that he was seeking the assistance of the appellant in working out those issues. 12On 31 July 2009 the appellant said "there really wasn't that much happened" and "you were about 15." When the complainant said "you fucked me in the bum and then made me suck your cock" the appellant did not directly respond but said "I went down exactly the same track ...". 13Exchanges of this character occurred on more than one occasion. Later in the conversation the complainant referred to the appellant "fucking me up the arse and making me suck your cock" at which time the appellant said "Well mate, you can only keep going the way you're going ..." and "if you're upset about something I apologise." 14The appellant did not give evidence. However, he participated in an ERISP which was tendered in evidence. During the course of that interview he said that he did not know the complainant "till he was probably 14 or 15" and "probably a year or two after that" they engaged in "a little bit of fondling and that" which involved touching each other's penis. He denied ever having fellatio or "anal sex" with the complainant. He suggested that "what I think has prompted all this" was that "in about October 2008 the complainant "wanted to do" things that the appellant "didn't want to" and the appellant told him "I don't want you to come around here." 15He said that he lived at one address until about 2004 or 2005 and then moved to another location in Sans Souci. The appellant did not dispute that the complainant on occasions came to his first home. 16With respect to the confrontation with the complainant's mother the appellant said that he said to her "Well, it's, it's, it's not right, so I'm sorry, like, go away." 17There was other evidence which supported some aspects of the complainant's evidence. The complainant was able to describe the appellant's original home including an aviary. The presence of an aviary was confirmed by a subsequent owner of that property. 18The complainant also said that the appellant had a dog at the time of the first alleged assault. The complainant's mother gave similar evidence. However, she did not testify as to the time that she observed the dog and her evidence was that she saw it "out the front of the house." 19As I have indicated, the complainant gave evidence that when he was about 12 years old he visited the appellant to obtain a pornographic magazine. One of the complainant's friends testified that when he was about 11 or 12 the complainant said to him "I can get a porn mag off a man" and went away on his bicycle before returning after "approximately half an hour" with a "full frontal heterosexual pornographic magazine." However, the witness could not confirm that the complainant obtained the magazine from the appellant. 20The defence case was made from the ERISP. On the appellant's behalf it was put to the jury that the first time the complainant visited the appellant's home was about 2003 when he was about 15. It was accepted by the appellant that there was sexual "fondling" on various occasions in 2006-2008 when the complainant was 18 to 20 years old. The appellant maintained that there was never any oral or anal intercourse with the complainant. 21The complainant was cross-examined. A number of issues were raised with him including his uncertainty as to his precise age when the first sexual abuse allegedly occurred. It was also suggested to him that he could not recall with precision the conversations which occurred at that time. He was also challenged about this assertion that he was scared by what the appellant had done with him but nevertheless had returned to the appellant's house. 22The complainant was also cross-examined in relation to his testimony with respect to count 7 in which he alleged that he had penetrated the appellant's anus when the appellant sat on his penis. In the course of the "pretext conversations" the complainant had referred to the fact that the appellant "started fucking me." 23The complainant was also challenged in relation to an occasion when he went to the appellant's house to complain in 2009. During the course of cross-examination he agreed that he had initially denied doing this to the Crown Prosecutor and had also lied about it to the police and a psychiatrist. 24The appellant emphasised and relied on the fact that he had no previous criminal record. 25There are three grounds of appeal.

Ground 1: The trial judge erred in holding that certain cross-examination of the complainant would not be permitted on the basis that it sought to adduce evidence that was not relevant.

26The complainant commenced a civil action for damages against the appellant in 2009. During the course of cross-examination the appellant's counsel asked the complainant about "instructions" he gave to his solicitor in the civil proceedings in relation to a statement he had made to his solicitor "concerning these matters", which "were not to be provided to the defence." When this question was asked the prosecutor objected. The trial judge upheld the objection ruling that the question was "not relevant." 27The matter was argued in the absence of the jury during the course of which defence counsel said that the relevance of the question was to elicit an explanation from the complainant as to why he was claiming privilege. The exchange which occurred was in the following terms: "HER HONOUR: What is the relevance of this Mr Flynn? (Mr Flynn appeared for the appellant). FLYNN: Your Honour this goes to - just to give a bit of background - a subpoena for production for these proceedings was issued to the complainant's solicitors in a civil claim. An affidavit was filed by the solicitor for the complainant and it was sworn on 16 August. Paragraph 13 of the affidavit sworn by the complainant's solicitor reads this way: 'I am instructed by my client to maintain a claim of privilege over the documents which have been produced to court over which a privilege claim currently exists.' Privilege is the privilege of the complainant. It can be waived by the complainant. It hasn't been waived by the complainant and what I was leading into, your Honour, was why it is that the complainant maintained a claim of privilege over his instructions to his solicitor concerning the events touching upon these matters. HER HONOUR: What is the relevant of this? FLYNN: Your Honour it may well be that there have been - it is akin to complaint evidence, if I can express it that way, because if he has given, which he obviously would have done, given a version to his solicitor, that is a complaint matter. That is the relevance." 28Counsel who appeared for the appellant on the appeal acknowledged that the matter had not been well handled by defence counsel. I infer from his submission that he accepts that the question which was asked was rightly rejected having regard to the foundation which defence counsel said supported it. However, although counsel on the appeal submitted that defence counsel accepted that there was a "privilege question" in relation to the statement, he submitted that defence counsel's real purpose was to elicit an explanation from the complainant as to why he was claiming privilege, apparently on the basis that this would be relevant to his credibility. 29Before evidence can be admitted it must be relevant to a fact in issue in the proceedings: Evidence Act 1995 s 56. The law excludes the drawing of an inference adverse to a person from the fact that they have claimed client legal privilege: Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 at [15]; McGuiness v State of New South Wales [2009] NSWSC 40; [2009] 73 NSWLR 104 at [147]-[148]. It follows that the reasons for the complainant's claim of client legal privilege was not a matter from which the jury could have drawn any inference. Questions directed to the complainant's reasons for claiming privilege were not admissible. 30Counsel for the appellant before this Court submitted that defence counsel should have approached the issue in a different manner. It was submitted that having established that the complainant maintained his privilege defence counsel could have legitimately asked him what he wrote in the statement: Evidence Act s 123. It was submitted that once privilege had been lost in respect of evidence of what he said it would follow that the usual prohibition on any adverse inference being drawn from claiming privilege in respect of the document would not apply and accordingly, the trial judge erred in prematurely closing off this line of cross-examination: Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79 at 86-87. 31It is unnecessary to consider this submission. The simple fact is that trial counsel neither took this course nor indicated that this was the course he was proposing to take. No occasion arose for the trial judge to consider it. The question which was asked and rejected was plainly inadmissible. If counsel had sought to put the matter in a different manner the trial judge would have had the opportunity to consider it.

Ground 2: The trial judge erred in failing properly to direct the jury regarding alleged admissions by the appellant.

32This ground of appeal raises two matters for consideration. The first matter is the confrontation between the complainant's mother and the appellant. The second is the appellant's response in the recorded conversations with the complainant (the "pretext conversations"). 33I have previously referred to the occasion when the complainant's mother confronted the appellant at his home. At the trial the prosecutor submitted to the jury that the appellant's response, as described by the complainant's mother, was "another example of conduct consistent with, you might think, a guilty knowledge." He continued: "but was that behaviour to you, consistent with or at least a possibility of consistency, with someone who was innocent of anything, certainly innocent of anything beyond simply touching the penis on a number of occasions." 34In his closing address defence counsel submitted that the evidence of the appellant's response to the complainant's mother was not capable of amounting to an admission. He submitted that at the time the appellant was unaware of any allegation of child sexual assault and, accordingly, his response could only have been directed to the possibility of the complainant's mother challenging him in relation to sexual activity with her son after he had reached the age of 16 years. 35In her summing up the trial judge referred to the evidence of the complainant's mother together with the Crown's submissions. Apart from describing the evidence her Honour did not give any further direction in relation to it. No further directions were sought by defence counsel. 36Counsel for the appellant in this Court submitted that, notwithstanding that no request had been made by trial counsel, her Honour had erred in failing to give directions to the jury in relation to this exchange. It was submitted that the evidence from the complainant's mother was highly ambiguous and that the appellant had effectively denied it in his ERISP. The appellant emphasised that the trial judge made no reference in the summing up to the jury of the appellant's version of the occasion and did not refer to defence counsel's argument. 37It was submitted that if an inference of some kind of admission was to be drawn from this occasion, the admission could relate only to the sexual contact with the complainant that the appellant admitted to in the ERISP and not the sexual conduct in the charges against the appellant. It was submitted that the trial judge should have directed the jury that they should only use this evidence as evidence of "guilty knowledge" if they were satisfied: (a) that the appellant had reacted in the way alleged by the complainant's mother rather than how the appellant said he reacted in the ERISP; (b) that the circumstances were such that the appellant should have been expected to make a denial so that his reaction in failing to deny the allegation revealed that he had a guilty knowledge that he had "molested" the complainant; and (c) that the "molestation" admitted related to the offences charged and not to the sexual contact admitted by the appellant in the ERISP. 38It was further submitted that the jury should have been directed that it would not be open to them to use the evidence as an admission of any particular count on the indictment - at the highest it could only be used as evidence that showed the nature of the relationship between the appellant and the complainant that placed the evidence of the particular conduct charged into context. 39I have discussed below the obligations which the law imposes on a trial judge when giving directions to the jury in relation to alleged admissions. The conversation with the complainant's mother is, to my mind, correctly described by the appellant's counsel as ambiguous. I do not believe it could amount to an admission, either of sexual conduct after the complainant had reached 16 years of age, or earlier. It certainly could not amount to an admission in relation to any of the individual charges. 40I am in no doubt that the parties at the trial accepted that the evidence ultimately had little, if any, evidentiary value and it was for this reason that trial counsel did not make a request for any directions in relation to it. Accepting the mother's version of the event as being accurate, the response of the appellant was entirely equivocal. Trial counsel did not see any need to raise the matter. To do so would only have given unwarranted significance to the exchange which may have been to the appellant's detriment. 41I would refuse leave to raise this issue pursuant to rule 4 of the Criminal Appeal Rules. 42The pretext conversations raise quite different issues. It was submitted by the respondent that they fall into three broad categories. Some were said to be direct admissions, some admissions by silence indicating acquiescence or acceptance of propositions put by the complainant and the third category were denials of particular aspects of accusations put by the complainant. 43Detailed submissions were made with respect to the nature of and the inference alleged to be available from each of the appellant's responses. The prosecution emphasised to the jury that during the course of the conversations the appellant never denied that oral and anal sex had occurred although, as the appellant emphasised, he did say that nothing happened until the complainant was older. The prosecutor submitted that the "pretext conversations at the end of the day are capable of being admissions of guilt by the accused's assent or concurrence in what the complainant has put to him." The defence argued that they provided no support for the prosecution in relation to any particular count. 44The relevant portions of the conversations and the respondent's particular submission as to the category into which it should be placed and the submission with respect to it are set out below.

Conversation "...You know, having sex with me when I'm five, it doesn't, it's not a very good thing you know, like, and now it's playing with my head." "Five what was that, I don't, that's certainly not right mate..." (Category (c) - tacit acceptance of the unchallenged part of accusation.") 45The respondent submitted that the appellant's denial is confined to the complainant's age. He does not deny the assertion of "having sex". 46The respondent relied upon this material as an admission, being a tacit agreement to the assertion by the complainant that the complainant and the appellant "had sex" and it was submitted supported the complainant's evidence that the appellant had sexual intercourse with him. 47In the ERISP the appellant only refers to fondling and specifically denies having had "sex" with the complainant. It was accordingly submitted that this evidence may be used by the court to assess the credibility of the appellant's denials in the ERISP of fellatio, anal penetration and his assertion that there was no sexual contact other than fondling.

"Yeah, I just, I'm still having trouble with what happened you know, years ago, I think, you know, you having sex with me when I was only five and shit, but." "But Well you've got -" "You know, how old, how old did you think I was then cause like I'm thinking I was five." "Mate you were older than that, you, I didn't, I didn't even know you, you, I don't, 12 or 14 or something, 14 or something when you used to talk to me out the front." (Categories (a) - direct admission; and (c) tacit acceptance of the unchallenged part of accusation). 48The respondent relied upon this response as evidence of a tacit admission of "having sex" and a direct admission that this happened when the complainant was 12 or 14. It was submitted that this evidence supports the complainant's evidence. It was submitted that this evidence also contradicts the appellant's ERISP evidence that the appellant did not (a) engage in sexual contact other than "fondling", and (b) have sexual contact with the complainant until a couple of years after he first met the complainant (ie when he was 17 or 18).

Conversation "You know 'cause like the way you used to do it with me, like, you fucking, you threw me around and everything, like, you would...fuck me is the arse for a fucking half hour on end and then you'd make me suck your cock, shit, you know, that's pretty hectic fucking crap...you're fucking me up the arse when I'm fucking, I'm not even hit puberty yet, haven't even had any idea what sexuality is and here you are..." "Mate, you ... yeah you, well." (Category (b) - silence indicating acquiescence or acceptance of propositions put by the complainant). 49The respondent submitted that the complainant made explicit accusations of anal penetration by appellant and of the appellant making the complainant fellate him which the appellant did not deny. This was said to be in striking contrast to his quick denial that the complainant was 5 when they "had sex" (see first conversation). 50The respondent relied on the failure of the appellant to deny the accusation of anal penetration and fellatio as an admission that those acts took place. This was said to be evidence to support the complainant and contradict the answers given by the appellant in his ERISP.

Conversation "Say I was 5 or 6 again and I came around to yours would you fuck me again?" "Mate I didn't know you when you were, when you were even anywhere near that old." (Category (c) - tacit acceptance of the unchallenged part of accusation). 51The respondent submitted that this was an admission that intercourse had occurred.

Conversation "Did you think I liked having sex with you" "Mate, I, I, I don't really know, I don't really know why you're trying to head this way, you know, and I, it's, it's just not much point about things like that really." (Category (b) - silence indicating acquiescence or acceptance of propositions put by the complainant). 52The respondent submitted that the appellant's failure to challenge or deny the complainant's accusation of "having sex" could be relied upon as admission that sexual intercourse occurred. It was submitted that this supports the complainant and contradicts the appellant's evidence in the ERISP.

Conversation "So why did you have sex with me so young?" "Mate I didn't know you when you were real young so I don't know what ..." (Category (c) - tacit acceptance of the unchallenged part of the accusation). 53The respondent relied upon this exchange as evidence of a tacit admission of "having sex". It was submitted that this evidence supports the complainant and contradicts the appellant's ERISP evidence.

"What do I tell my kids, you know, if when I have kids I tell them that, you know, I was, I was sexually abused when I was fucking 10, you know, do I, do I say that to them or how do I tell them, like, what would you do?" "Um" "Like you've got kids as well don't ya, had you ever told them that you, you ever told tem that you've ever done anything with kids?" "I-" "I don't think you would" "Mate, you were a lot older when you used to come round to my place, as I said to you the other day, you know, you're getting a bit jumbled up unfortunately but the thing is, look, you just got to, you, you, like you won't be happy until you look forward and not back." (Category (c) - tacit acceptance of the unchallenged part of accusation). 54It was submitted that the significance of this conversation was that the appellant denied that the complainant was 10 years old, but not the general accusation of "sexual abuse". 55The respondent relied upon the appellant's failure to deny or challenge the substance of the accusation as a tacit admission that "sexual abuse" occurred. The respondent acknowledged that this is a general term, but submitted that this admission supports the complainant's evidence and contradicts the appellant's evidence in the ERISP.

Conversation "Mate you used to, you used to come round when I was cutting the lawn and that and have a soft drink and, on your bike and that, and you were about 15 then." (Category (a) - direct admission). 56It was submitted that in this case, the appellant was proffering information. The respondent submitted that this is an admission to sexual contact when the complainant was "about 15". It was submitted that this evidence demonstrates the appellant's readiness to correct the complainant on matters with which he disagrees (ie his age). This response is made in response to the complainant's assertion of "sexual abuse" and supports the complainant's evidence and contradicts the appellant's evidence in his ERISP.

Conversation "You know, like, how, how did you deal with getting fucked when you were so young, 'cause you said you weren't that young, just before, like this, that's, it's sexual abuse you know, like, I've got to live for the rest of my life knowing that, from such a young age, fuck, you fucking, you fucked me in the bum and then you made me suck your cock and shit and, you know, you did the same to me and -" "Well -" "Yeah" "I told you the track I took, I, I went down exactly the same track and I just got over it and put it behind me and just went on with life and really that's what you got to do." "So after you got fucked, you just, you just left it, you just-" "Yep, yeah". (Categories (a) direct admission, and (b) silence indicating acquiescence or acceptance of propositions put by the complainant). 57It was submitted that the complainant made explicit accusations of anal penetration and fellatio and that the appellant indicated his agreement with his allegation by saying "yeah." It was submitted that this was a clear admission that he had had penetrative anal intercourse and fellatio with the complainant. It was submitted that the appellant did not deny any aspect of the complainant's accusation. It was submitted that this evidence supports the complainant's evidence and contradicts the appellant's evidence in his ERISP. "Well what age do you say I was, what 10?" "Well mate, from what I recall you were about 15 or 16 when you come round, first started to come round, around on a little push bike" (Category (c) - tacit acceptance of the unchallenged part of accusation). 58The respondent relied on the appellant's response in this exchange as a tacit admission of the sexual activity asserted. It was submitted that this was a further demonstration that the appellant was capable and willing to correct the complainant and deny aspects of the accusation that he thinks are not true. This was said to be in striking contrast to his silence about the nature of the sexual acts that occurred between them.

Conversation "Well, like, I remember it was like shortly after I broke my leg you know, I was only six." "Yeah, no you weren't". (Category (c) - tacit acceptance of the unchallenged part of accusation). 59It was submitted that this exchange was in response to the explicit accusation previously referred to.

"I was 6 or 7" "Mate you weren't that young" 60It was submitted that this is a further example of the appellant's readiness to correct and challenge the complainant and is relevant to the consideration of his repeated failures to deny other matters.

Conversation "And you started doing it and like, all right, I came over a few times but you didn't really have to fuck me, like you could said to wait till I was older or something. Like...before fucken puberty, like I wasn't even in my teens, you know. "Yeah" (Category a - direct admission). 61The respondent relied upon this statement as a direct admission that penetrative sexual contact occurred before the complainant reached puberty and before he was 13. It was submitted that this evidence supports the complainant's evidence and the appellant's failure to deny the accusation should be considered in light of the immediately preceding denial regarding the complainant's age. It was submitted that this evidence also contradicts the appellant's ERISP evidence as to the absence of penetrative sex.

Conversation "Well, mate, if there was anything that you weren't happy with at that time, I'm prepared to say that, but I'm going to say, I'll still say that you're a little, you're out on your dates, because you weren't that young when I first knew you, honestly. But anyway -" (Category (c) - tacit acceptance of the unchallenged part of accusation). 62The appellant's statement was in response to the complainant's assertion that the appellant "fucked" him before he was in puberty. The respondent relied upon this statement as a tacit admission that the appellant had penetrative sexual intercourse with the complainant before he was 13. It was submitted that this evidence supports the complainant's evidence and contradicts the appellant's evidence in the ERISP.

Conversation "And I come around that afternoon and like you didn't fuck me that day, but you made me give you head and that and you were like saying all this stuff coming out of you, and it's happy stuff, its happy stuff. I'm like -" "Mate, I - " "-I don't know what fucken happy shit was, you know" "Yeah". (Category (b) - silence indicating acquiescence or acceptance of propositions put by the complainant). 63It was submitted that on this occasion, the complainant recounts the circumstances leading up to counts 1 to 3, which are not denied by appellant. It was submitted that this failure to deny should be considered in light of the appellant's previous repeated and robust denials regarding the complainant's age. It was submitted that the appellant failed to deny the complainant's reference to making the complainant fellate him and the words attributed to him "happy stuff." It was submitted that this exchange was evidence which counts 1 to 3 supported. This evidence was said to be evidence that contradicted the appellant's evidence in the ERISP.

Conversation "How old did you think I was then, like you said I was 12 or something, I reckon I was fucking minimum, minimum of 8, you know, minimum. I know, like I had my first bike, the first time I came around yours." "You weren't that young, from what I recall..." (Category (c) - tacit acceptance of the unchallenged part of accusation). 64It was submitted that this was another reference to the first incident (counts 1 to 3). It was submitted that the appellant again denies the age of the complainant, but nothing else.

Conversation "Yeah, but why did you have to do it to me?" "Well, mate, you kept coming around, around there, and I mean to say - " "But you kept doing it, you know, like once would have been all right, but for you to keep on doing it and keep, you know, to keep putting it on me as well, you know like, and it fucken, you know, I'd go home and I'd cry and I'd cry at school and shit-" "Yeah" (Category a - direct admission). 65This exchange is relied upon as a direct admission of the complainant's version of events forming counts 1 to 3. It was submitted that this is evidence which supports counts 1 to 3. This evidence also contradicts the appellant's evidence in the ERISP. "I have my problems too... Mate I was about 13 or 14 when a couple of older blokes were playing around with me so its not unlike..." "Yeah well I was still a little bit younger" "It was the same sort of situation." (Category a - direct admission). 66It was submitted that this is a clear admission that the sexual contact occurred when the complainant was less than 13 or 14. It was further submitted that this evidence supports the complainant's evidence in general terms on all the counts and contradicts the appellant's evidence in the ERISP.

Conversation "Like I can't, I can't masturbate without you fucken popping into my head, you fucken lifting my legs and fucking me up the arse and making me suck your cock, you know, and like the times when, and after we were finished and I went in the toilets and that at your place...[Background noise] when I was in the toilet and that, you know, I was thinking fuck, you know, what have I, what has he done to me?" "Mmm" "You know, I didn't know any fucken better, you know, I was only a kid, Warren, I was only a fucken kid, for God's sake" "Yeah". (Category (a) direct admission or (b) silence indicating acquiescence or acceptance of propositions put by the complainant). 67The respondent submitted that the complainant makes an accusation of anal penetration and fellatio and that the appellant indicates his acceptance of that statement by saying mmm and yeah. The respondent relied on this as a direct admission that anal penetration and fellatio occurred as asserted by complainant, or alternatively as silence as acceptance of the accusation. This is relied upon to support the complainant's evidence and contradict the appellant's answers in the ERISP.

Conversation "Maybe you could have waited till I was a bit fucken older, you know, you could have said to me when I was fucken 10 you know "...wait fucken six years or something" you know." "Yeah." "'Just wait' and fucken, you should have said it to me, but you never, you never fucken said that, you always just brought me in there and the time when fucken, I came around and you gave me those magazines in the fucken shed, you know, like my friends were across the road that day and you fucken, you fucken started fucking me and shit, you know like, oh, you put it on me too much, you really did." "Well, mate-" "Way too much, and I didn't know how to say no, what was I meant to do, fucken -" "- I don't know" "- walk away, well, I didn't know how to do that, I was a fucken kid, you know." "Yeah" "I was trying to live my life as a kid" "Mmm" ... "- all the time, you know, it's bad, Warren." "Mate, mate I understand that." (Category (a) direct admission and (b) silence indicating acquiescence or acceptance of propositions put by the complainant). 68It was submitted that in this exchange the complainant refers to the incident giving rise to count 7 and it was submitted that the appellant appears to agree with the complainant's accusation and fails to deny any part of it. 69The appellant's responses are relied upon as an admission of sexual intercourse in relation to count 7. 70The trial judge summarised both the prosecution and defence arguments in relation to this evidence. However, the appellant complained to this Court that no directions were given in accordance with the relevant authorities and that contrary to Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211 no attempt was made to give directions in respect of particular aspects of the pretext conversations relied upon by the Crown which would precisely identify the particular response of the appellant that was said to constitute an "admission of guilt." It was further submitted that there were difficulties arising from the fact that no directions were given in respect of the appellant's repeated assertion that nothing happened until the complainant was older. 71The appellant told the police in his ERISP that he never had oral or anal sex with the complainant. It was submitted to this Court that one possible inference was that by these denials to the police the appellant impliedly admitted in the pretext conversations that they did have both oral and anal sex, but only after the complainant was older. This would not involve an admission in relation to any of the offences charged against the appellant. It was submitted that these matters raised a need for careful directions to the jury regarding how they might use what the appellant had said and did not say in the pretext conversations. 72The directions which the trial judge gave were in the following terms: "The next area which again the Crown says supports the complainant and as you would be well aware, Mr Flynn on behalf of the accused makes the opposite suggestion and I will come to that shortly, the pretext conversations. Specifically the Crown suggested to you that in those recorded conversations the accused at no time denied what the complainant was alleging. His responses were not, the Crown Prosecutor suggested, his responses were not what you would expect from a person confronted by extremely serious allegations of sexual assault of a young boy. The Crown Prosecutor invited you to listen again to all those calls in exhibit E but placed particular emphasis on the call at tab C and the call recorded at the face to face meeting in tab E." 73No complaint or request for further direction on these matters was made at the trial. 74It was submitted that the trial judge should have given directions regarding the manner in which the relevant conversations could be used. The appellant emphasised that in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Gibbs, Stephen and Mason JJ said at 107: "It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R v Christie (1914) AC 545 at p 565. In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth." 75The appellant submitted that in the present case the prosecution was effectively relying on the appellant's conduct, his demeanour and, in particular, his failure to unequivocally deny what was alleged against him, when confronted by the complainant to infer an admission or consciousness of guilt in relation to the offences charged. It was submitted that in these circumstances very careful directions are required to be given by the trial judge even if not requested by defence counsel: R v MMJ [2006] VSCA 226, (2006) 166 A Crim R 501 at [29]-[37] and [85]-[97]; R v ON [2009] QCA 62 at [40]-[42]; DJF v The Queen [2011] NSWCCA 6 at [10]-[11], [44] and [51]; see also R v Barrett [2007] VSCA 95; (2007) 171 A Crim R 315 at [36]-[46]. 76It was submitted that the trial judge should have directed the jury that they should only use this evidence as an admission if they were satisfied that: (a) in respect of any particular allegation made in the pretext conversation, the appellant had by his speech, silence or conduct admitted the truth of the allegation; (b) to the extent that the Crown was relying on the appellant's silence or failure to deny an allegation, the circumstances were such that the appellant should have been expected to make a denial so that his reaction in failing to deny the allegation involved an admission of the truth of the allegation; (c) the appellant's response in respect of any particular allegation was not explicable by such possible explanations as a desire to placate the complainant, or frustration, etc; and (d) the admission related to the offences charged and not to the sexual contact admitted by the appellant in the ERISP. 77Finally it was submitted that the jury should have been directed that it would not be open to the jury to use the evidence as an admission of guilt in relation to any particular count on the indictment. At the highest it was submitted it could only be used as evidence that showed the nature of the relationship between the appellant and the complainant and placed the evidence of particular conduct into context. 78In response to the appellant's submissions the respondent submitted that it was apparent from both the submissions of counsel and the directions of the trial judge that the jury were not being asked to infer from the pretext conversations that the appellant admitted any particular offence. The respondent emphasised that the trial judge was careful to remind the jury on a number of occasions that they needed to be satisfied of all of the elements of any particular count before returning a guilty verdict on that count. In this respect the trial judge told the jury that the Crown case depended upon acceptance of the complainant as "an honest and accurate witness in so far as the essential elements of these charges are concerned." Accordingly, it was submitted there was no risk of the jury impermissibly using the evidence as capable of establishing any particular count on the indictment. 79It was submitted that the requirement for a trial judge to give directions of the kind described in Edwards should not be elevated to a rule of universal application whenever a response to an accusatory statement is capable of being treated as an admission of guilt. Although the respondent accepted that it may have been preferable for the trial judge to have directed the jury as to the specific admissions relied upon by the Crown, it was submitted that her Honour's failure to do so was not erroneous. 80Although the appellant's counsel did not raise the issue at the trial I am satisfied that in the circumstances of this case the trial has miscarried. It is apparent from the excerpts from the pretext conversations which I have included in these reasons that, both from the answers given, and the circumstances in which they took place, it was possible to infer that the appellant was admitting conduct which may have constituted an offence. The prosecution sought to rely on some of the responses by the appellant and his lack of denial of some allegations as evidence of his guilt of the counts in the indictment. However, the jury were given no guidance by the trial judge as to how the evidence could be utilised by them, in particular if it could be utilised in respect of any particular offence. If, as the prosecutor submitted, the utility for the prosecution case was confined to an admission of oral and anal sex on some occasion, this was not evidence of itself relevant to prove any particular count in the indictment. This should have been made plain to the jury. 81To my mind the trial judge was required to approach this issue in the manner that was endorsed by the Victorian Court of Appeal in MMJ. In that matter Warren CJ said: "In R v Gallagher; [(1997) 96 A Crim R 300] this Court held that the silence of an accused to an implicating question over the telephone was admissible. Ashley AJA, with whom Brooking JA agreed, held that the trial judge was not asked to exclude the subject evidence and no exception was taken, therefore, the applicant could not in the circumstance rely on the point on an application for leave to appeal where it had not been raised below. Callaway JA took a different view [see R v Gallagher; (1997) 96 A Crim R 300 at 315]. Ashley AJA in Gallagher considered Salahattin and Alexander and characterised the silence of the applicant as falling into the domain of consciousness of guilt [R v Gallagher; (1997) 96 A Crim R 300 at 329]. In my view, the silence of the applicant to the question of B when watching television is properly characterised as a consciousness of guilt matter. The case against the applicant turned on the credibility of A. The silence of the applicant to B's question was, in effect, used by the prosecution to do two things; first, to corroborate A's evidence; secondly, to portray the applicant's silence as an admission or consciousness of his guilt. On the authorities, silence may constitute an admission [eg see R v Salahattin [1983] 1 VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; (1997) 96 A Crim R 300]. It may be put on the same plane as a lie or post-offence conduct [eg see the discussion in JD Heydon, "Silence as evidence" [1974] 1 Mon. U.L.R 53, 56, 58, 60]. Consistently for some years now, the Courts have moved to treat silence as consciousness of guilt cases generally requiring appropriate directions to the jury [see R v Gallagher [1998] 2 VR 671 at 698-699; (1997) 96 A Crim R 300 at 329]. In R v Nguyen (2001) 118 A Crim R 479 Winneke P said: 'However, where the conduct is being used, and if capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused.' Analogous to the Edwards [v The Queen (1993) 178 CLR 193; 68 A Crim R 349] situation, the silence of the applicant here was relied on by the prosecution to constitute an admission. The majority in Edwards set out the obligation on the trial judge as to direction on a lie (and here I would substitute the conduct of silence, the turning and looking at B, then the turning away to resume watching television as requiring specific direction). Direction, it was said in Edwards was required on the circumstances and events constituting the applicant's conduct, instruction to take account of those matters only if satisfied that it reveals knowledge of the offence and that the applicant acted as he did because he knew he could otherwise be implicated. In my view, the case have revealed a clarification of the silence situation and development beyond the approach taken in Salahattin and Alexander." 82As was made plain by the trial judge's directions, the prosecutor did seek to use the pretext conversations and the alleged failure of the appellant to deny the allegations the complainant put to him to support the complainant's evidence in respect of particular charges. The appellant's responses were described as "not what you would expect from a person confronted by extremely serious allegations of sexual assault of a young boy." However, to the extent that the appellant's responses, or lack of them, could be understood to be admissions, they could not amount to admissions of particular offences, particularly those which were alleged to have occurred when the complainant was less than ten years of age. 83In my opinion, the trial judge was required to give directions which identified the particular aspects of the pretext conversations which were relied upon by the Crown as constituting an "admission of guilt" of any of the counts. The jury should have been directed to consider those particular parts of the conversation in the context of the whole conversation. Careful directions were required to remind the jury of available alternative explanations for the appellant's answers including the implicit acceptance that on occasions they had had both oral and anal sex. The jury should have been reminded to consider whether or not those responses were in the context of a mature relationship rather than one in breach of the law and accordingly, whether they supported the complainant's evidence with respect to any particular alleged offence. 84Apart from these difficulties there was a risk that the jury would engage in tendency reasoning. This is a common problem in cases involving allegations of a number of sexual assaults over a period of time. The problems have been discussed in many cases: see HM v The Queen [2008] HCA 16; (2008) 235 CLR 334; Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463. It may be, as the court said in Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168, that where the defence is that there was never any sexual activity at all, evidence of such activity on an occasion other than that which has been charged may be relevant to prove the particular acts charged. In that case Giles J said that "the jury could regard it as relating to, or at least encompassing, the charged sexual conduct and supporting that the charged sexual conduct occurred" [67]. However, in the present case it was not in dispute that there had been sexual activity between the complainant and the appellant, although the precise nature of that activity and the occasions on which it occurred were disputed. In particular the jury had to decide whether the activity alleged by the complainant had taken place before he turned ten years or sixteen years. It may be, as the prosecutor asserted, that the appellant did not deny what the complainant was asserting. However, the nature of the assertions and the significance of the response and its relationship to any of the particular charges was not considered. 85Furthermore, although the trial judge did warn the jury about not using evidence which the complainant gave of other "uncharged acts of a sexual kind" as evidence of a tendency of the accused to commit offences of the type charged, her Honour did not warn the jury against this form of reasoning with respect to the pretext evidence.

Ground 3: The trial judge erred in failing properly to direct the jury regarding what was said by the complainant in the "pretext conversations."

86In support of this ground the appellant submitted that the jury should have been reminded that they could not use the complainant's statements, assertions or allegations in the various conversations for any purpose other than to provide a context for the answers given by the appellant. 87Defence counsel in his final address had submitted to the jury that the mere repetition of the allegations did not make them true. However, the trial judge did not direct the jury not to use what the complainant said as evidence of the facts asserted nor give them a warning that repetition of the allegations did not make them more reliable. 88In my opinion this submission should also be accepted. 89The respondent submitted to this Court that the jury would not have misused the evidence in the manner contemplated by the appellant. It was submitted that the jury could not have been under the impression that the complainant's repeated accusations in the recorded conversations corroborated his evidence. The respondent emphasised that the prosecutor did not use the evidence in this way but rather told the jury "the pretext conversations are ... not a substitution for (the complainant's) evidence." The respondent emphasised that rather than there being a danger that the jury would treat the complainant's accusations as truth of their content, defence counsel pointed out the inconsistencies between the complainant's evidence at the trial and what he said in the recorded conversations and sought to capitalise on the repetition and nature of the allegations in the recorded conversations in challenging the complainant's credibility. It was further submitted that her Honour diminished the impact of the evidence in the conversations when she reminded the jury that the complainant knew he was being recorded during the conversations but the appellant did not. 90Notwithstanding the manner in which the prosecutor dealt with the evidence I am satisfied that there was a real risk in the present case that the jury would misuse the conversations. I have myself listened to the recording of the conversations and I am satisfied that unless reminded of the context in which they were put into evidence a juror would be likely to put considerable weight upon the assertions made by the complainant in the course of these conversations. Both the manner in which the assertions were made, and their repetition had the potential to distract the jury from the purpose for which they could be used. 91The recorded conversations had the potential to impact the mind of a juror both because of the appellant's response but, and to my mind this would be more powerful, because of the manner and content of the assertions made by the complainant. The jury should have been warned that the complainant's assertions could not be used as evidence in the prosecution case.

92The respondent submitted that in the event that the court was persuaded that an error had occurred this Court should not intervene. It was submitted that Rule 4 should be applied as the appellant failed to raise the points now taken at the trial. The respondent relied upon the often quoted remarks of McHugh J in Papakosmas v The Queen [1999] HCA 37;(1999) 196 CLR 297 at [72]. It was submitted that the absence of a request for a further direction by counsel at the trial was a clear indication that in the context of the trial there was no reasonable basis for concern regarding the adequacy of the trial judge's directions. It was further submitted that this Court should apply the proviso to s 6(1) of the Criminal Appeal Act 1912. It was submitted that no substantial miscarriage of justice actually occurred. 93When considering this issue it is important to appreciate that the case against the appellant was almost entirely confined to the evidence of the complainant. This is almost always the case in relation to allegations of sexual assault. Accordingly, it was important for the jury to be able to assess the credibility and reliability of the complainant's evidence. To my mind the challenge from the complainant's mother was of little consequence but the pretext conversations were likely, unless appropriately considered by the jury, to have a significant impact upon their preparedness to accept the evidence of the complainant. Unless proper directions were given in relation to those conversations there was a real risk that the jury may have reached its conclusion upon an inappropriate basis. Accordingly, I am satisfied that this Court should grant leave to appeal. It is apparent that the jury enjoyed an advantage in seeing the complainant give evidence which is not available to this Court. However, I am satisfied that there is a chance that the verdict may have been different if the jury had been given appropriate directions in relation to the pretext conversations: see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [44]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.

94The appeal was lodged some months out of time. The explanation for the delay is founded in ignorance by the appellant's solicitor of the necessity to file a notice of intention to appeal. A notice of appeal was in fact filed very shortly after the transcript of the trial was available, which was necessary before counsel could give advice as to whether or not an appeal had any prospects of success. In these circumstances I am satisfied that this Court should grant leave to appeal out of time.

95In my opinion leave to appeal should be granted, the appeal allowed, the convictions quashed and a new trial ordered. 96LATHAM J: I agree with McClellan CJ at CL. 97HARRISON J: I agree with the conclusions of the Chief Judge and with the orders that he proposes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2013

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