Dunn (a Pseudonym) v The Queen [2017] VSCA 95

1 The applicant, Jason Dunn ('Dunn'),[2] seeks leave to appeal against his conviction on 21 September 2016 by a jury sitting in the County Court of Victoria. He had pleaded not guilty to four charges of indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act 1958.[3]

2 Dunn seeks leave to appeal against his conviction by challenging the evidence of a complaint made by the complainant to her boyfriend. He challenges the admissibility of the evidence and what he alleges is the lack of appropriate directions given by the judge. He did not seek these directions at the trial.

3 More specifically, Dunn applies for leave to appeal on the following proposed grounds:

Ground 1:

A substantial miscarriage of justice occurred by:

(a) the judge admitting the complaint evidence of [the complainant's boyfriend] into evidence under s 377(4) of the Criminal Procedure Act 2009 in circumstances where the evidence was insufficiently probative of a fact in issue in the trial; and

(b) the judge failing to exclude the complaint evidence of [the complainant's boyfriend] under s 137 of the Evidence Act 2008 in circumstances where there was a real possibility that the evidence had been tainted by a process of innocent infection.

Ground 1A:

In the alternative to Ground 1, the trial miscarried because of a failure by the judge - after the evidence of the complaint was led and after the complainant and [the complainant's boyfriend] were cross-examined - to direct the jury to ignore the evidence or to direct that it was incapable of bolstering the complainant's credit.

Ground 2:

The judge erred in failing to direct the jury on the need to exclude the possibility of innocent infection or contamination of the complaint evidence before using that evidence to bolster the complainant's evidence.

4 For the reasons that follow, I consider that leave to appeal should be refused.

5 The acts forming the basis of the four charges were alleged to have occurred when the complainant, one of Dunn's step-daughters, was aged 13 and Dunn was aged between 35 and 36. The conduct was said to have occurred on two occasions (charges 1 and 2 sometime between 1 January 2012 and 3 May 2012, and charges 3 and 4 sometime between 4 May 2012 and 23 October 2012) in two different residences while the complainant's mother had left the house to go shopping and Dunn and the complainant were wrestling or 'mucking around'. In the sentencing reasons, the judge described the offending in the following terms:

Charge 1 was a charge of you sucking her breasts ... Charge 2 was also a sucking of the breast but with the addition of you placing a sticky substance on the breast prior to sucking ... Charges 3 and 4 happened almost simultaneously. Charge 3 was the sucking of the breast and Charge 4 was of putting your hand in the area of the vagina and touching ... There was no penetration of the vagina ... .[4]

6 The complainant's mother gave evidence that the complainant first mentioned a problem with her step father during an argument on 9 March 2015 between her and the complainant about the complainant not doing her chores. When her mother said she would send the complainant to live with her biological father if she did not do her chores, the complainant replied that Dunn had done to her exactly what her biological father had done to her older sister. The complainant's biological father had been convicted and sentenced for sex offences against his eldest daughter. The complainant then left the house and went to her boyfriend's house, where she spoke to her boyfriend's mother about what had happened. The boyfriend's mother persuaded the complainant to speak to police.

7 The complainant recorded a Visual and Audio Recording of Evidence ('VARE') on the same day. In it the complainant said that 'the very first person she told' about Dunn's offending was her boyfriend 'a couple of months ago'. She gave the following evidence:

Q: Okay. And have you told him? What did you tell him?

A: I just said that there was stuff that happened in the past that went really bad and I said with my mum's ex-husband that stuff - really bad stuff, happened, like, sexual stuff and yeah.

Q: Did you go into any detail with him?

A: No.

8 The police also recorded a VARE with the complainant's boyfriend on 13 March 2015. When invited to describe what the complainant had told him, the boyfriend gave the following account:[5]

A: ... we started Skyping so I was just talking to her normally and she seemed upset about something so I was asking, you know, what are you upset about? She told me that how it wasn't at the time of it happening but it was a while after that she had been upset because she'd been thinking about what happened with [Dunn]. She didn't tell me too much, just that she had been sexually assaulted by him a few years ago at that time, I think.

...

Q: What do you remember about what she told you about the sexual assault?

A: Not much. She just told me that when he was living with them - cause he's not there anymore - that when they were - I don't know. Her mum had gone out or something. He would just, you know, touch her inappropriately. I'm not - I don't know very much about that but, yeah.

Q: Did she say inappropriately or did she name a body part or anything?

A: No, that's just all.

Q: Just inappropriately?

A: Yeah.

...

Q: How did she appear when you were talking to her?

A: She looked really upset and sort of just really nervous about telling me. But, yeah, I think, yeah ...

Q: Okay, so then you've said, you know, obviously you've done the right thing; you've said to her that she needs to tell her mum.

A: Yeah.

Q: And ultimately police.

A: Yeah.

Q: How did she react to that?

A: She didn't really want to do it because she was nervous and she never - she didn't think anyone would believe her about it.

...

Q: When was this? Do you remember the Skype session?

A: I don't remember when.

Q: Okay?

A: Yeah.

Q: Do you know if it's - was it this year?

A: It was last year.

Q: Last year?

A: Yep.

Q: The end of last year? Middle? Start?

A: Probably around the middle.

Q: Do you know if it was daytime or night?

A: I think it was day.

Q: Around school time?

A: I'm not sure if it was after school or on the weekend. ... That was all we talked about.

9 On 13 September 2016[6] the judge gave his ruling[7] on the admissibility of the complaint evidence in the boyfriend's VARE under s 377 of the Criminal Procedure Act 2009 ('the CPA'). The judge identified the relevant evidence as set out above[8] and held that the evidence of the complaint was relevant either: (a) to a fact in issue, namely, whether the allegation as made by the complainant occurred, or (b) to a jury's assessment of the complainant's credibility as a witness. He held that the reference to 'inappropriately touching' was non-specific and therefore did not have such a close connection to the alleged offending as to prove the fact stated. However, he held that the complaint evidence was admissible in relation to the complainant's credit. The judge said:

[Section] 377 makes complaint evidence admissible for one or other or both of two purposes, namely to support an asserted fact and to support the complainant's credibility. This raises the possibility that evidence might be sufficiently probative to be admissible to support the complainant's credibility but not be sufficiently probative to be admissible to establish the truth of the fact asserted in the complaint.[9]

10 He referred to Stark v The Queen[10] where Maxwell P (with whom Redlich JA and Terry Forrest AJA relevantly agreed) had analysed s 377 of the CPA. The judge said:

In [39] the Court of Appeal said:

As we have seen, both the commission's recommendation and the legislative enactment were directed at extending the hearsay exception created by s 66 [of the Evidence Act 2008]. In short, the provision was intended to establish a different, and less rigorous, test of admissibility in the case of a child complainant. The focus is not on whether the child's memory of the alleged assault is fresh but on whether the evidence 'has sufficient probative value'.

There is no submission made here that the complaint was not sufficiently fresh in the mind of the complainant. ...

At paragraphs [48] and [49] the court considered what the phrase sufficiently probative, as used in s 377(4) means. At [49] the court said,

The word 'sufficient' invites the question, 'Sufficient for what purpose?'. The answer to that question must presumably be: 'Sufficient for the purpose for which the evidence is sought to be admitted'. Unlike s 66, s 377 makes complaint evidence admissible for one or other (or both) of two purposes, namely:

• 'to support an asserted fact'; and
• 'to support ... the complainant's credibility'.

This raises the possibility that evidence might be 'sufficiently probative' to be admissible to support the complainant's credibility, but not be 'sufficiently probative' to be admissible to establish the truth of the fact asserted in the complaint.

The court in paragraph [50] then quote from the case of PRW,[11] and the relevant quote which [counsel for the accused] in particular referred me to is:

I am inclined to think that the evidence will be sufficiently probative if it discloses an identifiable, specific representation, which, in the circumstances of the particular case, does add weight to the complainant's evidence by constituting a representation that was likely to be made if the fact contained in the representation had occurred.

At paragraph [54] the court said:

As suggested earlier, it may be that the phrase 'sufficiently probative' is responsive to the differential purposes for which s 377 can render such evidence admissible. To be more precise, if the hearsay evidence of the complaint is to be relied on to prove the fact stated, it may be necessary to show a closer connect in content, between the representation (and the asserted fact(s)) and the relevant allegation of sexual assault, than if the evidence went only to credit.[12]

11 Having considered Stark, the judge concluded that the complaint evidence to the boyfriend could be relied upon as relevant to the complainant's credit:

Findings: In my view, (1) The complaint as set out by myself is relevant to a fact in issue, that is whether the allegation as made by the complainant occurred, or, its relevance to a jury's assessment of the complainant's credibility as a witness. (2) Having regard to the nature and content of the representation and the circumstances in which it was made because the term 'Inappropriately touching' is non-specific in my view it does not have such a close connection to the alleged offending so as to prove the fact stated.

However, my ruling is that [the complaint evidence to the boyfriend] can be used for credit so as to show a consistency of the evidence that she [the complainant] gives. The term 'inappropriate touching' in a general sense can refer to the allegations made and in addition she nominates the accused as the person doing it and in circumstances when her mother had left them both.

[Counsel for the accused] made a submission under s 137 of the

Evidence Act that I should exclude the evidence. In my view its probative value when used as credit is of such value that it is not outweighed by the danger of unfair prejudice to the accused. Any prejudice to the accused caused by its admission in my view can be overcome by directions from myself. So the conclusion of all that is that it can be used as credit.[13]

12 Dunn contends that the evidence of the complaint made to the boyfriend was not sufficiently probative under s 377 of the CPA because it lacked sufficient specificity and differed significantly from the evidence given by the complainant in her VARE. He contrasts this evidence with that in contest in PRW and Stark which in each case was sufficiently identifiable and specific to add weight to the complainant's evidence. In the present case, he points to the concessions made by the complainant at trial during cross-examination that she had not used the words 'sex' or 'sexually' or 'assaulted' when she spoke to her boyfriend, and to her acceptance that it was a matter of interpretation that what she was referring to was sexual assault. Likewise, he relies on the boyfriend's agreement during cross-examination at trial that he was paraphrasing when he referred in his VARE to the complainant as having been 'sexually assaulted' and that Dunn would 'touch her inappropriately'. In these circumstances, Dunn submits the admission of the complaint evidence caused the trial to miscarry.

13 In my view, the complaint evidence on its face clearly supported the complainant's credibility as to be sufficiently probative by revealing the general nature of the conduct which was consistent with the nature of the specific acts later identified by the complainant in her VARE. In particular, the complaint evidence was consistent with the evidence that the offending occurred on each occasion when the complainant's mother had left the house. Furthermore, it explained why the complainant had delayed telling anyone, namely, because she was nervous and considered that she would not be believed. Moreover, the generality of the complainant's complaint to her boyfriend was on a par with the generality of the complaint she made to her mother on 9 March 2015, to which no objection was made by experienced trial counsel.

14 I consider that the judge correctly understood that the complaint evidence did not have such a close connection to the alleged offending that it was sufficiently probative to establish the conduct alleged but, by contrast, it was sufficiently probative to bolster the complainant's credibility because, as was said in Stark, by reference to PRW, it was 'an identifiable specific representation which in the circumstances of the particular case does add weight to the complainant's evidence by constituting a representation that was likely to be made if the fact contained in the representation had occurred'.[14] In this respect, the judge faithfully followed the analysis by this Court in Stark that admissibility under s 377 allows for alternative purposes for which the evidence can be adduced, and evidence is admissible under s 377 if it is 'sufficiently probative' for the purpose of supporting the complainant's credibility.[15]

15 In my view, this ground is not reasonably arguable.

16 Dunn submits that the judge should have excluded the complaint evidence under s 137 of the Evidence Act 2008 because its probative value was significantly undermined by the fact that the boyfriend was present at the police station on 9 March 2015 when the complainant gave her VARE, and the boyfriend was aware that she was making a complaint about alleged sexual offending against Dunn. The result was to leave the boyfriend's evidence of complaint with little, if any, probative value, while the danger of unfair prejudice to Dunn was considerable.

17 The Crown submits, and I agree, that this evidence was 'what might loosely be termed traditional complaint evidence', being evidence of the circumstances in which the complainant first made a complaint and it was adduced to bolster her credit. Unlike the approach that has sometimes been taken to tendency or coincidence evidence drawn from a variety of witnesses, the probative force of traditional complaint evidence is not derived from the improbability of concoction or contamination. Moreover, for the purpose of exclusion under s 137, the evidence was assessed by the judge on the basis that the prosecution case had to be taken at its highest, and as such, the issue of innocent infection did not arise. This approach was specifically endorsed by the majority of the High Court in IMM v The Queen[16] when it said:

[Section] 137 require[s] an assessment of the probative value of the evidence tendered. ... the dictionary definition of the 'probative value' of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which 'could rationally affect ... the assessment of the probability of the existence of a fact in issue'.

...

The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. ...

...

[T]he requisite probative value of the evidence is not spelled out in s 137. It requires the 'probative value' of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[17]

18 In my view, this ground is not reasonably arguable.

19 In the alternative to grounds 1(a) and 1(b), Dunn submits that, even though no such direction was sought at trial, the judge ought to have given the jury a direction that it should ignore the boyfriend's evidence of the complaint made to him, or direct that the evidence was incapable of bolstering the complainant's credit. Dunn argues that such a direction was necessary and there was a substantial and compelling reason to give such a direction although the written case does not identify what the substantial and compelling reason might be.

20 The Crown responds by noting that no such direction was sought by experienced trial counsel. It submits that because of the absence of any request by counsel Dunn must demonstrate that direction must have been 'necessary' in accordance with the conditions described by this Court in Xypolitos v The Queen.[18] The Court in that case said:

Where it is submitted on appeal that the trial judge erred in failing to give the direction, the question is whether the trial judge ought to have formed the view that it was necessary to give the direction to avoid a substantial miscarriage of justice. If not, there was no error and the ground of appeal must fail.[19]

21 The Court in Xypolitos was concerned with s 15 of the Jury Directions Act 2013. That Act was repealed on 29 June 2015 and replaced by the Jury Directions Act 2015. The relevant provision in the new Act in relation to a trial judge's power to give a jury directions even where such a direction is not sought by trial counsel is to be found in s 16, which provides:

16 When trial judge must give direction regardless of parties' views

(1) The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

(2) Before giving a direction under this section, the trial judge must -

(a) inform the prosecution and defence counsel (or, if the accused is unrepresented, the accused) that the trial judge is considering giving the direction; and

(b) invite submissions from the prosecution and defence counsel (or the accused, as the case may be) about the direction and whether there are substantial and compelling reasons for giving the direction.

22 The 'substantial and compelling reasons' test was introduced in order to simplify and clarify the circumstances in which a trial judge might give a jury direction, notwithstanding that neither party sought one. The new provision requires that the parties have an opportunity to provide submissions on why a direction should or should not be given thereby ensuring that 'appropriate weight is given to the forensic decision making of the parties',[20] and as a safeguard to protect the rights of the accused.[21] It was anticipated that a judge would exercise the power under the new test 'in very limited circumstances, for example, if counsel is incompetent.'[22] There is no suggestion of that type here.

23 In my view, this ground is not reasonably arguable.

24 In support of ground 2, Dunn relies upon evidence given by the boyfriend during cross-examination that he had attended the police station with the complainant when she reported a sexual assault, and that she had not described to him the conduct in any detail. Following that evidence, the judge gave the following direction to the jury:

Now, I want to give a direction of law about how that evidence can be used briefly. That is [what] we call complaint evidence. You can use the contents of the complaint if you accept that it has been made for this witness, ..., in only one way. That is you can use that complaint to him by the complainant to assess the complainant's credibility.

The fact that the complainant made the complaint and the content of that complaint may show that her account of the events in question has been consistent, always bearing in mind that the complaint has come from the complainant. So that is the only way you can use that evidence and I will go into it in a bit more detail before you go out to consider your verdict.

25 During the judge's charge, he returned to the use that the jury could make of the complaint evidence in the following terms:

Now how you can use the complaint evidence, I directed you already in relation to [the boyfriend's] evidence, you can use it to assess the credibility of the complainant. In relation to the complaint made to the mother, you can use the contents of the complaint as evidence in the case, that is, of what it says and I have read it out to you.

When considering this evidence, it is important to remember, just because a person says something on more than one occasion, that does not mean that what she says is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of being repeated.

Second, you can use the complaint to assess her credibility. The fact that the complainant made the complaint and the content of that complaint may show that her account of the events in question has been consistent.

In this case the prosecution submitted that the fact that the complainant complained about the alleged incident at the time that she did makes it more likely that she is telling the truth. The defence dispute this, saying she did not complain at the time and if it had have occurred, she would have.

The defence also put to you as a possible reason for how this all came up, as demonstrated by the complaint to [her mother]. That is, having an argument and the mother makes a threat to send her off to her father who is a child abuser of the other daughter, the father of that daughter apparently abused the child sexually. In the course of anger and an argument, the mother - I normally tell my kids I will stop the car and you can get out and walk home - but this is a much more threatening thing to say to a child. 'I am going to send you off to your father who has already sexually abused your elder sister.'

The defence say in that context, she comes back at her mother by saying, 'Well look at the bloke you've just got rid of. He abused me.' Words to that effect.

So the defence put that up as a reason as to why all this has come about and once she has made the allegation in the general terms that she did to her mother, the police are brought in and she is locked into the story and cannot change it because she is locked into it. That is the defence submission to you.

Now the prosecution say there is no reason to worry about motive here, that she is a credible, honest and truthful witness and the reason why she is telling you these things is because it happened.

It is important to remember that if you reject the defence argument as to why this came up, that is not the same thing as accepting the complainant was telling the truth. All you are doing is eliminating one possible reason for rejecting the complainant's evidence. It is still possible that she is lying. For example, she may have a motive for lying the accused does not know about. Just because you have rejected one possible motive does not mean that there cannot be another.

Similarly, rejecting the motive suggested by the defence will not make the complainant's evidence any more credible. You must assess the complainant's credibility on the basis of her testimony and consideration of the other evidence in the case, not on the basis of whether the accused can tell you why she might be lying.

That goes back to the basic principle, the defence do not have to prove to you or even demonstrate to you or even suggest a motive. They do not have to do anything. The fact that they have done it does not mean that there is any onus on the defence to prove that.

So if you reject the motives suggested by the defence it does not make her evidence any more credible. You assess her credibility on the basis of her evidence and consideration of the other evidence in the case, not on the basis of whether the accused can you tell you why she might be lying, because it is for the prosecution to prove beyond a reasonable doubt that the complainant is telling the truth.

The accused is not required to prove his innocence and he is not required to prove that the complainant had a reason for making false allegations. You can only convict the accused of the charge you are considering, if on the basis of all the evidence, you are satisfied of his guilt beyond reasonable doubt.

26 Dunn submits that while his counsel did not put to the boyfriend in cross- examination that his memory of the complaint was tainted by the surrounding circumstances, it was nevertheless abundantly clear that it was. Again, even though no direction was sought at trial and the process under s 16 of the Jury Directions Act 2015 was not followed, Dunn contends that there was a substantial and compelling reason for the judge to direct the jury that they could not use the complaint evidence to bolster the complainant's credit without first being satisfied that it was not tainted by innocent infection. Dunn argues that the judge's failure to give the relevant direction caused the trial to substantially miscarry.

27 The difficulty for Dunn is that he is unable to demonstrate why it was 'necessary' for the judge to give the relevant direction in accordance with the test in Xypolitos; nor can he properly identify what was the substantial and compelling reason which should have prompted the judge to give the relevant direction. As mentioned above,[23] Dunn is using an inapt test for admissibility by attempting to import notions of contamination that have sometimes be used for evaluating tendency and coincidence evidence when assessing traditional evidence of first complaint.

28 It is apparent from the extract from his Honour's charge that he went to considerable lengths to ensure that Dunn received a fair trial and that the jury was well aware that no onus lay on the defence to prove that the complainant or the boyfriend was lying. It was made clear to the jury that the making, or repeating, of the complaint by the complainant did not in itself establish its truth. It was a matter for the jury to assess the complainant's credibility on the whole of the evidence.

29 In my view, this ground is not reasonably arguable.

30 It follows that leave to appeal should be refused.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[3] Indictment F13255010.1, dated 14 September 2016. The fourth charge on an earlier indictment had alleged incest by the penetration of a finger into the complainant's vagina but a new indictment was filed over on 14 September 2016 with charge 4 amended to a further charge of indecent act with a child under the age of 16. Dunn was re-arraigned.

[4] DPP v Dunn (a pseudonym) (Unreported, County Court of Victoria, Judge Montgomery, 13 October 2016) [9] ('Sentencing reasons').

[5] These portions of the boyfriend's VARE were identified by the judge in his ruling on the admissibility of this evidence.

[6] The applicant's written case refers to a ruling given on 16 September 2016, but this would appear to be an error.

[7] Unreported revised ruling, County Court of Victoria, Judge Montgomery, 13 September 2016 ('Ruling').

[10] (2013) 45 VR 1 ('Stark').

[11] PRW v The Queen [2011] VSCA 381 ('PRW'). The quotation is from the judgment of Buchanan JA, with whom Whelan AJA and Robson AJA relevantly agreed.

[12] Ruling, 73-4 (emphasis as in Stark).

[14] See [10] above.

[16] [2016] HCA 14; (2016) 257 CLR 300 ('IMM').

[17] Ibid 313 [42], [44], 314 [47].

[18] (2014) 44 VR 423 ('Xypolitos').

[20] Explanatory Memorandum, Jury Directions Bill 2015, 10.

[23] See [17] above.