Furness v The Queen [2017] VSCA 40

CRIMINAL LAW - Application for leave to appeal - Conviction - Whether trial judge erred in allowing evidence to be admitted - Whether trial judge ought to have considered reliability of evidence - Witness' account initially elicited by leading questions from informant - Evidence to be taken at its highest - Trial judge cannot assess credibility or reliability of evidence - IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529, applied - Evidence Act s 137 - Application for leave to appeal refused.

2 On 16 November 2015 the applicant, Duane Furness, was arraigned on an indictment containing three charges of sexual penetration of a child under 16 and one charge of indecent act with a child under 16. He pleaded not guilty.

3 The trial judge heard a number of pre-empanelment applications and made a number of rulings. One ruling[2] concerned an application by counsel for Mr Furness for leave pursuant to s 342 of the Criminal Procedure Act 2009 to cross-examine the complainant as to sexual activities other than those to which the charges related. This required the judge to consider the matters provided for in s 349 of the Criminal Procedure Act. The judge also ruled[3] on an objection by counsel on behalf of Mr Furness in relation to evidence proposed to be led on behalf of the prosecution from Mr Furness's ex-wife concerning what was said to be the accused's practice of keeping a cloth in his bedside table which he used to clean up after sexual activities.

4 The trial judge conducted a Basha hearing, and the evidence of the complainant and the evidence of the applicant's ex-wife were recorded prior to the empanelment of the jury.

5 The jury was empanelled on the afternoon of 26 November 2015. The pre-recorded evidence of the complainant, and the pre-recorded evidence of the applicant's ex-wife were played to the jury, and DVDs of their evidence were tendered as exhibits A and B. The prosecution then called evidence from the complainant's mother. The prosecution did not rely upon that evidence but called the complainant's mother at the request of the applicant. The only other evidence called in the case was that of the informant.

6 The jury retired to consider their verdict at 10.50 am on 3 December 2015. At 2.13 pm on 4 December 2015, the trial judge, having given a perseverance direction earlier that day, determined to accept a majority (11 of 12) verdict and directed the jury accordingly. The jury retired at 2.17 pm and returned with a majority verdict of guilty to all charges at 2.44 pm the same day.

7 The applicant seeks leave to appeal his conviction on the four charges on three proposed grounds. They are:

(1) The verdicts are unreasonable and cannot be supported having regard to the evidence.

(2) The learned trial judge erred in refusing the applicant leave to cross-examine the complainant as to whether she had transposed an event of mutual oral sex with someone else onto the applicant.

(3) The learned trial judge erred in permitting the prosecution to lead evidence of the use of a face washer as supporting evidence when this evidence was elicited by leading questions from the informant.

8 In relation to the first proposed ground it is contended, in substance, that the jury should have had a reasonable doubt as to the complainant's allegations. The prosecution case rested on the credibility and reliability of the complainant. There was no other direct evidence of the offences. A variety of factors are relied upon in support of a submission that the complainant's credibility and reliability were such that the jury should have had a reasonable doubt as to the applicant's guilt. The particular matters relied upon are the following:

• The fact that the complainant had not complained to police about the offences until 10 years after they had allegedly occurred.
• The complainant's criminal history for offences of dishonesty.
• The complainant's history of cannabis, alcohol and prescription medication abuse.
• The complainant's history of psychiatric disturbance.
• The vague, uncertain and unconvincing nature of the complainant's evidence, including evidence which she described as having come back to her in 'flashbacks' and her evidence that her memory of one of the incidents had improved over the last two years.
• The evidence given by the complainant's mother that was inconsistent with the complainant's evidence and was to the effect that the complainant had never been alone with the applicant.
• What was said to be inconsistency in the complainant's account of when the offences occurred in relation to when the applicant and his ex-wife had separated.
• The improbability of the applicant having committed the indecent act offence when, according to the complainant's account, that offence had occurred in the presence of the applicant's son while they were all watching television.

9 In relation to proposed ground 2, it is submitted that prior to making a complaint about the applicant to police, the complainant had been subjected to later abuse by another person of a similar type (mutual oral sex) to that which constituted two of the three charges of sexual penetration against the applicant. It is submitted that the trial judge had been wrong to refuse the applicant leave to cross-examine the complainant in relation to that incident, and, in particular, to cross-examine her about whether she had 'simply transposed' the later incident 'onto' the applicant. It was not suggested this had occurred as part of some unconscious psychological process. Rather, what the accused wished to put was that the complainant 'knew about this form of abuse so that when she was asked by police what someone else did to her, she could use her experience to falsely allege that the applicant performed the similar act with her'.[4]

10 In relation to the ground concerning the face washer evidence, the applicant contends that the evidence of the applicant's ex-wife should have been excluded as it 'was more prejudicial than probative because it was highly likely that it was concocted'.[5]

11 Given the broad nature of proposed ground 1, it is necessary to review the trial in some detail.

12 As indicated, prior to empanelment, the trial judge made a number of rulings, including two which are the subject of proposed grounds of appeal; conducted a Basha hearing; and pre-recorded the evidence of the complainant and the applicant's ex-wife.

13 The first evidence heard by the jury was the pre-recorded evidence of the complainant. She described some relevant background, giving her date of birth, address, and schools she attended at the relevant time. The applicant and the complainant lived in the same rural area, in different but nearby towns. The applicant was a friend of the complainant's parents. At that time the applicant was married and living with his then wife, Fiona McCormick.

14 The complainant was asked about the first time that something happened to her 'at the hands of Duane Furness'. She described an incident which she said had happened when she was between the ages of 7 and 9. She said she was staying at the applicant's house and was falling asleep on the couch. She was wearing a 'one piece pyjama set'. As she was falling asleep, the applicant told her to get into his bed and she fell asleep there. She said that the applicant came in and asked her to remove her clothes a couple of times, which she did. She said that he then started kissing her body down towards her vagina and started licking her vagina.

15 She continued: 'Um, and then after he licked my vagina he grabbed like a cloth from the bedside drawer and wiped my vagina with it'.

16 The complainant said that she thought the cloth was white but that it was dark and it was hard to tell.

17 She was asked how she had come to be at the applicant's house and she replied: 'Duane would have picked me up as usual'.

18 The complainant said that the applicant had often picked her up and that she would go and stay at his house. When asked whether there was any reason that she wanted to get away from her own house she said: 'Um, it wasn't the best place to live in, no'.

19 When asked how often Duane would pick her up and take her to his house she said she couldn't remember but that it was 'quite a few times'. She suggested there had been at least ten visits before the incident she had described. She said that of those ten times there were at least three occasions where her mother and her stepfather had also gone there with her.

20 The complainant was then asked: 'Did you tell your mum that you were going'? She answered: 'I would assume so'. In addition to reading the transcript, I have watched the tendered recording of her evidence. There is a long pause between this question and the answer. When asked how she and her mother got on at that stage she said she did not really have a memory of that.

21 The complainant was then asked about 'Duane and Fiona' splitting up. She said that she could recall them splitting up at some stage and remembered bags being packed near the door. She could not say whether that was before or after the first incident which she had described.

22 The complainant said that after the first incident the applicant drove her home and told her that if she told anyone he would get in 'big trouble'.

23 This alleged incident constituted the first charge on the indictment, being sexual penetration of a child under 16.

24 The complainant was asked about the next sexual encounter with the applicant. She said that this occurred at his house again, in the lounge room, while they were watching a video named Shrek. She said that they were lying together on the couch and the applicant's son was sitting on the floor. They were all watching the video. She said she could not remember anyone else being at home.

25 The complainant said that while she and the applicant were lying on the couch the applicant put the complainant's hand on his penis. She said the applicant was wearing blue jeans, his zipper was open, and his penis was out. When asked what the applicant did with her hand she said that he 'moved it up and down'. In the recording the complainant demonstrated the position of her right arm.

26 This alleged incident was the basis of charge 2 on the indictment, indecent act with a child under 16.

27 Charges 3 and 4 on the indictment were allegedly constituted by one incident where there had been sexual penetration constituted by the applicant introducing his tongue into the vagina of the complainant and sexual penetration constituted by the applicant introducing his penis into the mouth of the complainant. The complainant said that the incident had occurred in a bedroom in the applicant's house that she had not been in before. She said: 'I was laying on top of Duane, um, naked and he was naked and I was sucking his penis while he was licking my vagina'.

28 The complainant said she did not have a recollection of how her clothes came to be off. She said that she was not sure how long the incident went on for. The complainant gave a detailed description of where he was licking her.

29 Having described all of the incidents which constituted the charges, the complainant was then asked whether she recalled anything else of a sexual nature that had happened between her and the applicant. She was asked whether she had 'any memory' of anything else, and she responded: 'There's a vague memory in a tunnel, but I can't remember all the details'.

30 She was then asked to give an account of that incident. She said it occurred while the applicant was driving her home. He stopped in a tunnel and asked her to sit on his lap. When asked what he was doing she responded: 'Um, I have no memory after that really'.

31 When questioned as to whether anything sexual occurred she said: 'I think he put his penis inside me, but I don't have an exact memory, so I can't really say'.

32 When questioned further about this incident she said: 'Um, I don't remember seeing his penis, so that's why I don't know if he did. But, like through flashbacks that I have, he did'.

33 The evidence in-chief concluded with a description of the circumstances in which the complainant's family moved and she lost contact with the applicant.

34 In cross-examination the complainant was asked about the occasions when she visited the applicant's house. It was put to her that every time she went to the applicant's house she went there with her own family. She denied that. This proposition was put to her on a number of further occasions throughout the cross-examination and she denied it on each occasion.

35 It was put to the complainant that when she was initially interviewed by the police she had related the commencement of the applicant's 'assaults' on her to a time after the applicant and his ex-wife had split up. She agreed that she had done that but she said that she did not know when the applicant and his ex-wife had split up so that she could not now say whether that aspect of what she had told the police was true.

36 The complainant was asked a series of questions about the applicant's involvement with her stepfather, and about other incidents having no apparent direct relationship with the alleged sexual offending, all of which she said she could not remember.

37 A number of matters subsequently relied upon as going to the complainant's credit were then put to her. She agreed that she had left home when she was about 14. It was put to her that she then started using cannabis regularly and she said that she did when she was around 15-16 and that she was a regular user for about three months. It was put to her that she was binge drinking alcohol from her 'mid teens' and she replied saying that it had been 'from around 12'. It was put to her that she had continued binge drinking until she was 18, and she responded that she still was binge drinking (she was 20 when giving evidence.) She denied that she occasionally took illegal drugs. She agreed that she had overdosed on prescription medication a number of times. She said these were attempts to end her life. She said she overdosed regularly trying to end her life between the ages of 13 and 18. She agreed that she had been a patient at the psychiatric unit at Box Hill Hospital in 2010 and 2012 and that she had been prescribed anti-psychotic and anti-depressant medication. It was put to her that she had started getting into trouble with police when she was about 15 and she responded 'a lot younger'. Numerous appearances in court for theft, unlawful assault, offences of damaging property, and other offences were put to her and she responded saying 'possibly'.

38 The complainant was cross-examined at some length about the incident she had described in the tunnel. It was put to her that aspects of her description of that incident had not been given to the police when she had been interviewed by them and she responded: 'My memory wasn't as clear as it is now'. She agreed that she was saying that she had a better memory of that incident when giving evidence than she had had two years before.

39 The complainant was cross-examined in relation to what she had said about the face washer. The following interchange occurred:

'I suggest that Mr Furness never had any cloth like that in a bedside drawer next to his bed. What do you say about that? - - - Um, he did.

40 It was put to the complainant that none of the sexual incidents she had described had ever happened. She said that was incorrect.

41 The jury were then played the pre-recorded evidence of Fiona McCormick.

42 Her evidence was that the applicant was her ex-husband. She said she first met the complainant when the complainant was 6 or 7 years old.

43 When asked about visits to the house where she and the applicant had lived, Ms McCormick said that the complainant's family had visited three or four times. When asked how often the complainant had come to the house she said that she had come 'all the time'. When asked what that meant she said twice a week. She said that the applicant would travel close to the complainant's house when returning from work as a transport driver and that he would pick the complainant up. She said that this was 'a pretty common occurrence' and that 'she was out there nearly every weekend'. She said that the complainant had stayed overnight at their place 'a good half dozen times'.

44 Ms McCormick confirmed that they had had a video player and that they had had the video Shrek.

45 She said that the applicant 'always had a flannel or something in his top drawer' of the bedside table. She said that flannels of this kind were there 'always, pretty much'.

46 She said that there had been times when she had left the house leaving the applicant and the complainant there.

47 In cross-examination, she agreed with the suggestion that the complainant's entire family had visited their house on about six occasions for social functions. In response to a suggestion that they had stayed the night three times she responded that she thought it was once or twice.

48 It was put to her that the complainant did not come to her house by herself and she responded: 'Yes, she did. Quite a few times Duane picked her up after work on a Saturday morning in my car and brought her home'.

49 She was then cross-examined about a conversation that she had had with the informant, Simon Fisher, in late 2013. She agreed that she had spoken to him and that it concerned the complainant and her family.

50 She agreed that she had had a 'heated custody dispute' with the applicant after separating from him. She also agreed that he had reported her to Centrelink for fraud. It was put to her that she had been very angry about this and she denied that saying that she was in fact glad that what she had done with Centrelink had been revealed and that 'a weight lifted off my shoulders'.

51 It was put to her that she was telling lies about the complainant visiting their home by herself and she responded: 'No, I've got no reason to'.

52 It is necessary to note at this stage that it was not put to Ms McCormick that she was lying or mistaken about the flannels which she said the applicant had kept in the top drawer of his bedside table.

53 The next witness called on behalf of the prosecution was the complainant's mother. She gave evidence that until her daughter was about 8 they had got on very well. She was asked about visits to the home of the applicant and Ms McCormick and she said that she had visited there three or four times with her then partner and her children.

54 In cross-examination she agreed that the family had stayed overnight at the home of the applicant and Ms McCormick about three times and that they had visited there on another three occasions without staying the night. As to the complainant's visits, the following interchange occurred:

But while you were living in [location] your daughter, [name], never went to stay at Duane and Fiona's by herself, did she? - - - No, not to - not to my knowledge.

Well she was a seven or eight year old child in 2003, correct? - - - Yes.

If she had gone by herself to another town to stay with another family you would know about that, correct? - - - Correct.

The only time that you can recall when [daughter's name] was alone at Duane and Fiona's house was when your son, [name], got hurt, is that right ? - - - That's correct.

She went on to say that on the occasion when her son got hurt she had had to leave her daughter with Duane and Fiona for a few hours.

55 The final witness was the informant. In cross-examination the informant was asked about his conversation with Fiona McCormick in 2013. The following was put to him:

And you asked her among other things, did Duane Furness ever keep a face washer in his bedside table for use in, after sex, is that right? - - - Something similar to that.

56 He also agreed that he had asked Ms McCormick whether they had a Shrek video and whether the complainant had ever come and stayed at their house by herself.

57 The final addresses of counsel took place on 2 December 2015.

58 In his final address counsel for the accused said there were four 'good reasons' why they should have a reasonable doubt. They were said to be:

(1) Lack of opportunity. It was submitted that the evidence of the applicant's 'embittered former wife' as to whether the complainant ever went to the applicant's house by herself should not be accepted but rather the complainant's mother's evidence should be accepted.

(2) The complainant's credibility. Reliance was placed on her history of offences of dishonesty.

(3) The complainant's reliability. Reliance was placed on what was said to be her vagueness and uncertainty on many issues, and on her binge drinking, overdoses, cannabis use, and psychiatric admissions and medication.

(4) Lack of independent supporting forensic medical or DNA or physical evidence.

59 In relation to the evidence of Ms McCormick counsel for the accused put to the jury: 'You might think that Fiona McCormick's evidence was manufactured in a process of leading questions from the informant, Detective Fisher'.

60 No complaint is made in relation to the judge's charge, but it is necessary to note two matters.

61 The judge gave an unreliable witness warning in relation to the complainant's evidence referring specifically to her mental illness, the evidence she gave about 'flashbacks', the binge drinking and abuse of prescription drugs and cannabis.

62 In her charge the judge also gave the standard required direction in relation to delayed complaint.

Submissions - proposed ground 1 - verdicts unreasonable

63 In relation to proposed ground 1 the applicant relied upon the particular matters which I have previously set out, and upon the four 'good reasons' put to the jury.

64 In the course of oral submissions counsel for the applicant particularly emphasised what was said to be a significant inconsistency in the complainant's evidence. The complainant, when initially interviewed by police, had suggested that the offending against her had commenced after the applicant and Ms McCormick had separated. That was not an association which she made in her sworn evidence. It was submitted that the complainant recognised the inconsistency when it was put to her in cross-examination, and responded to it by saying that she was unaware when they had split up. It was submitted that she revealed by her facial expressions (smiling) that she knew she had been 'caught out'.

65 Counsel for the applicant also particularly emphasised what were said to be significant shortcomings in the credibility of Ms McCormick's evidence which ought to have led the jury to reject that evidence and accept the evidence of the complainant's mother. It was submitted that Ms McCormick's assertion that she was not angry at the applicant having reported her to Centrelink was too incredible to be accepted and that she had revealed the extent of her antipathy towards the applicant at the end of her cross-examination when she had said that their children were 'not his children'. It was also submitted that Ms McCormick had asserted ignorance of the complainant's allegations when she spoke to the informant, which was inconsistent with the informant's evidence.

66 In response, senior counsel for the respondent submitted that it was well open to the jury to accept the complainant's evidence. As to the specific matters particularly relied upon in oral submissions, senior counsel for the respondent submitted that the asserted inconsistency concerning the timing of the offending and the applicant's separation from Ms McCormick was not a matter the jury were required to see as being of real concern and was, in any event, the only inconsistency put to the complainant between what she had maintained when she first went to the police and her sworn evidence.

67 Generally, it was submitted on behalf of the respondent that whilst there was 'some vagueness' in the complainant's evidence she had given evidence in relation to each of the charges which was open to be accepted.

68 It was submitted that there was a clear conflict in the evidence concerning the complainant's presence at the applicant's house, between the evidence of the complainant and Ms McCormick on the one hand, and the evidence of the complainant's mother on the other. It was submitted that it was open to the jury to accept the evidence of the complainant and Ms McCormick.

69 It seems to me that proposed ground 1 is arguable and I would grant leave to appeal. The appeal, however, should be dismissed because it was open to the jury to accept the evidence of the complainant.

70 The principles which apply to the proposed ground are now well settled.[6] The issue is not whether the jury might have entertained a doubt as to the appellant's guilt. The issue is whether the evidence was such that the jury must have entertained a doubt. The evidence must be such as obliged, rather than entitled, the jury to reach a verdict of not guilty.

71 Addressing the particular matters relied upon by the appellant:

• Delayed complaint is not unusual in cases of this kind and the trial judge gave the jury the standard direction in relation to that matter.
• The jury had to take into account the complainant's criminal history, abuse of alcohol and drugs, and psychiatric disturbances and treatment, but it was also open to them to take into account an absence of prevarication or evasion on the complainant's part when these matters were put to her and, indeed, the fact that she volunteered additional information as to when her binge drinking commenced and how long it continued, and as to when she first had trouble with the police.
• It is true that some of the complainant's evidence was vague and uncertain, but the material particularly relied upon by the applicant in that respect concerned the incident in the tunnel. The complainant made it clear from the outset that her recollection of that incident was defective. She gave evidence of that incident because she was pressed to do so. It was not the basis of any of the charges.
• It is true that the complainant's mother's evidence was inconsistent with her evidence and with the evidence of Ms McCormick. The jury were best placed to assess that inconsistency. It suffices to say that I do not consider that the jury was bound to accept the evidence of the complainant's mother.
• There was an inconsistency between what the complainant had told the police in relation to the relationship between the offending and the applicant and Ms McCormick's separation, and what she said in her sworn evidence. It is also true that that is the only such inconsistency that was put to her. In my view it did not oblige the jury to reject her evidence.
• The issue of whether it was probable or improbable that an indecent act offence would occur whilst the younger child was present was a matter for the jury to take into account, but it was not so inherently improbable as to require rejection of the complainant's evidence.

72 It needs to be emphasised, of course, that the applicant does not rely on these particular circumstances individually but rather relies upon their cumulative effect. Counsel for the applicant articulated this in his final address to the jury and in the four 'good reasons' which he put to the jury as to why they should acquit. Having considered the evidence as a whole, and watched the complainant's evidence, I do not accept that the jury was bound to reject what she said or to have a doubt which required a verdict of acquittal.

Submissions - proposed ground 2 - leave to cross-examine as to unrelated sexual incident

73 The applicant contends that the trial judge was wrong to refuse leave to cross-examine on a sexual incident which was not the subject of the charges. Whilst the applicant's counsel used the term 'transposition', it is important to emphasise that the purpose of the proposed cross-examination was not to establish 'transposition' in the sense of a psychological phenomenon as a result of which the reliability of a complainant's identification of the person who had offended against her was called into question, as was the case in Lancaster v The Queen.[7] The relevance of the proposed cross-examination was said to be to lay the foundation for a contention that the particular experience the complainant had had between the time of the alleged offending and the time of her police complaint, had given her the knowledge which she needed, being knowledge of mutual oral sexual activity, in order to fabricate the allegation against the applicant.

74 In determining the application for leave under s 342 of the Criminal Procedure Act the trial judge was required to address the factors set out in s 349. A threshold requirement set out in s 349 is that the court must not grant leave unless satisfied the evidence has substantial relevance to a fact in issue.

75 The trial judge ruled against the application because the evidence, in her view, did not have substantial relevance to a fact in issue. The judge reached this conclusion because by the time the complainant made a complaint to the police, when she was 18, she was at an age when she was fully capable of making such an allegation, regardless of the intervening sexual experience. The intervening incident accordingly did not have substantial relevance to a fact in issue.

76 In my view, the judge's conclusion was clearly open to her. I can see no arguable error and I would refuse leave to appeal on this proposed ground.

Submissions - proposed ground 3 - face washer evidence

77 Counsel on behalf of the applicant accepted that Ms McCormick's evidence in relation to the face washer was relevant. The submission made was that the evidence ought to have been excluded in exercise of the discretion provided for in s 137 of the Evidence Act 2008. It was submitted that the evidence ought to have been excluded because Ms McCormick's reliability was adversely affected by the fact that

the informant had specifically raised with her, by way of leading questions, the issue of whether the applicant had kept a face washer in the top drawer of his bedside table.

78 This proposed ground is not arguable as it is inconsistent with the High Court decision in IMM v The Queen,[8] a decision handed down since the trial judge's ruling. The majority of the High Court in that decision held that when addressing exclusion under s 137 the evidence must be taken at its highest, and a trial judge cannot, and should not, assess the credibility or reliability of the evidence.[9]

79 In the circumstances, leave to appeal on this ground should be refused.

80 Leave to appeal should be refused on proposed grounds 2 and 3.

81 Leave to appeal should be granted on proposed ground 1 but the appeal should be dismissed.

[1] This has been omitted to ensure compliance with s 4(1A) of the Judicial Proceedings Reports Act 1958.

[2] DPP v Furness (Ruling No 2) [2015] VCC 1650.

[3] DPP v Furness (Ruling No 3) [2015] VCC 1651.

[4] Applicant, 'Submissions in Response to Respondent's Written Case', 29 August 2016, 2 [4].

[5] Applicant, 'Application for Leave to Appeal Against Conviction - Written Case for the Applicant', 5 [23].

[6] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013.

[7] (2014) 44 VR 820, 842 [76]-[78].

[8] [2016] HCA 14; (2016) 90 ALJR 529.