GAR v R

The trial

1. The applicant was charged on indictment as follows: 1. That he on 13 January 2002 at Doonside did without consent detain ER with the intention of obtaining an advantage, namely to keep the said ER in his custody and under his control. 2. Further that he on or about 14 January 2002 at Doonside did have sexual intercourse with ER without her consent and knowing that she was not consenting.
2. On 21 October 2002, the trial commenced in the District Court before Judge Naughton and a jury. On 1 November 2002, the jury returned a verdict of not guilty on the first count and guilty on the second count.

The Crown case at trial

1. The complainant, ER, and the applicant were divorced shortly before 13 January 2002, after having been married for approximately 20 years. They had a son and a daughter, E, who, in January 2002, was 12 years old and lived with ER at Doonside. On the morning of 13 January 2002, the applicant went to ER's home. E was at home when he arrived. ER arrived later in response to a phone call.
2. When ER arrived home, the applicant swore and shouted at her. After they went inside, he pinned her against the kitchen sink for about an hour and a half, during which time he moved back and forth approximately a foot and a half away. ER remained in the kitchen for a further period, during which the applicant did not allow her to move from the area. They moved into the dining room. Throughout this period, the applicant was abusive and made threats against her and a man referred to as RM.
3. Between lunch time and approximately 5 pm, the applicant was alternatively calm and abusive. He refused ER's request that he leave and, when she wanted to go for a walk with E, he said they could only go if he went with them.
4. At about 11 pm, E went to bed. ER again asked the applicant to leave and he refused. At around midnight ER went to bed. She remained fully dressed.
5. About 15 minutes later, the applicant came into ER's bedroom. ER said "Don't do this to me [GAR]. Please don't do this to me." The applicant responded by threatening to silence ER, and then threw her back on the bed, removed her clothing and had forced penile intercourse with her. Afterwards, he threatened her and followed her to the bathroom. On returning to the bedroom, the applicant set ER's alarm clock and lay on the bed next to her. When the alarm sounded at 4 am, the applicant left, but threatened to return.
6. After the applicant left, ER went to the bathroom where she vomited and then showered. After she had dressed she sat in the dining room for some time, before calling RM. At about 6 am, E came into the dining room and spoke to ER. She then rang the police who came to her home at approximately 11.20am. One of the officers gave evidence about the content of the conversation with ER. Later that afternoon, ER attended Westmead Hospital, where Dr Sterrett took a history from her, examined her and prepared a report which was tendered.
7. The evidence in the Crown case was given by ER, E and the police officers who attended the Doonside home and carried out the investigation. The Crown also relied on the report of Dr Sterrett. Photographs of ER's injuries were admitted into evidence. RM was not called as a witness. Detective Senior Constable Crompton gave evidence that he had been unable to contact him for a statement.

The defence case at trial

1. The applicant, who gave evidence, said that he went to ER's house for the purpose of inviting his daughter on an outing, and that he became concerned about what she told him about herself and RM, who was much older that she was. When ER returned home, the applicant discussed his concerns with her. He acknowledged that the discussion was at times heated, particularly in relation to RM (whom he suspected of abusing his daughter). He neither restricted ER's movements nor prevented her from leaving. As the afternoon wore on, the applicant and ER became more conciliatory. When E went to bed ER invited him to have intercourse with her in her room. Consensual intercourse then took place several times. The applicant left early in the morning.

Original Appeal

1. One of the grounds in the Original Appeal was that the trial judge erred in law in directing and/or failing to direct the jury adequately or properly as to complaint and/or the effect of complaint. In addressing that ground, Miles AJ (with whom Spigelman CJ and Bell J agreed) referred to the following aspects of the evidence that the trial judge summarised, in his directions, as complaint evidence:
2. ER's evidence in relation to ringing RM, and, in cross-examination, that she had "told him what had happened."
3. The evidence of the daughter, E, that after she woke and saw her mother in the dining room, she said "Mum I'm calling the police." ER replied "No, don't." The daughter responded "I know he raped you." ER replied "Yes he did." The daughter then rang the police.
4. Evidence about which his Honour said there was no dispute, namely that the police "received a complaint from the complainant that morning she had been raped by the accused."
5. Evidence of Constable White, who accompanied Constable Wharfe to the house about 11.30 am on 14 January 2002 and heard ER say to Constable Wharfe, "He wouldn't let us leave the house, and I couldn't call anyone, when I went to bed, he came in and raped me". This evidence was also not challenged.
6. A certificate admitted under s 177 of the Evidence Act 1995 (NSW) signed by Dr Sterrett, recording that ER arrived at the Westmead Hospital on 14 January 2002 and gave a history of abuse by her ex-husband including "threats against her life, holding her down with physical force (hand on face and throat) and vaginal rape with penile penetration and, she believed, ejaculation".
7. The Court concluded that the trial judge's directions in relation to the evidence of ER said to amount to a complaint to RM were inaccurate. Miles AJ referred to relevant authorities, and said: "evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented". Miles AJ said further at [47]: "The fact of the telephone call in itself was irrelevant. Arguably it might have been relevant for her to say in evidence that she 'told him what happened', but the probative value of her telling RM 'what happened' was well outweighed by the likelihood of unfair prejudice, the jury being invited in effect to speculate upon what it was that she said to RM. Hence evidence that she told him 'what happened', if it had been objected to, was likely to have been rejected on discretionary grounds under s 135 or 137 of the Evidence Act. Since the evidence went no higher than establishing that the complainant told RM 'what happened'. The jury should not have been left in the situation where they had been instructed that the complainant had made a complaint to RM."
8. Notwithstanding Miles AJ's conclusion that the directions on the complaint evidence were inaccurate in so far as ER's statements to RM were concerned, rule 4 of the Criminal Appeal Rules was applied and leave was refused in respect of that ground on the following bases: 1. the evidence was not objected to; 2. ER was cross-examined about her statement to RM, presumably to impugn her credit by investigating possible inconsistency; and 3. no direction was sought at the end of the summing-up.

Review Appeal

1. The basis for Barr J's referral of the matter to the Court of Criminal Appeal for the Review Appeal was a statement that E was said to have made to her father, on a visit to Long Bay Gaol (in the company of a friend of her father's, John Carroll), that she had not heard anything that night and that her mother had told her to say that she had on the grounds that that the police "wouldn't believe her [ER] by herself". It was also alleged that E had made a similar statement to the applicant's sister, JC, and to a former friend of ER.
2. The applicant initially contended that ER had procured E to give fabricated evidence at the trial which implicated him. However, following E's oral evidence on the appeal, the applicant reframed this ground to allege that E had given false evidence against the applicant "at the behest of" ER. He argued that in light of the fresh evidence about E having lied in her evidence, the Court should be satisfied as to his innocence or at least entertain a reasonable doubt about his guilt so as to warrant quashing the verdict and ordering a retrial. The applicant contended: (i) E's evidence on which reliance was placed, was "fresh"; (ii) E's evidence was credible, cogent and plausible; (iii) in the context of the evidence given at trial, the fresh evidence was likely to have caused the jury to entertain a reasonable doubt as to the applicant's guilt; (iv) alternatively, there was a significant possibility that the jury, acting reasonably, may have acquitted the applicant on the basis of the evidence as a whole, including the fresh evidence.
3. Both E and ER gave evidence at the hearing of the Review Appeal.
4. At the Review Appeal, E recanted her evidence at trial that she had heard noises at 2am, including her mother saying, "Please don't [GAR], please don't". The Court noted that the applicant's counsel did not put to E at trial that she had not heard her mother say those words. At the Review Appeal E also recanted her evidence at trial that she had heard her father say to her mother: "I don't care what you call it but I call it revenge" and that she had also heard her father say at 4am before slamming the front door, "Well, I'm fucking going". E also recanted the evidence she had given at trial that when E had got up the following morning she found her mother in the dining room, crying, and told her mother that she was calling the police. E's evidence at trial was that her mother said, "No, don't" to which E responded, "I know he raped you", to which her mother responded, "Yes, he did." E's evidence at trial was that, after this exchange, she called the police immediately.
5. At the Review Appeal, E gave evidence that she discussed the contents of her police statement with her mother and that she had felt pressured to help her mother at trial.
6. The Court on the Review Appeal found the evidence that E gave in the Review Appeal (which, if accepted, would have seriously undermined the Crown case and ER's credibility), to be "neither cogent, credible nor plausible" (at [151] (c)). The Court considered that E was prepared to agree to anything that was put by the applicant's counsel which reflected favourably on the applicant. In any event, the Court considered that, even without E's evidence, there was sufficient evidence to satisfy the jury of the applicant's guilt beyond reasonable doubt.
7. By contrast, the Court found ER's evidence given on the Review Appeal that she did not know what her daughter had, or had not, heard in the early hours of 14 January 2002 and denied having seen E's statement or discussed its contents with her "not only credible but cogent" (at [151] (c)).
8. The Court addressed the evidence of E and ER in the following terms at [151]: (c) In our view, the evidence given before this Court by ER was not only credible but also cogent. On the other hand, that of her daughter, E, was neither cogent, credible nor plausible. In particular: (i) were it not for the fact that in her evidence before this Court she accepted, indeed practically volunteered, that her evidence at trial as to what she had heard in the early hours of the morning of 14 January was untrue, we would have regarded her admission to her father in April 2005 as well as her statements to her aunt and Ms Toobey that she had lied in giving that evidence as explicable by her desire to placate her father and, as she said, to give him "some hope"; . . . (iii) as to the retraction by E of her answer to Q7 in her ERISP when, without warning, she said that that answer to Q7 was untrue, applying, as it did, to the answers in her evidence-in-chief at trial which we have emphasised at [50] above, we would not regard that retraction as plausible or capable of belief given our conclusion, referred to at [94] above, that it was clear from the evidence that she gave before this Court when cross-examined on behalf of the appellant, that she was prepared to agree to anything that was put to her by her father's counsel and which reflected in the appellant's favour; (iv) in any event, there were a number of inconsistencies or unsatisfactory aspects in her evidence given before this Court first, with respect to whether or not she had told her mother on the morning of 14 January that she had not heard anything in the early hours of that morning; and, second, with respect to her evidence that her mother was aware that the contents of her statement to the police, as well as the evidence that she proposed to give at trial, was false to her mother's knowledge. [Emphasis added.]
9. The Court dismissed the appeal.

Relevant legislation

1. Section 78 of the Crimes (Appeal and Review) Act provides for applications to be made to this Court by a convicted person. Section 79 relevantly provides: (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. . . . (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
2. In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 252 Johnson J summarised the relevant authorities and referred at [8] to the need for there to be "available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet".

Previous applications for review of conviction

1. The present application is the third application to the Court pursuant to s 78 of the Crimes (Appeal and Review) Act for a review of the conviction.

The present application

1. As referred to above, the present application is based on the contents of the two documents reproduced in full above. The first apparently comprises statements by E and ER, both dated 2 December 2015, in which: E said that her mother asked her to falsely corroborate her evidence and that her statement to police and evidence was false; and ER said that E's statement is true. The second is ER's handwritten statement dated "2.10.15" which was apparently signed by Mr West in the bottom right hand corner.
2. There is no evidence as to how these statements came into being and no explanation to illuminate how, or why, ER's typed statement dated 2.12.15 and her handwritten statement dated 2.10.15 came into being. Nor is there any explanation as to the opening words of the typed statements: "Under the inducement that the evidence will not be used to prosecute any offence against me"
3. The Crown submitted in its written submissions dated 27 June 2016 that it was necessary for the Crown to investigate the provenance of the documents in order to ascertain whether they were verifiable and argued that the purposes of ss 78 and 79 could appropriately be served by such an inquiry. To that end, the Crown Solicitors Office arranged for a private investigator to interview Mr West to ask whether he witnessed the signatures of E and ER on the typed document and signed the bottom right hand corner of the handwritten document. Mr West signed a statement dated 15 June 2016 which the Crown has attached to its submissions.
4. Mr West's statement reads as follows: "1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.
5. I am a registered Justice of The Peace within NSW.
6. My JP number is 134279.
7. I have examined the attached document marked Annexure 'A' [the document that contains the typewritten "induced" statements of E and ER dated 2 December 2015]. The Justice of Peace details and signatures written on the document are legitimate and were signed by myself.
8. I have examined the attached document marked Annexure 'B' [the document which contains the handwritten statement of ER dated 2 October 2015]. I do not remember previously sighting the document.
9. I do not remember the documents or the persons mentioned within the documents.
10. I sign all documents relating to Justice of Peace at my residential address.
11. I do not read the contents of documents prior to witnessing the signatures."
12. The applicant contended that the effect of the new typewritten statements of E and ER was to undermine the reasons of the Court of Criminal Appeal in the Review Appeal and undermine the credibility of the evidence of E and ER, on the basis of which he had been convicted by the jury. He argued: "It is submitted, the findings of the Court in GAR (1) 2010 [the Review Appeal] are acutely flawed as they critically relied on the credibility of ER, her credibility now devastated by the 2015 fresh evidence. This is particularly with respect to the Court's findings regarding ER's complaint, and the corroboration of the medical evidence."
13. The Attorney-General on behalf of the Crown submitted that: the statements do raise a doubt or a question as to the applicant's guilt and as to the evidence of E and ER; there do not appear to be any reasons for this Court to refuse to consider or otherwise deal with the application; and the application discloses sufficient information to enable the conviction to be properly considered. The Crown submitted that Mr West's statement establishes, "at a fundamental level" that the Court can act on the statements. It also submitted that the new material relied on by the applicant, in light of Mr West's statement, gives rise to a relevant sense of unease or disquiet about the applicant's guilt. The Crown contended that, on this basis, it could appear to the Court that there is a "doubt" or "question" about the applicant's guilt within the meaning of s 79(2) and that, accordingly, it would be appropriate for the matter to be referred to the Court of Criminal Appeal for the whole of the case to be dealt with as an appeal.
14. In his submissions in reply the applicant referred this Court to M v The Queen (1994) 181 CLR 487 and the applicable test for determining whether a verdict returned by a jury ought be set aside as unreasonable or not able to be supported having regard to the evidence. He submitted as follows: ". . . ER stage-managed her 12 year old daughter (E) to falsely corroborate her account of what she swore at trial she had said to the applicant, "please don't [GAR] please don't," at the time she was allegedly being sexually assaulted. … It is submitted that The CCA is compelled to consider that if the jury had the knowledge of ER's conspiracy to pervert the course of justice by manipulating E in the way ER has now admitted with the 2015 fresh evidence, how would that evidence impact on the jury members minds. … It is submitted that the Court is required to recognise that if ER is prepared to concoct and promote a false version of events and pressure a child to commit the criminal offence of perjury to bring them into play, then it is also possible, indeed likely, that ER would concoct her own version of events offered in her statements, the witness box at trial and the Court of Criminal Appeal."

Consideration

1. The particular factual matrix presented by the new material relied on by the applicant is new, in that, previously, he relied on oral statements made by E to himself and to third parties to the effect that her evidence at trial was false. This matter was extensively investigated in the course of the Review Appeal, in which E gave evidence and was not believed for the reasons extracted from the Court's judgment set out above. Although E's statement dated 2 December 2015 is typewritten, whereas the earlier statements were oral, the effect of several statements made by E since the applicant's conviction is to undermine the evidence she gave at the trial and concessions she made in the Review Appeal. Although there are some differences between the recent statement and earlier statements, they are substantially similar in that they support the applicant's innocence and are inconsistent with E's evidence at trial.
2. The Court of Criminal Appeal in the Review Appeal had an opportunity to hear and see E's evidence and assess her credibility. Its finding that she was not to be believed because she was prepared to say anything that would advance the applicant's position reflected that advantage.
3. What is apparently new is the statement by ER that E's statement was true. This statement is inconsistent with ER's evidence at trial and her evidence at the Review Appeal. It is also, in some respects, inconsistent with the handwritten statement dated 2 October 2015 although the inconsistency is not direct (since the earlier statement relates to the incident itself whereas the typed statement relates to what ER said to E).
4. In my view, the question whether E and ER were telling the truth about the incident and its immediate aftermath has already been fully investigated both at the trial and on the Review Appeal. That a witness or victim might, after an offender has been released from custody, appear to recant from evidence given at a trial or on an appeal, does not necessarily create a doubt about the offender's guilt. Such recanting could also be explained by other factors. In the case of E, her relationship with her father, the applicant, is likely to be substantially affected by what E says or said about his conduct. ER, too, might be inclined to say other than the truth in order to assist E, or in the belief that nothing is to be gained by not providing a statement that the applicant has requested, since he has already served his sentence. Nonetheless, whatever ER said in the "induced" statement, she adhered to her evidence that the offence occurred, as appears from her handwritten statement dated 2 October 2015.
5. That E and ER were apparently prepared to sign these statements in the presence of Mr West, as a Justice of the Peace, does not make their statements credible. It merely tends to prove that there were not fabricated by the applicant. The statements appear to have been made by E and ER, after their having received an "inducement that the evidence will not be used to prosecute any offence" against either one of them.
6. It does not appear to me that there is a doubt or question as to the applicant's guilt, or any doubt as to the evidence of E and ER in the trial. Any doubt which existed prior to the Review Appeal has, in my view, been removed by that appeal. I am not persuaded that it is necessary to consider the application further. Accordingly the application is dismissed.

Amendments 02 September 2016 - paragraph numbering added 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: 02 September 2016