GZ v The Queen [2015] ACTCA 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: GZ v The Queen

Citation: [2015] ACTCA 11

Hearing Date(s): 23 February 2015

Decision Date: 23 February 2015

Before: Murrell CJ, Burns J and Robinson AJ

Decision: The appeal is upheld and the matter is remitted to the Supreme Court of the ACT for retrial.

Category: Principal Judgment

Catchwords: CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against children – sexual intercourse with a child under the age of 10 – found guilty at trial. APPEAL – Appeal from the ACT Supreme Court – whether verdicts were unsafe and unsatisfactory – whether trial miscarried because of the failure of counsel to adduce “good character” evidence – whether the trial miscarried because of the admission of “bad character” evidence contained in the complainant’s record of interview with police – held it was open to the jury to conclude that the accused was guilty of the two offences with which he was charged beyond reasonable doubt – held that verdicts were not unsafe and unsatisfactory – held that trial miscarried because of the failure of counsel to adduce available “good character” evidence and the admission of “bad character” evidence – appeal upheld and matter remitted for retrial.

Legislation Cited: Court Procedures Rules 2006 (ACT) r 5531 Evidence Act 2011 (ACT) s 137

Cases Cited: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Green v The Queen (1971) 126 CLR 28 M v The Queen (1994) 181 CLR 487 Papakosmas v The Queen (1999) 196 CLR 297 R v Compton and Barrett [2013] SASCFC 134 SKA v The Queen (2011) 243 CLR 400 TKWJ v The Queen (2002) 212 CLR 124

Parties: GZ (Applicant) The Queen (Respondent)

Representation: Counsel Mr W Terracini SC with Mr T Quilter (Applicant) Mr J White SC with Mr M Reardon (Respondent)

Solicitors Capon & Hubert Lawyers and Mediators (Applicant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 20 of 2014

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 14 April 2014 Case Title: R v GZ Court File Number: SCC 377 of 2009

The COURT:

1. On 14 April 2014, the appellant was found guilty by a jury of two charges, each alleging that on 8 April 2009 he engaged in sexual intercourse with a child, OH, who was at that time under the age of 10 years.

2. On 5 June 2014, he was sentenced to imprisonment for seven years and six months on each count, with the sentence on the first count commencing on 14 April 2014. The second sentence commenced six months after the commencement of the first sentence, meaning that the total aggregate sentence was one of eight years’ imprisonment. The primary judge set a non-parole period of four years and six months commencing 14 April 2014.

3. The appellant appealed against the verdicts and the sentences imposed by the primary judge. The grounds of appeal against conviction were:

(a) the verdicts were unsafe and unsatisfactory;

(b) the primary judge erred in failing to exclude the DNA evidence;

(c) the trial judge erred by failing to give an “indispensable link” direction in relation to the DNA evidence;

(d) the trial miscarried because of the primary judge’s explanation of the concept “beyond reasonable doubt”;

(e) the trial miscarried because of the primary judge’s failure to give a “separate counts” direction in her final directions;

(f) the trial miscarried because of the admission of “bad character” evidence contained in the complainant’s record of interview with police; and

(g) the trial miscarried because of the failure of counsel to adduce “good character” evidence.

4. The appeal was heard on 23 February 2015. Immediately following the appeal, we announced our decision setting aside the convictions and sentences and ordering a new trial of the charges. At that time we indicated that we would deliver our reasons at a later date. These are those reasons.

Factual Background

5. The complainant, OH, was five years old at the time of the alleged offences. The appellant was her step-grandfather, being married to her maternal grandmother. He was known to the complainant as “Poppy”. The complainant and her mother had regular contact with the appellant prior to the alleged offences. In January 2009, about three months before the alleged offences, the complainant’s mother told the appellant she was not comfortable with him and the complainant showering together.

6. On 8 April 2009, the complainant’s uncle was in hospital seriously ill. The complainant, her mother, her maternal grandmother and the appellant visited him at the hospital. At about 5:00 pm, the appellant drove the complainant back to his house so that the complainant’s mother and maternal grandmother could spend further time with the complainant’s uncle, who ultimately died that evening. Between 5:00 pm and 7:00 pm, the complainant and appellant were alone at the appellant’s home and it is alleged that two offences occurred during that period. The complainant alleged that two acts of cunnilingus occurred, the first in the lounge room and the second in the spare bedroom.

7. The complainant’s mother attended the appellant’s home at about 7:00 pm to collect the complainant, and when she arrived the complainant was watching television. As they were travelling home in the car, the complainant said to her mother, “Poppy licked my vagina”. When they arrived home the complainant’s mother noticed her daughter was “visibly anxious and nervous”. Shortly afterwards, the complainant went to bed, leaving the tights and underwear that she was wearing at the time of the alleged offences entwined on the bedroom floor. The complainant’s mother looked at the complainant’s vagina when she was getting ready for bed but did not notice any redness.

8. The following day, the complainant went to school, after which her mother took her to the Winchester Police Centre in Belconnen where she participated in a recorded interview commencing at 1:08 pm. The complainant’s mother also brought the tights and underwear in a single bag, and gave them to the police. At about 3:00 pm, the complainant was examined by a paediatrician who took a vaginal swab, but did not notice any inflammation, scratches or redness to the vagina. The vaginal swab and the underwear the complainant was wearing at the time of the alleged offences were later forensically examined. The appellant’s DNA was found on the inside of the complainant’s underpants.

9. Following the interview with the complainant, police obtained a warrant to search the appellant’s home. The search warrant was executed at about 9:50 pm and the appellant was provided with a copy of the search warrant which indicated he was suspected of having “sexual intercourse”, but of which no further detail was given of this allegation, with a young person. During the course of the execution of the search warrant, the appellant provided police with a version of events which was recorded and later played to the jury. The appellant said that, while the complainant was at his house, she came back from the toilet with no pants on. She said that she was itchy. The appellant said that he observed redness to the area of her vagina, and he asked if anyone had touched her or even licked her. The appellant said, “sometimes adults do those sorts of things, but you will find out. You’ve got plenty of time to find out about that”. The appellant’s computer was seized and forensically examined, but no child pornography or other adverse material was found. On 10 April 2009, the complainant’s mother spoke to the appellant about the allegations, which he denied. She then spoke to the complainant again, but the complainant maintained the allegations. At trial the appellant gave evidence denying the allegations.

Grounds of appeal

10. At the conclusion of the appeal, the Court was satisfied that the trial had miscarried as a consequence of the admission into evidence of statements made by the complainant in her recorded interview with police which suggested that the appellant had engaged in conduct similar to that alleged against him in these offences; and because of the failure of the appellant’s counsel to adduce available evidence of good character at the trial (grounds 2 (f) and (g)).

11. These reasons will focus on these grounds. In the light of the fact that the appellant is to be retried and the evidence is likely to be different at that trial and unusual aspects of the past trial are unlikely to be repeated, it is not appropriate to make comment with respect to the remaining grounds of appeal. We note that ground 2 (c) was abandoned by the appellant. It, however, remains for us to deal with the ground that the verdicts were unsafe and unsatisfactory, for that would have led to an acquittal if it had been upheld.

Ground 2 (f) – the trial miscarried because of the admission of “bad character” evidence.

Ground 2 (g) – the trial miscarried because of the failure of counsel to adduce “good character” evidence.

12. It is convenient to consider these grounds together, as we were satisfied that it was a combination of these grounds that caused the trial to miscarry. The Crown led the following questions and answers in the complainant’s recorded interview with police, which was open to the interpretation that the complainant was asserting that she had been the subject of acts of sexual molestation by the appellant on occasions other than those with which are the subject of the current charges:

Q 19: He licked your vagina, tell me everything about that. A 19: Um, he told me to sit on his belly so he can lick it and that’s all I know before, I forget all the other ones. Q 20: So has this happened more than one time? A 20: Just, um, a long time ago we started it. I haven’t been doing that for a long time because I went to my Nanny and Poppy’s house while Nanny and my mum were gone to hospital. (Emphasis added)

13. We consider that the evidence highlighted in the previous passage should not have been led by the Crown. It was not objected to by counsel appearing for the appellant at trial, for reasons which are not immediately clear to us. Nor in the alternative did counsel seek directions as to the use of the evidence. In the absence of an application by the Crown to lead this evidence for a specific purpose, for example, as evidence of relationship or tendency, we consider that this evidence should not have been led at all. The evidence should have been edited out.

14. Adducing this evidence invited the jury to speculate on what the complainant meant when she said, “I forget all the other ones.” The evidence was prejudicial to the accused. There was a real danger that the jury would or might understand the complainant to be suggesting that the appellant had engaged in this conduct on prior occasions. If this was so, then the jury may well have been swayed to consider this past conduct in relation to the probabilities of the counts the subject of the indictment. There were no directions sought or given by the trial judge as to the use of the highlighted evidence in this regard.

15. This was compounded, the appellant submitted on appeal, by the failure of his counsel at trial to lead available evidence of his good character. It was accepted by the Crown that the appellant was a person of prior good character and evidence attesting to his good character was adduced at the sentence hearing.

16. We can think of no forensic reason for the appellant’s then counsel not to have raised the appellant’s good character before the jury. There was no suggestion on appeal that the Crown, at trial, was in a position to rebut evidence of good character with evidence of bad character.

17. Significantly, this was the type of case where evidence of the good character of the accused would be particularly important. The jury would have been directed that they must take the evidence of the appellant’s good character into account both in determining whether he was guilty of the offence and in determining the weight and credibility to be given to his evidence. Where the Crown case largely rose or fell on the evidence of the complainant and the appellant gave evidence denying the offences, the question of credibility was particularly important.

18. The Crown submitted that the appellant had raised his good character at trial by cross-examining of one of the police officers who conducted a search of his home to the effect that no child pornography had been located on the appellant’s computer. It may well be, as submitted by the Crown, that this evidence was relevant to the appellant’s character, but only in a particular respect. The Crown accepted that no evidence of good character in a general sense was led.

19. In TKWJ v The Queen (2002) 212 CLR 124, Gaudron J said, at [33]:

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that “when viewed in combination with the evidence given at trial… the jury would have been likely to entertain a reasonable doubt about the guilt of the accused”. (Citations omitted)

20. Later in the same decision, McHugh J said at [97]: Where counsel’s conduct is in issue, the court must examine all the circumstances including the wide discretion that counsel, as an officer of the court, had to conduct the trial in the manner that he or she thought was in the best interests of the accused. If the court concludes that, despite that discretion, a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. If it does, a miscarriage of justice will have occurred and the conviction must be quashed.

21. At the conclusion of the appeal, we were satisfied that there could be no forensic advantage to the appellant in not placing before the jury evidence of his good character. We were satisfied that the inevitable inference was that counsel either overlooked this aspect of the case or made a fundamental error in not leading this evidence. We were satisfied that there was a significant possibility that the failure to lead evidence of good character of the appellant affected the outcome of the trial. This was particularly so in circumstances where inadmissible evidence suggesting that the appellant was a person of bad character had been led by the Crown. For these reasons, the appeal was upheld.

Ground 2 (a) – Unsafe and unsatisfactory

22. It is necessary to consider this ground of appeal, notwithstanding our decision that the appeal must be upheld on grounds 2 (f) and (g), because if the verdicts were unsafe and unsatisfactory the appellant would be entitled to be acquitted, rather than be remitted for retrial.

23. The decision in SKA v The Queen (2011) 243 CLR 400, at [11] – [14], confirmed the function of an appellate court when asked to determine whether a verdict is unsafe and unsatisfactory was stated by the High Court in M v The Queen (1994) 181 CLR 487, where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted)

24. The majority went on to say, at 494:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (Citations omitted)

25. As the appellant submitted, this was largely a case of the complainant’s word against that of the appellant. The appellant submitted that, even allowing for any benefit the jury may have had in assessing credibility, the complainant’s version should not be accepted beyond reasonable doubt. In particular, the appellant pointed to the following matters as raising a doubt about the guilt of the appellant:

(a) the complainant’s record of interview with police, the appellant said, even when read as a whole, was “rather vague”;

(b) during the interview and her evidence the complainant never described the physical feeling of the assaults;

(c) the complainant failed to recall a lot about the incident during the interview with police even though the events were fresh in her mind;

(d) in contrast, she was able to describe the route from her home to the appellant’s home with some degree of fluency;

(e) she gave evidence on 10 August 2011 that the appellant told her he was going to lick her vagina while they were in the car on the way back from the hospital, which was not something that she had said in her recorded interview with police;

(f) the complainant, during her recorded interview, said that she was licked while sitting on the appellant’s belly. The appellant submitted this was impossible. The complainant then gave an inconsistent version when asked to demonstrate in court using dolls; and

(g) the complainant gave what the appellant submitted was “odd” evidence about having her ears pierced in Sydney, which was possibly inconsistent with her mother’s evidence.

26. Having carefully considered the evidence, we were not persuaded that the verdicts were unsafe or unsatisfactory. Whilst the prosecution case largely relied upon the evidence of the complainant, there was material which was capable of supporting her evidence. We considered that the DNA evidence was capable of supporting the complainant’s evidence, particularly bearing in mind the following propositions derived from the evidence in the trial:

(a) the inside of the complainant’s underwear revealed a DNA profile of at least two individuals, whereas the outside revealed at least three contributors;

(b) there was a greater amount of DNA located inside the complainant’s underwear than there was on the outside surface, which may suggest that the DNA on the inside of the underwear came from a stronger source of DNA;

(c) generally, bodily fluids are a greater source of DNA than touching; and

(d) the lack of amylase was unremarkable and does not lead to the conclusion that the appellant’s contribution to the DNA profile was from a source other than saliva.

27. In addition, the Crown relied upon immediate complaint by the complainant, although it must be accepted that this is not evidence independent of the complainant: see Papakosmas v The Queen at [17]. The Crown also relied on statements made by the appellant in his interview with police as implied admissions, such as describing a conversation with the complainant about the very type of sexual activity of which she complained. The appellant’s evidence, of course, would explain that coincidence by reference to the conversation itself, but a jury may not accept that explanation. The Crown submitted that the version of events given by the appellant in his interview with police was inherently implausible, and on material aspects was not supported by the observations of other witnesses.

28. The Crown case was a mixture of both direct and circumstantial evidence, and it would be an error to examine each piece of circumstantial evidence individually to determine whether it could prove the guilt of the appellant: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.

29. When taken as a whole, we have determined that the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the two offences with which he was charged.

Conclusion

30. For these reasons we upheld the appeal and remitted the matter for retrial.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell, Justice Burns and Acting Justice Robinson.

Associate:

Date: 17 April 2015