The applicant's ERISP was played to the jury, in which he confirmed that he had gone to NH's house around 3:00pm and remained there for about 10 hours, during which they ate, drank and played music.
The applicant said that the children went to bed around 9:00 to 10:00pm, and DH returned home at 11:00pm. He did not recall when NH went to bed, and stated that he had fallen asleep on a lounge out in the back area. Later the applicant said he believed he may have been sleeping on a couch inside at the front of the house, but could not be sure as he had "crashed out."
The applicant said that he left NH's house at about 1:00 or 2:00am and driven himself home. He said that when he woke up no one was around and he got up and left.
In response to being asked if he left because he'd had enough of the evening or because he was asked to leave, the applicant replied "no comment."
Later in the interview, the applicant recanted and said that he was woken up by NH yelling at him. NH told him to get out and said something about ED.
The applicant said that he did not recall ED wearing onesie pyjamas, and that he would have played and had physical contact with all of the children during the night.
The applicant said he arrived home at about 2:00 to 2:30am and went directly to bed. He did not speak to his partner Ms Best until a few days before his interview.
The applicant denied that he was in ED's room, that he kissed her, and said that the conduct did not occur.
When asked whether he had ever been inside ED's bedroom, he replied "yeah like I know where it is." He denied the possibility of being disoriented and going into ED's bedroom by mistake.
When asked whether he could have "crashed" in her bed, he said he didn't think so and then denied the possibility entirely.
[2]
DNA evidence
The onesie pyjamas and seven sub-samples taken from it by police were provided to Ms Wederbang, a forensic scientist working at the Forensic and Analytical Science Service (FASS). FASS took a further ten samples via tape-lift.
Ms Wederbang tested 14 of the 17 samples. In three samples Ms Wederbang was able to detect a major contributor which was not the applicant. In the remaining samples she could not detect a major contributor.
Ms Clarke, another forensic scientist working at FASS, gave evidence that she prepared a report interpreting results obtained from testing conducted by Ms Wederbang and other scientists.
Ms Clarke gave evidence that in addition to conventional DNA tests, some testing was performed using Yfiler which isolates the Y chromosome. She said that this test is used where it is expected to find large amounts of female DNA. The test allows for the Y chromosome, which is only found in males, to be targeted and analysed. As the Y chromosome is inherited entirely, each male in a paternal line has the same Yfiler profile.
Ms Clarke said that she submitted the remaining 3 samples for testing.
With respect to sample (viii), conventional DNA testing matched ED's profile as the major contributor and the minor contributor was not suitable for comparison. The Yfiler test recovered a mixed DNA profile from at least three male individuals. The major contributor had the same profile as the applicant. This profile was expected to occur in approximately one in 750 unrelated males in the general population.
Ms Clarke said that sample (viii) was a tape lift of the outside crotch area of the onesie, below the seam.
Ms Clarke explained the difference between primary and secondary transfer, primary being direct transfer where the individual touches an object or another person, and secondary where DNA is transferred via an intermediary.
In cross-examination, Ms Clarke agreed that DNA testing cannot determine the age of DNA, nor how it came to be there.
[3]
The applicant's case
The applicant did not give evidence or call any witnesses.
In the closing address to the jury, the applicant submitted that there were no acts of sexual impropriety against ED. The applicant relied on the cross-examination of the Crown witnesses, in particular that of ED, NH and DH, to show the evidence was not consistent and there was potential contamination of ED's evidence. The applicant stressed his longstanding relationship with the family and said that in all of the circumstances the jury should be not satisfied beyond reasonable doubt.
With respect to the lies which the applicant told police in his ERISP, it was put to the jury that they did not evince a consciousness of guilt but resulted from his confusion at finding himself in the situation, in circumstances where he was heavily intoxicated and had little memory of what had taken place.
With respect to the DNA evidence, he submitted that it did not advance the Crown case because there was no evidence as to how it came to be there, when it got there, who had put it there, and whether transference had occurred from an object.
[4]
Argument
The applicant contended that the effect of the failure to comply with s 18 of the Evidence Act was the improper admission of Ms Best's evidence, which in turn precluded any argument regarding the admissibility of her statement to police and also resulted in a failure to discharge the jury.
The applicant argued that Ms Best's evidence was advanced for the purported admission the applicant made to her about being in ED's bed. This admission was in conflict with the ERISP in which the applicant said he could not remember and then denied such a possibility. The applicant submitted that this evidence bolstered the Crown's case and effectively denied him a fair trial. The applicant submitted that the jury should have been discharged.
With respect to the strength of the Crown case, the applicant submitted that the conclusion could not be reached that on the admissible evidence the verdicts of guilty were inevitable. While the applicant accepted that ED was a strong Crown witness, it was contended she was a young child and her evidence may have been contaminated by contact with NH.
With regard to the evidence of NH the applicant relied on her intoxication, her distress at what she believed had occurred and potential contamination by discussing the matter with DH. As to the DNA evidence the applicant submitted that it was consistent with inadvertent transference.
The Crown argued that the case against the applicant was very strong, leaving aside the evidence of Ms Best. The Crown pointed to the force of ED's evidence, her contemporaneous complaint, that NH placed the applicant in ED's room, and the reaction NH's confrontation of the applicant elicited. As to the DNA evidence, the Crown pointed to the location of the DNA on the crotch area of the onesie.
The Crown submitted that there had not been a substantial miscarriage of justice.
[5]
Consideration
Section 6(1) of the Criminal Appeal Act is as follows:
Determination of appeals in ordinary cases
The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In Hofer v R, [10] Macfarlan JA provided a helpful summary of the principles of relevance to the application of the proviso:
"[51] Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438.
[52] Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.
[53] First, in applying the proviso, the "fundamental question" for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).
[54] Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this "will in many instances support the conclusion that there has been no substantial miscarriage of justice" (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused's guilt has been proved beyond reasonable doubt on admissible evidence there "will always be a substantial miscarriage of justice" (Kalbasi at [13]).
[55] Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury's guilty verdict (Weiss at [43]).
[56] Fourthly, there are natural limitations on the appellate court's ability to determine whether the accused's guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury's guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).
[57] Fifthly the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at [29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).
[58] Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown's case is obviously false (Castle at [66])." (Citations in original.)
In this case, the fundamental question in considering the proviso is whether there has been a substantial miscarriage of justice by the wrongful admission of Ms Best's evidence. In Filippou v The Queen, [11] French CJ, Bell, Keane and Nettle JJ said at [15] that by "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the applicant has been denied a chance of acquittal which was fairly open to him or that there was some other departure from a trial according to law that warrants that description.
One matter that bears upon this question is the failure by the applicant's counsel to raise s 18 with the judge either before or during Ms Best's evidence before the jury.
As the applicant's interests in the outcome of his trial were plainly affected by Ms Best's evidence and any determination that the judge might make under s 18, the applicant's counsel had the right to raise with the judge that Ms Best might be entitled to make an objection to giving evidence on behalf of the Crown, to cross-examine the witness on a voir dire and to make submissions on the factors to be advanced under the section. The absence of any complaint or submissions at the time of Ms Best's evidence suggests that there was no denial of procedural fairness to the applicant, notwithstanding the denial of procedural fairness to the witness.
A decision not to raise s 18 with the judge may have been taken by the applicant's counsel as he was aware of the possibility that if the judge concluded that Ms Best was not compellable, an application by the Crown to tender Ms Best's statement pursuant to s 65 of the Evidence Act might be granted. The tender of Ms Best's statement may have been more damaging to the applicant's case than her oral evidence during which she drew back from significant parts of that statement.
It is not necessary to consider whether the statement would have been admitted under that section should the judge have decided that Ms Best was not a compellable witness. It is clear from his judgment that his Honour considered that the statement was admissible under s 65 if those circumstances had arisen. [12]
The applicant's counsel's failure to bring s 18 to the judge's attention is capable of explanation on the basis that it could have resulted in a forensic advantage to the applicant. There has been no suggestion that counsel was unaware of the relationship between Ms Best and the applicant, nor that counsel was incompetent.
A forensic choice taken at trial may lead to a conclusion that a miscarriage of justice has not been demonstrated. As Gaudron J explained in TKWJ v The Queen:
"[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open
[27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis." [13] (Citations omitted.)
However, the forensic choices of counsel are not determinative. [14] Gaudron J went on to say at [28]:
"As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice." (Citations omitted.)
Another matter that bears upon the fundamental question of substantial miscarriage is that should the judge have conducted a voir dire prior to or during Ms Best's testimony before the jury and had made her aware of the effect of s 18, it is doubtful whether a different result would have been reached. The judge provided careful reasons for his decision to require Ms Best to give evidence and such a decision would have been plainly open to him.
In Weiss v The Queen, [15] the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said that there may be cases where it would be proper to allow the appeal, even if the appellate court was persuaded to the requisite degree of the applicant's guilt. The Court identified cases where there has been a significant denial of procedural fairness at trial as providing examples of cases of that kind. I am satisfied that in the present case the applicant was not denied procedural fairness.
In Kalbasi v Western Australia, [16] in considering the appellant's challenge which was directed to the application of Weiss, the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) said at [15]:
"Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter." (Citations omitted.)
I do not consider that the judge's error in admitting the evidence precludes this Court from being able to assess whether the evidence, properly admitted at trial, proved the applicant's guilt beyond reasonable doubt.
Notwithstanding ED's young years at the time of the commission of the offences and at trial, her evidence was compelling. Her evidence in the interview and at trial that the area marked on the diagram of a child's body (Exhibit A) was where the applicant had touched and kissed her was unshaken in cross-examination. The circled area was the child's vagina.
ED's evidence was strongly supported by NH, who was a credible witness even though she had consumed a significant amount of alcohol with the applicant before retiring to bed. ED made an immediate complaint to her mother who saw ED come out of the bedroom and was naked. NH went to her child's bedroom and saw the applicant roll off the edge of ED's bed onto the floor. Notwithstanding the close friendship between NH and the applicant, NH did not delay in attempting to report what had happened to police.
Although there are some inconsistencies in the evidence of ED and NH, they do not diminish the strength of ED's evidence. There is no evidence that supports the applicant's submission of contamination of the child's evidence.
The Yfiler test (sample viii) recovered a mixed DNA profile from at least three male individuals. The major contributor had the same profile as the applicant. The profile was expected to occur in 750 unrelated males in the general population. Sample viii was a tape lift of the outside crotch area of ED's onesie, below the seam. Although Ms Clarke agreed that DNA testing could not determine the age of DNA, nor how it came to be there, the Yfiler test provides support for ED's evidence that the applicant removed her onesie.
Paying no regard to Ms Best's evidence, I found that the applicant's answers in his ERISP lacked credibility.
This is not a case where the admission of Ms Best's evidence impacted upon the credibility of ED's evidence. [17] I do not consider that it is reasonably possible that ED's account of what occurred is not correct.
The strength of the Crown case leads me to be satisfied beyond reasonable doubt that the applicant committed the two counts of aggravated indecent assault.
In my view, the possibility has been excluded beyond reasonable doubt that the applicant has been denied a chance of acquittal which was fairly open to him. I consider there has been no substantial miscarriage of justice. Accordingly the proviso applies.
[6]
The appeal against sentence
The sole ground of appeal against sentence is that the applicant's aggregate sentence of 7 years imprisonment commencing on 16 April 2018 with a non-parole period of 4 years was manifestly excessive.
It is convenient to refer to the judge's sentencing remarks before considering the arguments advanced by the parties.
[7]
The remarks on sentence
The judge found that the applicant came into ED's bedroom who woke up and saw the applicant in front of the bed in which she had been sleeping. The applicant rolled ED to one side, kept her rolling over and took her pyjamas off. He then took her underpants off and put them on the floor.
The applicant then started to touch ED. At some time during the touching, he said to her "OK ED, this won't hurt a bit."
The judge said that the applicant touched ED all over including on her vagina. ED described the touching as dragging his hand along her vagina. His Honour said that as soon as the applicant took ED's pyjamas off, he started kissing her all over her body, making her uncomfortable. He also kissed her on her vagina. ED described the kissing on the vagina as not really hard but just soft. ED further described this kissing as gross and disgusting.
The judge said that during the incident, ED started to cry because she was nervous and uncomfortable. The incident ended when ED said she tricked the applicant by telling him that she had to go to the toilet. ED left the room and told her mother what had happened.
The judge said that offences involving the indecent touching of children are objectively serious offences and sentences should reflect the need of general deterrence and denunciation.
In assessing the objective seriousness of the offences, the judge took into account ED's age of 6 years which his Honour noted was considerably below the age of 16 years, the age encompassed by the offence. His Honour also took into account the age difference between the applicant and ED. His Honour noted that the applicant who was 39 years old at the time of the offending was 33 years older than ED. His Honour observed that the age difference of some 33 years was "considerable."
The judge observed that the indecent assault for the first count related to touching on ED's vagina whereas the second related to the kissing of ED all over her body, including the genital area. His Honour also took into account that during the offences, ED was naked whilst the applicant remained fully clothed. His Honour found that the duration of the offending conduct seemed to have been in the order of a few minutes. Whilst there were no overt threats or coercion, ED had been rolled over onto her side and onto her back so that the applicant could remove her onesie pyjamas and then her underpants.
The indecent assaults ceased, his Honour said, not because the applicant desisted but because ED had had the presence of mind to "lie" about having to go to the toilet.
The judge assessed the objective seriousness of each offence to be "comfortably in the mid-range."
The judge found as an aggravating factor the commission of the offences in the house of the victim.
As to the applicant's subjective case, the judge noted that the applicant was almost 40 years old at the time of his offending and was 41 years old at sentence. The applicant had a very limited prior criminal history which his Honour took into account.
After referring to the applicant's references, his Honour said that "each of those referees expressed their shock, bordering on disbelief, on being informed of these offences."
When referring to the sentencing assessment report, his Honour recounted that the applicant maintained his denial of the offences but expressed his willingness to undertake intervention for alcohol abuse.
The judge considered in some detail the report of Jason Borkowski, a forensic psychologist, who reported the results of an actuarial risk assessment that the applicant was in the Below Average Risk category relative to other adult male sex offenders. His Honour noted that Mr Borkowski reported that there were various custody and community based treatment options designed to address that risk.
The judge was satisfied that the offence was out of character. His Honour found that the applicant had good prospects of rehabilitation and was unlikely to re-offend.
The judge referred to the victim impact statement and to ED's loss of innocence and in a profound change in her view of trusting adults. His Honour gave careful consideration to the questions of accumulation and totality and to various cases that had been put to him by the applicant's counsel.
The judge found special circumstances being the lengthy period of time on parole that would be required to assist the applicant with his significant alcohol issues.
In imposing an aggregate sentence, his Honour said that the indicative sentence for count 1 was 7 years imprisonment with an indicative non-parole period of 4 years. For count 2, the indicative sentence was 7 years imprisonment with an indicative non-parole period of 4 years.
[8]
Argument
No issue is taken by the applicant with the commencement of the sentence, the structure or the proportionality of the non-parole period to the head sentence which is approximately 57%. The applicant contends that the overall head sentence of 7 years places the offences at a far higher level of criminality than the circumstances warranted and that a lower sentence was required.
The applicant does not dispute the judge's findings of fact, the assessment of objective criminality of the offending or the assessment of the applicant's subjective case.
The applicant referred to the maximum penalty of 10 years imprisonment and standard non-parole of 8 years imprisonment for an offence contrary to s 61M(2) of the Crimes Act. The applicant submitted that he was a person of mature years who had nothing that reflected anything like this type of behaviour in his criminal history. The applicant acknowledged that he had an alcohol problem but said that was being addressed. The applicant submitted that although there were two offences, they occurred in very quick succession.
The applicant argued that the head sentence of 7 years put his sentence at the high range of offences against s 61M(2) and was manifestly excessive.
The Crown also referred to the maximum penalty and the standard non-parole period for an offence contrary to s 61M(2) of the Crimes Act. The Crown submitted that the judge was sentencing the applicant for two offences, albeit occurring within moments of one another but consisting of entirely different and distinct acts (touching and then kissing of ED's body and genitals). The Crown observed that the judge's finding that the offences fell "comfortably in the mid-range" of objective seriousness had not been contested by the applicant.
The Crown submitted that the judge did not accumulate the indicative sentences even though the applicant's counsel did not disagree with the Crown's submission that a partial accumulation was appropriate. The Crown argued that the applicant had failed to establish that the sentence was unreasonable or plainly unjust.
[9]
Consideration
The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v The Queen [18] at [25]. Intervention by this Court is neither warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v The Queen [19] at [57], nor simply because the sentence is markedly different from other sentences that have been imposed in other cases: Hili v The Queen; Jones v The Queen [20] at [59]. Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence. Consistency in sentencing practice is achieved by consistency in the application of principle and not by numerical equivalence: Hili at [48]; R v Nakash [21] at [9].
When considering whether the applicant has established that his aggregate sentence was manifestly excessive, the maximum penalty of 10 years imprisonment and standard non-parole period of 8 years are the legislative guideposts to be borne in mind.
The applicant does not challenge the judge's assessment of the objective seriousness of the offences as being "comfortably in the mid-range." This is hardly surprising as his offending involved the removal of the young child's clothing and the direct contact with her genital area whilst she was in her bed in the family home. In my view, the judge's assessment of objective seriousness was generous to the applicant.
The applicant took advantage of ED who had been asleep. After removing her onesie and underpants, he indecently assaulted ED, who was then naked. He touched her vagina with his hand and kissed her over the body including the vagina. Although the indecent assaults were confined to a short period, they ceased because the child had the presence of mind to say that she had to go to the toilet.
These are serious offences of aggravated indecent assault. As the judge said, sentences of offences involving the indecent touching of children should reflect the need of general deterrence and denunciation.
No challenge is made to the judge's consideration of the applicant's personal circumstances. His Honour's findings included the offence was out of character, the applicant had good prospects of rehabilitation and was unlikely to re-offend. Furthermore, no challenge is made to his Honour's assessment of the ratio between the head sentence and non-parole period after the finding of special circumstances.
The applicant's contention of manifest excess is based on the contention that the head sentence of 7 years placed his offences at the high range of offences against s 61M(2).
The applicant did not in this Court seek to compare his sentence with sentences passed in other cases. However, his Honour was provided with other cases during the sentencing proceedings which he carefully considered in his sentencing remarks. No challenge is made to his Honour's differentiation of those cases.
The judge was not minded to provide for some partial accumulation in the aggregate sentence for the separate offending in counts 1 and 2 which was favourable to the applicant.
Having regard to all relevant matters including the objective seriousness of the offences and the applicant's personal circumstances, I am not persuaded that an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years is manifestly excessive.
[10]
ORDERS
I propose the following orders:
1. Leave to appeal against conviction granted.
2. Appeal against conviction dismissed.
3. Leave to appeal against sentence granted.
4. Appeal against sentence dismissed.
CAMPBELL J: I have had the considerable advantage of reading in draft the judgment now delivered by Price J. I agree with the orders his Honour proposes and with the reasons given. What follows is not intended to be in anyway inconsistent with anything Price J has written.
I agree that Ms Best's evidence was wrongly admitted as explained by Price J. And I also agree that this error at trial was not of a kind that fundamentally undermined the presuppositions of what constitutes a fair criminal trial according to modern Australian law. Accordingly the disposition of the conviction appeal depends on the application of the proviso.
I consider evidence of the complainant, ED, her mother, NH, and the results of DNA testing, particularly the outcome with respect to sample (VIII), such as it was, constitute a coherent body of evidence proving the applicant's guilt of each offence beyond reasonable doubt.
In arriving at this conclusion I have considered that the wrongly admitted evidence of Ms Best, as the trial judge recognised and as Price J has pointed out, may have been understood by the jury as an evidential admission, either express or implied, of a very significant circumstance i.e. that the applicant "crashed" in ED's bed on the night when the alleged offending was said to have occurred. An admission of this type, if accepted, is capable of being very influential in the thinking of a trier of fact required to assess conflicting accounts. It is not insignificant, therefore, that such an admission was inconsistent with the denials of the existence of that circumstance by the applicant in his ERISP which was played to the jury.
I accept that the evidence of Ms Best was relevant to the jury's assessment of whether the applicant's exculpatory account to police might be true. His exculpatory account also included an innocent explanation for his DNA having being present on ED's "onesie" pyjamas, namely that he would have played with the children before they were put to bed. The absence of the evidence of Ms Best may have made it somewhat less likely that the jury would conclude that the applicant's denials in his account to police could not possibly be true, permitting them to put his account to one side when considering whether the prosecution had proved his guilt beyond reasonable doubt by evidence the jury actually accepted: De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100 at [9].
However, as Price J has pointed out, the admission also appeared in paragraphs [9] and [10] of Ms Best's police statement to which she was taken in evidence. I agree that her statement was properly admissible under s 65 Evidence Act: Fletcher v R (2015) 45 VR 634; [2015] VSCA 146 at [58] (Dixon AJA, Weinberg JA agreeing); R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306; (2015) 253 A Crim R 574 at [174]-[185] (Johnson J).
After giving these matters due consideration in the context of the whole of the evidence, and acknowledging that the evidence of ED and NH was not identical in all respects, I find the body of evidence to which I have referred, when taken together and with the evidence of the admission by the applicant contained in Ms Best's police statement, both coherent and compelling. I am persuaded to the necessary degree that the wrongful admission of the evidence of Ms Best did not deprive the applicant of a chance of acquittal fairly open to him. To put it another way, I am satisfied that the evidence properly admitted at the trial proved the applicant's guilt of the offences on which the jury returned its verdict beyond reasonable doubt: Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at 206 [38].
For the reasons given by Price J the applicant has not persuaded me that the sentence passed was plainly unjust and therefore manifestly excessive. In the case of offending contravening the now-repealed s 61M(2) Crimes Act 1900 (NSW), it is significant that the standard non-parole period was one of 8 years, or 80 percent of the maximum penalty of 10 years imprisonment. This relationship between the two may bring into sharp focus the significance of these legislative guideposts even as two only of the full range of factors relevant to determining the appropriate sentence for this offence and this offender: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; especially when one bears in mind the unchallenged finding of objective seriousness made by the learned judge. This and the considerations fully explained by Price J lead me to conclude that the sentence passed was not plainly unjust.
[11]
Endnotes
[2012] NSWDC 195; 15 DCLR(NSW) 317.
[2015] NSWSC 1306; 253 A Crim R.
[2017] NSWCCA 93 ("Tran (No 1)").
[2016] NSWCCA 259 ("Mulvihill").
[2019] VSCA 114 ("McKinnin").
See [10] above.
[2018] NSWCCA 145 ("Tran (No 2)").
New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 1995 at 3.
See [41] above.
[2019] NSWCCA 244.
(2015) 256 CLR 47; [2015] HCA 29; 89 ALJR 776; 323 ALR 33; 253 A Crim R 126.
See [62] above.
(2002) 212 CLR 124; [2002] HCA 46; 76 ALJR 1579; 193 ALR 7; 133 A Crim R 574.
See also James v The Queen (2014) 253 CLR 475; [2014] HCA 6; 88 ALJR 427; 306 ALR 1; 236 A Crim R 402 at [38].
(2005) 224 CLR 300; [2005] HCA 81; 80 ALJR 444; 223 ALR 662; 158 A Crim R 133 ("Weiss").
(2018) 264 CLR 62; [2018] HCA 7; 92 ALJR 305; 352 ALR 1; 271 A Crim R 245.
OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10; 93 ALJR 438; 364 ALR 573 at [29].
[2017] NSWCCA 196.
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Decision last updated: 06 May 2020
Section 18 of the Evidence Act relevantly allows a person who, when required to give evidence, is the de facto partner of an accused, to object to giving evidence as a witness for the prosecution. Section 18(4) of the Evidence Act provides that "[i]f it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person."
At the beginning of her evidence, [6] Ms Best said that she was the applicant's partner in October 2017 (when the offences were allegedly committed). She also said that she was still the applicant's partner and that he had partly moved in with her in September 2017.
From the outset of Ms Best's evidence, it should have appeared to the judge, the crown prosecutor and the applicant's counsel that Ms Best was giving evidence of a de facto relationship with the applicant not only at the time of the alleged offences but at the time she was required to give evidence in the Crown case.
When Ms Best had given evidence of her relationship with the applicant, the jury should have been asked by the judge to retire so that the judge could hear evidence in their absence to determine if Ms Best was a person who may have a right under the section to make an objection. If, after taking that evidence, it appeared to the judge that Ms Best may have had such a right, the judge was obliged to satisfy himself that Ms Best was "aware of the effect of the section."
It was procedurally unfair to Ms Best that she was not made aware of her right to object to giving evidence before she continued her evidence before the jury. It is apparent that she would have exercised that right from the evidence she gave on the voir dire conducted the day after she had completed her testimony.
In argument, the Crown placed reliance on Mulvihill for the submission that notwithstanding s 18 being overlooked, Ms Best's evidence was admissible. In Mulvihill, this Court (Ward JA, Beech-Jones and Fagan JJ) relevantly said:
"[134] A consideration of this submission reveals that leave should not be allowed to raise this point on appeal when it was not raised at trial. In the absence of this ground being raised at the trial, there is no means of ascertaining whether Ms Mulvihill was not aware of her right to object to giving evidence. To the extent that there is material available, it suggests that she was very willing to give evidence against her estranged husband. She may have been advised of her right to object but decided not to exercise it. Most significantly, in circumstances where neither party raised s 18 and where it would have appeared to the trial judge that Ms Mulvihill was actively assisting the prosecution, it cannot be inferred from the absence of any express reference by her Honour to s 18(4) that her Honour was not satisfied in terms of that sub-section. Her Honour might have believed that the Crown advised all witnesses in Ms Mulvihill's position of that right as a matter of course but Ms Mulvihill did not wish to raise it because she wanted to assist the prosecution of her estranged husband. If none of the Crown, the witness or the accused raised any issue about Ms Mulvihill giving evidence or made any reference to s 18, then it does not necessarily follow that her Honour would have felt any compulsion to record her formation of the opinion referred to in s 18(4) in the transcript.
[135] Further, one premise of the ground is that a failure by the trial judge to form the opinion referred to in s 18(4) renders evidence given by a person referred to in that section inadmissible. That premise is doubtful. In Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [48] Santow JA (with whom Hidden and Adams JJ agreed) observed that "the section is not invoked by the Prosecution but can only be invoked by the spouse". Arguably, the same applies to the accused in which case a failure to comply with the provision could not properly be said to affect his or her rights.
[136] Counsel for the applicant placed reliance on Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 for support of the proposition that evidence adduced as a consequence of non-compliance with s 18 was not admissible. In Demirok the accused's wife was called by the prosecution. Section 400(1) of the Crimes Act 1958 (Vic) then provided that a spouse of an accused was a competent but not a compellable witness at their trial. Section 400(2) obliged the trial judge to inform the accused's wife that she was not compellable in the absence of the jury. In the absence of the jury she was advised of her right to object to giving evidence. She stated that she did not wish to give evidence. She was then recalled to give evidence before the jury and restated her objection. She was then excused. It was held that advising her of her right to object and excusing her from giving evidence in the presence of the jury was inconsistent with s 400(2) and therefore erroneous (at 31 to 32 per Gibbs J, at 33 to 34 per Stephen J, at 36 per Murphy J, at 39 per Aickin J; contra Barwick CJ). In this respect, s 18(5) of the Evidence Act is similar to sub-section 400(2) of the Crimes Act 1958 (Vic) as considered in Demirok. However, that is of no relevance to this matter as in this case s 18 was not referred to at all in the presence of the jury. Of more assistance to the applicant is the statement by Gibbs J in Demirok (at 31) that "the course taken by the learned trial judge was erroneous, and that Mrs Demirok should not have been called to the witness box in the presence of the jury" and thus "what little evidence she then gave was inadmissible".
[137] Under the statutory provisions considered in Demirok, if an objection was taken by a spouse to giving evidence then the spouse had to be excused. Hence, Gibbs J concluded that, had the section been complied with, the accused's spouse's evidence would not have been adduced at his trial. However, that is not the case under s 18 of the Evidence Act. With s 18, even if the applicant can raise a failure to comply with that provision as a basis upon which the evidence should have been excluded, a conclusion that Ms Mulvihill's evidence would not have been adduced had the section been complied with can now only be reached if it could be concluded that Ms Mulvihill would have objected if she had been appraised of her right to do so and that the outcome of the weighing up process contemplated by s 18(6) would have resulted in her being excused from giving evidence. In the absence of the point being made at the trial and those matters addressed then there is no basis for either conclusion. If anything, the material suggests to the contrary." (Emphasis added.)
An important point of distinction in the present case to Mulvihill is that Ms Mulvihill appeared to be very willing to give evidence for the prosecution whereas Ms Best's evidence on the voir dire was that she would object to giving evidence. Another matter is that the judge in the present case was on reflection overnight uncomfortable with what had occurred and raised the issue on the following morning. Furthermore, in my respectful opinion, the obiter remarks at [135] to which I have added emphasis appear to me to be questionable.
In Tran v R, [7] Payne JA (with whom Schmidt and Button JJ agreed) said:
"[32] It may be accepted, as the Crown submitted, that the focus of the harm to which s 18 of the Evidence Act is directed is harm to the proposed witness for the prosecution and harm to the witness's relationship with an accused, rather than the harm to the accused's legal interests in defending the case if the witness is not excused from giving evidence. It may also be accepted that s 18 of the Evidence Act is only enlivened if the prosecution seeks to call the witness to give evidence and the witness objects under ss 18(2) and (3) of the Evidence Act. It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2) 2018 (NSW) which relevantly commenced operation on 21 June 2018 apply.
[33] However, as the Crown correctly and fairly accepted, an accused's legal interests will clearly be affected by a judge's determination made under s 18 of the Evidence Act, whatever the outcome. That is enough to enliven the obligation of procedural fairness: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ. The trial judge erred in stating that the proceedings determined "only" the rights of the witness and the Crown.
[34] So much is demonstrated by the events which occurred when counsel for the applicant observed that if his client had no standing to appear for the purposes of the s 18 objection, he and his client would leave the courtroom. The trial judge correctly held that determination of the s 18 objection was "inseparable from the overall processes in which she is the accused". It bears emphasising that simply permitting (or requiring) an accused (or their legal representative) to be present when an application is determined in his or her criminal trial is not to afford the accused procedural fairness.
[35] The applicant here had a particular interest in the outcome of the s 18 objection as it affected the evidence available to be presented at her trial. The reference to her "standing" bespoke error. It is fundamental that under our justice system a criminal trial commences when the indictment is presented. Orders made by the court after the presentation of the indictment but before the empanelment of the jury are "part of the trial of the accused person": Criminal Procedure Act 1986 (NSW) s 130(3). The order made here in relation to the s 18 Evidence Act objection was part of the applicant's trial. Even in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2) 2018 (NSW) apply the accused has standing, albeit the accused's rights are circumscribed in many respects in such cases by the statute.
[36] The Crown and the accused may properly be in a position to address many of the considerations referred to in s 18(7). There may be circumstances in which the accused is the only party who can properly address some of the factors referred to in that subsection. The refusal by the trial judge to allow the applicant's counsel to make submissions resulted in a denial of procedural fairness in the circumstances of this case." (Emboldened emphasis added.)
It is true that the "spouse, de facto partner or child of a defendant" who is required to give evidence for the prosecution is the only person who may object to giving evidence as a witness for the prosecution under s 18. However, the rights of an accused person are plainly affected by the decisions made under the section by a trial judge or as is more relevant to the present appeal, by the requirements of the section being overlooked.
In my view, the Crown's submissions founded on Mulvihill should not be accepted.
The question remains whether, notwithstanding the error that has been identified, it was subsequently corrected by the judge taking evidence from Ms Best on the voir dire the day after she had completed her evidence before the jury.
Section 18(3) provides that the objection is "to be made before the person gives the evidence or as soon as practicable after the person became aware of the right so as to object, whichever is the later."
In my view, where the awareness of the right to object arises after the completion of the evidence that the person was required to give as a prosecution witness, it is doubtful that s 18 can be complied with.
Where an objection is raised, the matters the court must take into consideration under subsection (7) in carrying out the balancing test include having regard to "any evidence the person might give and the weight that is likely to be attached to it," and "whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant." It is apparent from the language of the statute that it is expected such objections will be considered before a witness completes his or her evidence.
This view finds some support in the second reading speech for the Evidence Bill 1994 (NSW). The then Attorney General said with respect to s 18 that:
"The approach which has been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship to the witness." [8]
In a case such as this, where any potential hardship and harm caused to Ms Best and the family unit was already occasioned, it is difficult to see how the legislative intent could be fulfilled retrospectively.
Another consideration militating against the correction of an error such as the present one after the proverbial "horse has bolted" is the subconscious desire of a trial judge to continue with a trial.
As this Court did not have the benefit of argument on this issue, it is not appropriate to finally determine this question of retrospective correction. In any event, the parties' submissions concentrated upon whether in conducting the voir dire the judge satisfied himself that Ms Best was aware of the effect of s 18.
In Tran (No 1), Macfarlan JA focussed on the obligation of the court under s 18(4) to "satisfy itself that the person is aware of the effect" of the section. Macfarlan JA said:
"[27] In my view, to be "aware of the effect" of the section in accordance with s 18(4) the prospective witness needs to be aware not only of his or her right to object but also:
That the court will decide whether or not the objection should be overruled and the person required to give evidence;
That that decision will be based upon the court's findings concerning the matters referred to in subsection (6), of which the judge should apprise the witness.
That in making its decision the court will take into account at least the five matters referred to in subsection (7), of which the judge should again apprise the witness.
[28] Unless the prospective witness is aware of these matters, he or she will not know to what issues his or her evidence and submissions should be directed in an attempt to persuade the court of the force of the objection to giving evidence. Where the prospective witness is represented by a solicitor or counsel it will usually be sufficient for the judge to ask the representative to confirm that the person is aware of the relevant matters. Where, as here, the person is unrepresented, an explanation of the matters to which I have referred will need to be given.
[29] Usually it would not be sufficient for the judge to have counsel acting for the accused confirm that the prospective witness is aware of the relevant matters if the counsel is not also acting for that person. However not even that happened in the present case as the judge simply asked Mr Tran (not counsel) whether he had spoken to either of the lawyers (the representatives of the Crown and the accused). The judge did not ask Mr Tran what explanation, if any, he had been given about the effect of the section (see [8] above)."
In a separate judgment, Schmidt J opined:
"[40] Given that the witness must be made "aware of the effect of the section", it follows that he or she must be informed of the provision made in s 18(6), that he or she will not be required to give the evidence, if it is found that:
"(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given."
[41] Further, the witness must also be informed of the mandatory considerations specified by s 18(7), which the trial judge must consider before concluding that the nature and extent of the likely harm which outweighs the evidence might cause the desirability of having the evidence given. That is necessary if the witness is to be given a fair opportunity to address those and any other considerations which are relevant to the objection which he or she wishes to advance.
[42] It follows that procedurally, just like in the case of s 128, it will thus be desirable for such a witness to be given an opportunity to obtain advice about the right of objection which s 18 grants. If it is not possible for the witness to obtain such advice, then it will be for the trial judge to give the witness an explanation of the effect of the section, before consideration is given to whether the witness should be required to give evidence, notwithstanding the objection which is pressed."
Prior to commencing the voir dire, the judge was told by the crown prosecutor that Ms Best "had the advice in relation to the section." Although there had been an earlier reference by the crown prosecutor to it being prudent that Ms Best obtained independent legal advice and they were trying to arrange that now, the crown prosecutor did not subsequently make it clear to the judge that Ms Best had received independent legal advice. Unfortunately the judge made no enquiries as to who provided the advice or the extent of that advice to Ms Best. On the paucity of the information before his Honour, the judge was obliged to enquire of Ms Best from whom she had obtained legal advice and to confirm that she was aware of the relevant matters under s 18.
It is evident from the exchange between his Honour and Ms Best when she returned to the witness box [9] that his Honour confined himself to being satisfied that Ms Best was aware that she may have a right to object.
His Honour could neither have been satisfied that Ms Best had obtained independent legal advice nor that she had been apprised of the matters referred to in subsections (6) or (7) of s 18. His Honour failed to satisfy himself that Ms Best was aware of the effect of the section.
This case may be distinguished from McKinnin to which the Crown drew this Court's attention. In McKinnin, the judge had been informed that the prosecution had arranged for the witness to be provided with independent legal advice and that the advice was imminent. The Victorian Court of Appeal (Niall, T Forrest and Weinberg JJA) were of the opinion in the circumstances of that case that the judge was entitled to proceed on the basis that the witness had received independent legal advice. Furthermore, in McKinnin no argument was raised that the judge under s 18(4) had not satisfied himself that the witness was aware of the effect of the section.
Ms Best's evidence was wrongly admitted before the jury and the subsequent steps taken by the judge did not make that evidence admissible.