L A L v The Queen [2011] VSCA 111

Court of Appeal (Vic)|2011-04-20|Before: Mr J, Buchanan JA

CRIMINAL LAW - Sexual penetration of a child under 16 - Apprehended bias - Trial judge related to victim of a like crime - Aiding and abetting - Mere presence at the scene of an offence - Judge failed to tell jury that the accused must adopt or contribute to the crime - Belief of accused as to the age of complainant - Test not completely objective - Account of offence given by complainant to a medical practitioner admitted pursuant to s 41D of the Evidence Act 1958 (Vic) notwithstanding it contained an admitted lie - Lies admitted to prove consciousness of guilt - Allegations of a number of crimes - Direction to a jury sufficient - Prior inconsistent statement - Witness could not recall making the statement - Statement not admissible - Admission of VATE tapes pursuant to s 37B of the Evidence Act 1958 (Vic) - No unfairness to accused - Evidence admissible despite certain answers being untruthful - Health and police records - Division 2A of Part II of the (Vic) - Health and police records - Subpoena - Documents not required to be produced - Probative value - Distress of the complainant - Counsel refused leave to further address jury on distress - No injustice.

1 At the conclusion of a trial in early 2009 in the County Court, the jury found the applicant, LAL, guilty on two counts of sexual penetration of a child under the age of 16 years. The applicant was acquitted on six counts of rape, one count of attempted rape, four counts of sexual penetration of a child under the age of 16 years, one count of attempted sexual penetration of a child under the age of 16 years and one count of an indecent act with or in the presence of a child under the age of 16 years.

2 A plea was conducted and the applicant was sentenced to be imprisoned for a term of three years on one of the counts of sexual penetration of a child under the age of 16 years and for a term of 18 months on the other count. The sentencing judge ordered that six months of the lesser sentence be cumulated on the longer sentence, creating a total effective sentence of three years and six months' imprisonment. A minimum term of two years and six months' imprisonment was fixed before the applicant was to be eligible for parole.

3 The applicant seeks leave to appeal against his conviction and sentence.

4 The victim of the offences was a 15 year old girl. She was the principal Crown witness.

5 The complainant said that on 1 April 2008, she met friends at the Epping Plaza shopping centre. The girls asked the complainant's mother by means of a text message to come and pick them up. The complainant's mother said that she had no petrol. The complainant saw a friend, AAL, at the shopping centre and requested a lift home. AAL asked the applicant, his older brother, if he would give the girls a lift home. The applicant agreed.

6 Seven people squashed into the applicant's Holden sedan. They were the applicant, the complainant and her 14 year old cousin, AAL, two youths later alleged to be co-offenders and an unknown male. The complainant said that the males mostly spoke to each other in their native tongue, which was Arabic.

7 The complainant said that she gave directions to her house, but was ignored. The car was driven to a reserve in Lalor. The other car also stopped at the reserve.

8 The complainant and her cousin were frightened. They said that they had to go to the toilet. They got out of the car and ran across the park and hid behind a tree. They then realised that they had left their handbags in the car and walked back to it.

9 The complainant and AAL walked to the other side of the oval. The complainant said that she and AAL were kissing, but she refused to go any further with him.

10 At one point the complainant said that the unknown male, called Saleh, came over to her and she saw him put on a condom. She said:

He pulled it on his dick and that's when he started having sex with me ... he kept saying ... Where's the fun? What's wrong? ... I got really scared and then I just kept crying ... and I didn't talk. Like I couldn't even talk really ... and then he put his penis in my vagina ... and he was moving his body.

11 The jury found the applicant guilty of sexual penetration of the complainant on the basis that he was aiding and abetting the principal offender in the commission of the crime. Those circumstances constituted count 5.

12 The offence the subject matter of count 9 was committed when two of the youths approached the complainant, who said that she was sitting on the ground, crying. She said:

I was still crying ... and then ... the other boy had sex with me. He put his penis in my vagina and ... kept having sex with me and I was crying.

The complainant identified this person as the applicant.

13 Eventually the complainant and her cousin were driven to a street near the complainant's home by one of the youths. The complainant's mother gave evidence that the complainant arrived home looking distressed and crying uncontrollably. She was taken to hospital where she was examined and the police were contacted.

14 The applicant gave evidence. He said that he drove to the Epping Plaza shopping centre and one of his friends said there were girls there who 'want to have sex'. The applicant and his friends met the girls and spoke to them. He said there was 'an arrangement that we ... were going to go and have sex.' The applicant said that he and his friends and the girls got into two cars and drove to a Shell service station where the boys purchased condoms. They then drove to a reserve and parked.

15 The applicant said that the complainant went with the 'baldy guy' and 'he had sex with her and we sort of like, we could hear them having sex ... '. The applicant said that he later spoke to the complainant, who complained that 'He's not good or he doesn't know how to have sex. I asked if she want sex with me and she said "yeah, let's go"'. He then said, 'We went down to the bushes and we had sex.' He said that the sex was consensual, the evening ended on happy terms and he had no reason to think there was any difficulty arising from sexual activity that night.

16 The first two grounds of the application for leave to appeal against conviction are as follows:

The learned trial judge erred in failing to disqualify herself for ostensible bias.
The learned trial judge erred in failing to advise counsel for the applicant that she had given evidence for the respondent in committal proceedings for sexual offences where her daughter was a complainant, a similar age and circumstances to the complainant in the applicant's case with a sentence pending in a case of ["SB"].

17 SB was sentenced after he pleaded guilty to a number of charges of sexual offences. It was common ground between the parties in this Court that the circumstances of the commission of the offences against her Honour's daughter were those described by the prosecutor at the plea heard by the judge.

18 Those offences occurred in April 2007. The complainant was then 14 years' old. She was accosted by SB when she alighted from a train at Richmond station. She had been drinking and felt light headed. SB took her to his house and mixed white crystals, which the complainant took to be amphetamine, with vodka. SB drew the mixture into a syringe which he injected into his arm. At SB's suggestion, the complainant drank a mixture of crystals and vodka. SB pushed the complainant down on to a bed, rubbed her stomach and breasts and put his hand down her jeans.

19 The complainant told SB that she wanted to leave and when she became upset, SB agreed. He took her to a dark area of an apartment complex and asked her to pull down her pants. She did so. SB poured some crystals on to her clitoris with a syringe and then started to lick her clitoris with his tongue and penetrated her vagina.

20 SB then took the complainant to a park near the Yarra River. He pulled down his pants and told the complainant to suck his penis. She refused and started to cry. SB grabbed the back of her head and tried to force her head on to his penis.

21 The complainant asked SB to take her back to the station, but he took her instead to a toilet block, took her inside a cubicle and locked the door. He mixed more of the crystals with water and drew the mixture into the syringe. He told the complainant to open her mouth and he put the mixture into her mouth. The complainant was sitting on a toilet. SB reloaded the syringe with more of the mixture of crystals and water, told the complainant to pull down her pants and then put more of the mixture on to her clitoris and rubbed it in with his finger. He licked the complainant's clitoris and penetrated her vagina with his tongue and with his fingers.

22 Her Honour made a victim impact statement, in which she stated that the effect of the offences upon her family 'has been extremely traumatic'. Her Honour said that she and the complainant's father 'have, to a significant degree, put our lives on hold and sought to respond as immediately as we could, to [her daughter's] severe emotional trauma.'

23 Her Honour gave evidence at the committal hearing. She said that her daughter went out to visit a friend. Her Honour lost contact with her daughter, who was not answering her mobile phone. A friend of the daughter phoned her Honour and said that she had spoken to the complainant by phone but the conversation was interrupted. The judge and her husband took it in turns to drive to the local railway station and along tram lines searching for their daughter. Eventually the judge called in the police. The next morning the parents located their daughter on the steps of St Paul's Cathedral.

24 When the complainant was found by her parents, she was extremely distressed, crying and trembling. In her evidence, the judge told of her own alarm, said that she was at one stage 'a bit frantic' and was 'desperately worried' and that it was a shocking event.

25 Counsel for the applicant at the trial had no knowledge of the trial judge's relationship to an earlier victim of unrelated sexual offences committed by a different offender. Nevertheless, immediately after the complainant gave evidence at a special hearing, counsel made application to the trial judge to recuse herself on the ground of apprehended bias. The basis of the application was said to be excessive solicitude displayed by the trial judge to the complainant.

26 Counsel relied upon the fact that her Honour invited the complainant to nominate the times she wished the Court to sit, apologised if the complainant was kept waiting, went to some lengths to set the complainant at ease, enquiring after her favourite subjects at school, whether she had a pet dog and what she did on her birthday and assuring her that the judge would try to make sure the questions of counsel were not too hard for her. By contrast, so it was said, her Honour made no enquiries as to the comfort and convenience of the accused. When the accused were a few minutes late returning to court after a short adjournment, the judge's reaction was to forbid them to leave the dock during short adjournments.

27 The trial judge refused to accede to the application, saying she was 'somewhat astounded by it'.

28 The application was renewed after the accused gave evidence. Counsel for the applicant submitted that the trial judge would be perceived by an objective bystander to be biased because of her treatment of the applicant and the complainant as witnesses. The solicitude displayed to the complainant was not extended to the applicant. The complainant was aged 16 years, the applicant was aged 21 years. English was his second language, and it did appear that he did not always understand questions put to him. Her Honour did not tell the applicant, as she had told the complainant, that barristers did not mean to be confusing, that he was to be absolutely sure that he understood each question, that he was not expected to remember everything and that if he had any questions, he could ask the trial judge.

29 Again, her Honour refused to recuse herself. She said:

There were times that I did speak to them and asked them if they wanted a question rephrased, or if there is a particular word that they didn't understand. In my view they all knew full well if there were any words they didn't understand to say so, and they did.

30 Counsel for the applicant in this Court adopted the submissions made by counsel at trial.

31 In my view, her Honour was not obliged to disqualify herself by the matters advanced by counsel at the trial. Her Honour quite properly sought to ensure that a young witness was not overawed or frightened by a strange, formal and potentially hostile environment. Critically, the complainant, unlike the applicant, was not represented by counsel.

32 The fact that the judge was the mother of a teenage girl, who had been the victim of serious sexual offences, however, takes the matter to another level. I think the question is whether an objective, fair minded bystander, who knew that the trial judge was the mother of a girl of similar age to the complainant, who had recently been the victim of sexual offences, and observed the treatment of the complainant and the applicant by the trial judge, might entertain a reasonable apprehension that her Honour might not bring an impartial and unprejudiced mind to the role she was required to play at the applicant's trial.

33 The relevant principles, which are well established, were not in dispute. They were stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy[1] in the following terms:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ... a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

...

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

The nature of the test to be met to establish apprehended bias is a reflection of the importance in our system of law of the appearance of judicial impartiality.

34 The fact that the jury, not the judge, was to determine the ultimate question of the applicant's guilt or innocence did not dilute the requirement that her Honour be seen to be impartial. As Cole JA said in R v Balick (No 2):

Here any decision of the guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.[2]

35 Counsel for the applicant relied upon the fact that the trial judge did not disclose her involvement in the earlier case.

36 Prudence dictates that judges should disclose associations if there is a serious possibility that they may be disqualified. If no objection is raised, the potential problem may vanish. On the other hand, if objection is taken, the judge will have the benefit of the party's views as to the possible effect of the association having regard to the circumstances of the case and the arguments to be advanced, which might not be apparent to the judge.

37 The trial judge's failure in the present case to disclose her relationship to the earlier victim did not entail that she ought to have disqualified herself. Nevertheless, the failure was relevant for in my view it may be said to cast light on the ultimate question of reasonable apprehension of bias.[3]

38 The circumstances attending the crimes committed by SB and the offences alleged to have been committed by the applicant were in many respects dissimilar. Nevertheless, they were alike in important areas: the ages of the victims were similar and advantage was taken by the offenders of the victims' vulnerability. I think that the comparable circumstances of the victim in each case and the strength of the relationship of mother and child might well move a fair minded observer to think that her Honour might be partial to a girl in the position of the complainant and hostile to the applicant, who took advantage of the complainant's position.

39 The mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime.[4] In the present case, however, the relationship of the judge to the victim of the first crime, the similar age and circumstances of the victims and the emotional involvement of the judge might have led a fair minded observer to think the similarity in the crimes and victims might have induced in her Honour a sympathy for the alleged victim of the offences with which the applicant was charged which prevented her from bringing an impartial mind to the conduct of the trial. In this respect I think it is significant that the judge underwent the harrowing experiences of searching for her child overnight and then dealing as best she could with her daughter's distress.

40 In my opinion, having regard to the particular circumstances of this case, the first ground of the application for leave to appeal against conviction has been made out.

41 The third ground of the application for leave to appeal against conviction is that the directions as to aiding and abetting were inadequate.

42 Despite being urged by counsel to do so, the trial judge declined to direct the jury that mere presence at the scene of an offence would not constitute aiding and abetting. Counsel for the applicant in this Court submitted that her Honour erred in failing to give that direction. He also submitted that her Honour's observation that 'in most cases a person would need to do something more than simply being present when the offence is committed' was potentially confusing, as it suggested that in some cases, mere presence at the scene of a crime would suffice to render an accused an aider and abettor.

43 The trial judge's directions were held by this Court, in an appeal by one of the applicant's co-offenders, to be deficient. Mere presence is not sufficient to establish liability as an aider and abettor. The accused must do something of a kind that can reasonably be seen as intentionally adopting and contributing to what is taking place in his presence. The trial judge failed to make that requirement clear to the jury.

44 Counsel for the respondent conceded that the direction as to aiding and abetting was deficient and, accordingly, the conviction on count 5 should be set aside. The error did not affect the applicant's conviction on count 9 as a principal.

45 Ground 4 for the application for leave to appeal against conviction is as follows:

The learned trial judge erred in failing to direct in the sexual penetration counts that the applicant was obliged to establish that he perceived that his grounds for believing the complainant was over 16 years were reasonable, not that his belief was based upon facts that could have caused a reasonable person to believe the same thing.

46 Section 45(1) of the Crimes Act 1958 creates the offence of taking part in an act of sexual penetration with a child under the age of 16 years. Sub-section (4) provides:

(4) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the child was aged ten or older and -

(a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; ...

In that part of her charge dealing with this requirement, the trial judge told the jury:

For there to be reasonable grounds for a belief you must be satisfied that the belief was based on facts that would have caused a reasonable man to believe the same thing.

47 Counsel for the applicant submitted that the trial judge erred by postulating an objective test, which required the applicant to prove that he had the same state of mind as a reasonable man. Counsel said that the Act did not require the belief to be reasonable, but only that it be based on grounds believed by the applicant to be reasonable.

48 In my opinion, her Honour's directions were in accordance with the Act. The trial judge did not say that the applicant's belief had to be what a reasonable man would have believed, but rather what the applicant himself believed on grounds which were reasonable.[5] This test is not completely objective.

49 Ground 5 of the application for leave to appeal against conviction is:

The learned trial judge erred in admitting the medical history given by the complainant and other complaint evidence as evidence admissible under s 41D of the Evidence Act to prove the truth of its contents or to bolster credit and her directions relating to the evidence.

50 A medical practitioner gave evidence of an account of the events of 1 April 2008 given to him by the complainant. The evidence was admitted notwithstanding objection by counsel for the applicant.

51 The evidence was admitted pursuant to the provisions of s 41D of the Evidence Act 1958. The section provided that if, in a proceeding relating to a charge for a sexual offence, a child complainant under the age of 17 years, who had made a previous representation, was available to give evidence about the existence of a fact of which the complainant had personal knowledge and that she intended to assert by the representation, the hearsay rule did not apply to evidence of the representation. The provision was subject to the proviso that the court be 'satisfied that the evidence was relevant to a fact in issue and was sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.' The section provided that the evidence was admissible to prove the truth of the fact contained in the representation or to support the credibility of the complainant as a witness.

52 The complainant's account to the doctor included a statement after she had been assaulted, 'the boys drove off and she and her cousin walked home'. The complainant admitted in the course of giving evidence at the special hearing that she lied when she said that she and her cousin walked home. Counsel for the applicant submitted that the evidence lacked any probative value because it merely repeated earlier complaints made to others and contained an admitted lie.

53 In my opinion, the evidence was admissible. The lie was hardly significant and did not deprive the substance of the complainant's account of all probative value. Whether the complainant's account was to be believed was a matter for the jury, who could accept the evidence notwithstanding the attack made upon part of it. The trial judge in her charge to the jury did not deal with the false statement, but in my opinion she was not bound to do so. The matter was one which could be adequately dealt with by counsel for the applicant in his address to the jury.

54 Ground 6 of the application for leave to appeal against conviction is as follows:

A miscarriage of justice occurred by a failure to direct that lies said to evidence consciousness of guilt to the crime could be reasonably explained by other offences by the applicant or his co-accused.

55 Counsel for the applicant submitted that in a trial where there were several accused alleged to have committed a number of crimes, the judge should have directed that other offences committed by the applicant or the co-accused might provide a reasonable explanation for the lies.

56 The trial judge instructed the jury that there might be other reasons for telling lies than a consciousness of guilt, and that those reasons might include protecting another person. She said that it was necessary, in order to use a lie, that the jury be satisfied 'no explanation for the accused's lie or lies is reasonably open on the facts, other than that he believed that he had committed the crime or crimes you are considering or some aspect of it, and he believed that by telling the truth, he would be implicated in it, or in those crimes'.

57 In my opinion, her Honour's direction required the jury to consider whether there was any explanation for a lie or lies apart from a belief that the applicant had committed the crime or crimes the jury was considering. That the accused believed he had committed another crime or crimes would constitute such an explanation.[6]

58 Ground 7 of the application for leave to appeal against conviction is as follows:

The learned trial judge erred by failing to allow the tendering of a prior inconsistent statement not distinctly admitted.

59 Counsel for the applicant cross-examined the complainant's cousin, who was with the complainant at the Lalor reserve on 1 April 2008. Counsel asked the witness whether she had made a particular statement in the course of giving evidence at the committal hearing. The witness replied: 'I don't remember'. Counsel for the applicant thereupon sought to tender the transcript of the committal hearing. Her Honour refused to admit the evidence.

60 In my opinion, the transcript did not become admissible when the witness said she could not recall her testimony. In any event, the earlier evidence had no bearing upon the issue that determined the question of the applicant's liability on the counts in respect of which he was found guilty. Counsel for the applicant conceded that, if there were error, it was not sufficient by itself to warrant the success of the application.

61 Ground 8 of the application for leave to appeal against conviction is as follows:

The learned trial judge erred in admitting the complainant's VATE tapes.

62 Counsel for the applicant in this Court repeated submissions made to the trial judge to the effect that the interviews of the complainant contained in three VATE tapes should not have been admitted.

63 Two grounds were advanced. The first was that different versions of the complainant's evidence were given. The second was that the complainant was unable to attest to the truth of the contents of the recording because it contained an admitted lie.

64 Section 37B of the Evidence Act 1958 provided that in a proceeding for a charge for a sexual offence, evidence-in-chief of a witness for the prosecution might be given in the form of a video recording of the witness answering questions if the witness was under the age of 18 years. The section permitted a pre-recorded form of evidence to stand as 'the evidence-in-chief of a [child] witness for the prosecution' and the recording was admissible in the proceedings 'as if its contents were the direct testimony of the witness ...' Sub-section (3)(c) provided that the recording was admissible in evidence in the proceeding as if its contents were the direct testimony of the witness, if the witness 'identifies ... herself and attests to the truthfulness of the contents of the recording ...'.

65 One of the purposes of the second VATE tape was to clarify certain statements made by the complainant in the first VATE tape. The third VATE tape was made to enable the complainant to disclose her knowledge of certain lies told by her cousin in her statement to the police and to give a different account as to how she went home from the reserve in Lalor.

66 In my opinion, the admission in evidence of the second and third tapes occasioned no unfairness to the applicant. The complainant was not cross-examined or coached in the second or third tapes, but rather invited to enlarge upon statements made by her and by her cousin. The procedure contemplated by s 37B is a departure from the procedure recognised by the common law but it was 'not intended to distort the balance of fairness in the trial which the common law procedure in criminal trials is designed to preserve.'[7] In determining whether to admit pre-recorded evidence, the overriding consideration is fairness of the trial.[8] Bearing in mind that at common law witnesses may be re-called and re-examined, I do not think that the manner in which the complainant's evidence was given operated unfairly to the applicant.

67 I turn to the contention that the complainant could not attest to the truthfulness of the contents of the VATE tape. The complainant at trial was asked whether she had watched the three VATE tapes. She said that she had and was then asked:

... apart from some answers in the tapes that say that you walked home and did not have sex with the man, Mr Qassim, are all the other answers in those three tapes truthful?

The complainant said the other answers were truthful.

68 In my view the statutory requirement was satisfied by the verification made by the complainant. The complainant did attest to the truthfulness of the contents of the tape. She was not to be taken to have failed to do so because the tape contained false statements, which she acknowledged.

69 Ground 9 of the application for leave to appeal against conviction is in the following terms:

The learned trial judge erred in failing to allow cross-examination that would test the previous answer that the complainant had given.

70 It would appear that the trial judge refused to allow counsel for the applicant to put questions to the complainant that traversed the same ground covered by earlier questions by counsel for the applicant's co-offenders. Counsel for the applicant in this Court submitted that counsel below should not have been 'constrained by the actions of those whose responsibility does not include welfare of counsel's client ...'.

71 In my opinion, the trial judge's ruling did not occasion any unfairness to the applicant. There is no reason to suppose that his counsel's questions would have elicited a different response from the complainant.

72 Grounds 10 and 11 can be considered together. They are as follows:

A miscarriage of justice was occasioned by the failure of the learned trial judge to release the SOCA material and LEAP report relating to the complainant to counsel for the applicant.
A miscarriage of justice occurred as a result:

(a) of the judge restricting production of the complainant's mental health records to 6 months prior to the events in question, the complainant having suffered from mental difficulties for many years a complaint with a similar modus operandi having taken place before that period; and

(b) of the judge failing to disclose to counsel for the applicant records that were produced on the grounds that they did not relate to psychosis diagnosis or treatment;

(c) of the judge failing to consider that symptoms of other mental abnormalities such as personality disorders that may be relevant to the making of a false complaint.

73 Prior to the commencement of the trial, the accused subpoenaed documents from the Chief Commissioner of Police, the Austin Hospital and Eastern Health. The documents related to counselling and treatment of the complainant and earlier complaints she had made to the authorities of sexual offences by persons other than the applicant.

74 Counsel for the applicant sought to inspect the documents. Representatives of Eastern Health and the Austin Hospital filed affidavits deposing to their opposition to the disclosure of the documents on the ground that they 'reveal highly sensitive and highly confidential communications between a patient' and clinicians. It was said that the relationship of counsellor, clinician and patient was based upon confidentiality. The disclosure of the files might discourage other patients from relating their experiences and seeking care. Further, it was said, the patient might suffer emotional and psychological harm if the confidentiality that she expected was not observed.

75 Another judge in the County Court refused to allow inspection of the documents. That judge said that it was a relevant issue whether a witness's mental health affected his or her capacity to give reliable evidence, but, on reading the documents produced on subpoena, her Honour concluded:

I am not satisfied that the protected confider/complainant does have mental health issues which may affect her capacity to give reliable evidence.

Her Honour said that the material did not suggest that the complainant was psychotic in the six months leading up to the events the subject matter of the trial, which was the period to which the subpoenas were confined.

76 The judge took into account the provisions of Division 2A of Part II of the Evidence Act 1958. The provisions were concerned with communications made in confidence to a medical practitioner or counsellor by a person against whom a sexual offence has been alleged to have been committed. It was provided that a document was not to be produced if it would disclose such a communication and evidence was not to be adduced if it would disclose such a communication unless the court granted leave to produce the document or to adduce the evidence. Section 32D(1) provided that a court was not to grant leave unless it was satisfied on the balance of probabilities that the evidence had substantial probative value to a fact in issue and other evidence of similar or greater probative value was not available and the public interest in preserving the confidentiality of the communications and protecting a confider from harm was substantially outweighed by the public interest in admitting into evidence, evidence of substantial probative value.

77 Prior to the hearing of the appeal, this Court made orders permitting counsel for the parties to have access to the subpoenaed documents upon giving undertakings to keep the contents of the documents confidential. As a result, we have had the benefit of informed submissions from the Crown and defence counsel.

78 In my opinion, the judge correctly weighed the competing considerations of the probative value of the information contained in the subpoenaed documents on the one hand and the confidentiality of the communications and the consequences to the complainant of the disclosure of the communications on the other hand. I am also of the opinion that the limitation imposed by the judge restricting the period covered by the subpoenaed documents struck a sensible balance between permitting a fishing expedition into the private affairs of the complainant and enabling the applicant to identify the material relevant to the issues in the trial.

79 The relevance of a mental disorder suffered by a witness affecting the witness's capacity to observe, recollect and express the matters which the evidence of the witness is tendered to prove, is obvious.[9] The question is whether the mental condition of the witness has affected his or her ability to give reliable evidence. The evidence of the disposition to make false complaints of sexual abuse is also relevant. In Nicholls v R,[10] McHugh J said:

[A]t least in relation to sexual offences cases, issues about credit (for example, evidence showing a disposition on the part of the complainant to make or support false complaints) ultimately go to whether or not the offence was committed.[11]

80 In the present case, counsel for the applicant relied upon disclosure that the complainant had complained of sexual assaults and abuse by others, including sexual abuse by relations and a gang rape. He also relied upon the disclosure that the complainant had fought with other young persons on a number of occasions, had stabbed a boy, had run away from home and had shoplifted. As to her mental state, counsel pointed to references in the documents that the complainant had attempted suicide and had experienced dissociative states connected to the consumption of medicine and illegal drugs. There was a reference to a statement by the complainant, made almost two years before she gave evidence, that she heard the devil laughing at her and a voice calling her name.

81 The fact the complainant had been the subject of other sexual assaults did not itself render it more or less likely that the complainant had sexual intercourse with the applicant and another youth on 1 April 2008. The applicant accepted that the information contained in the documents subpoenaed from the Chief Commissioner of Police did not disclose that the complainant had made false allegations of the commission of sexual offences and such a conclusion is not to be reached simply because a complainant has been sexually abused on more than one occasion.

82 Viewed overall, I do not think that the troubled upbringing of the complainant and the mental state that might be thought to be the result of her experiences was liable to detract from the strength of her testimony. In short, I do not consider that any of the information contained in the subpoenaed documents could significantly affect the reliability of the complainant's evidence. The probative value of the information in the documents subpoenaed from the health authorities hardly outweighed the public interest in the confidentiality of the communications and the harm likely to be caused to the complainant if the material were publicised and she were questioned about it. In my opinion, the applicant was not entitled to adduce evidence of the matters contained in the documents of the health authorities.

83 As matters now stand, the credit of the complainant does not loom large. The applicant was acquitted on the charges of rape. It was common ground that the applicant had sexual intercourse with the complainant. The issue on which his conviction on the counts of sexual penetration of a child under the age of 16 turned was whether he believed on reasonable grounds that the complainant was aged 16 or older.

84 Counsel for the applicant relied upon the fact that the documents subpoenaed from the Commissioner of Police disclosed that one of the persons accused of sexual abuse by the complainant denied the charge. The prospect of a trial within a trial of the truth of the accusation is hardly inviting.

85 Accordingly, I do not think that the judge erred in refusing the application to inspect the subpoenaed documents. Put another way, if it be assumed that the application to inspect the subpoenaed documents should have been granted, in my opinion, the disclosure would not have affected the outcome of the trial.

86 Ground 12 of the application for leave to appeal against conviction is:

The learned trial judge erred in:

(a) preventing counsel for the applicant addressing the jury upon distress;

(b) her directions as to distress.

87 At the conclusion of the address to the jury by counsel for the applicant, there was a discussion between the trial judge and counsel for the parties. Counsel for the applicant then applied to make a further address to the jury on the topic of distress. The judge refused to allow him to do so, saying:

No, Mr Thompson, you're finished, you've had long enough, no.

Counsel made two further attempts to address the judge, but was told to sit down. The complaint as to the judge's directions to the jury was that her Honour failed to tell the jury that 'distress carries little weight as a global statement'.

88 Counsel for the applicant did not identify the aspects of distress which counsel for the applicant at trial wished to canvass in a further address.

Accordingly, while I think it was a pity that he was cut off, it is difficult to conclude that the refusal resulted in a miscarriage of justice. While ordinarily evidence of a distressed condition on the part of a complainant, who has suffered sexual assault, would carry little weight, and jurors should be so warned by the trial judge in the course of the charge,[12] in the present case, having regard to the limited issue upon which the applicant's convictions depend, I do not regard the omission as one which has occasioned any injustice.

89 In my opinion, the success of ground 1 relating to apprehended bias entailed the conclusion that the application for leave to appeal against conviction should be allowed, the appeal treated as instituted instanter and allowed, the conviction set aside and the appellant be retried.

[1] [2000] HCA 63; (2000) 205 CLR 337, 344-5. See also Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67; Watson, Re; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 258-263; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-4; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 571-575; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 81, 87, 96, 99-100; Johnson v Johnson (2000) 205 CLR 488, [11]; Smits v Roach (2006) 227 CLR 423, [53], [56] (Gummow J); Antoun v R [2006] HCA 2; (2006) 224 ALR 51, [51]; Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, [110]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429; GP v R [2010] VSCA 142.

[3] Gascor v Ellicott [1997] 1 VR 332, 362 (Ormiston JA). See also Ebner v Official Trustee in Bankruptcy, above, 360 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[4] Compare R v Goodall [2007] VSCA 63; (2007) 15 VR 673.

[5] Cf Viro v R [1978] HCA 9; (1978) 141 CLR 88, 146 (Mason J); R v Portelli [2004] VSCA 178; (2004) 10 VR 259, 273 (Ormiston JA). See also George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112.

[6] Cf R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, [78].

[7] R v Lewis [2002] VSCA 200, [11], (Winneke P).

[8] Compare Gately v R [2007] HCA 55; (2007) 232 CLR, 208, [96] (Hayne J).

[9] Bromley v R [1986] HCA 49; (1986) 161 CLR 315, 322 (Brennan J); Farrell v R (1998) 194 CLR 286.

[11] Above, [52]. See also [170] and [187] (Gummow and Callinan JJ).

[12] R v Flannery [1969] VicRp 72; [1969] VR 586; R v Rogers (2008) VSCA 125.

At a glance

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Judgment (131 paragraphs)

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Cases Cited (19)