LYSLE v R

Ground 1 The convictions were unreasonable and cannot be supported by the evidence, as in the particular and relevant circumstances those verdicts are inconsistent with the verdict returned in relation to the remaining count on the indictment. There is no reasonable basis for the inconsistency. 22There was no dispute as to the relevant legal principles to be applied in a consideration of this ground. They are sufficiently explored in MFA v R (2002) 213 CLR 606, TK v R [2009] NSWCCA 151 and Dungay v R [2010] NSWCCA 82 to which the Court was referred. It is sufficient for present purposes to quote briefly from the last two of these cases. In TK v R Simpson J, with the concurrence of the other members of the Court, said at [133]:- Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged. That this possibility may appropriately be taken into account was reaffirmed as recently as 2002, in MFA . Another possible explanation is compromise amongst a divided jury: see R v Crisologo (1997) 99 A Crim R 178. An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts. 23In Dungay v R , Giles JA with the concurrence of the other members of the Court, said at [11] - [12]:- It is not necessary to explore whether there is truly an addendum to the test derived from M v The Queen , or only an additional dimension within that test. Consistency or inconsistency of verdicts will always come down to what was open to the jury upon the whole of the evidence. Examination of the evidence, with an appreciation of how it was presented and left to the jury, will reveal whether there is a rational explanation for a verdict of guilty on one count and a verdict of not guilty on another count. In MFA v The Queen , for example, it was held at [36] that there was an explanation in the evidence of the differences between the verdicts, and that it was therefore open to the jury to be satisfied beyond reasonable doubt of guilt on two counts notwithstanding unwillingness to convict on the other counts. If a rational explanation cannot be discerned, it can be said that it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt in coming to the guilty verdict, or it can be said that there was otherwise a miscarriage of justice. The formulation will rarely be of moment, and is not in the present case. Ultimately, as Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [237], on reviewing the entirety of the case the court may maintain a comfortable satisfaction as to the guilty verdict upon the evidence separately considered concerning it. 24Undoubtedly, the evidence referred to above was capable of supporting the convictions. The contention advanced on behalf of the Appellant under this ground was limited to one that the difference between the verdicts on counts 1 and 2 on the one hand, and count 3 on the other, demonstrated a miscarriage of justice. 25It was submitted that the circumstances surrounding each of the alleged incidents were, according to the evidence, substantially similar and that there was no significant difference in the nature of the complainant's evidence in relation to the three counts with the consequence that the difference between the verdicts was an affront to logic and common sense. 26On the other hand, the Crown submitted that there were logical and reasonable explanations in the evidence for the difference in the verdicts. So far as the first count was concerned, the Crown drew attention to the evidence of K of seeing the Appellant carry the complainant outside the caravan, albeit, K said this occurred on at least two occasions. So far as the second account is concerned, the Crown drew attention to the evidence of the complainant's mother of seeing the complainant in the lounge room on their/her early return from Bingo. 27So far as the third account was concerned, the Crown pointed out that there were inconsistencies in the complainant's account. One of these inconsistencies was that, in her evidence, the complainant had said it was her left leg the Appellant had touched, while in the police statement, she had said it was her right leg. 28A more significant inconsistency was the difference between the complainant's statement to police that that she was still in the house when her mother arrived home and that she had gone back to the caravan with her mother and her firm evidence to the effect that this had occurred only once, and that was the occasion of the second assault. The inconsistency may well have left the jury wondering about the complainant's recollection and whether there was a third occasion of assault. 29One matter relied upon by the Crown was the jury's 4.30 pm note to the effect that they had reached a unanimous decision on "indictment 3" but were unable to reach a unanimous decision on "indictments 1 and 2". The Crown submitted that this demonstrated that the difference between the verdicts could in no sense be accounted for by compromise. 30That last proposition may be accepted but, nevertheless, it does not answer the complaint of inconsistency. However, that complaint is sufficiently answered by the differences in the evidence to which I have referred. This ground fails.

Ground 2 A miscarriage of justice occurred as a result of impermissible questions asked by the Crown Prosecutor 31Under this ground counsel for the Appellant complained not only about questions asked by the Crown Prosecutor but also remarks in the latter's closing address and a portion of her Honour's summing-up. 32The questions relied on in this ground are set out below in bold. The other questions are included merely to place those the subject of objection in context:- Q. See, sir, I suggest that what you were endeavouring to do with the police in this interview was to deliberately mislead them to present a picture that there would just have been no opportunity for you to have behaved towards (the complainant) in this way. What do you say about that? A. Never happened. Q. You were - no, you were deliberately trying to, number 1, leave open the possibility that you weren't even there during the period where they were living in the caravan at the back of the house, weren't you? A. No. Q. Number 2, you were deliberately trying to indicate to the police that there were no occasions that you were left at home in charge of the children while (N) and Joy went to bingo? A. They weren't because my children were there. Q. Left alone as the only adult in charge of the children? A. I wasn't alone with anyone. My son was the other person that was up. My daughter was in bed. Q. You were trying deliberately, sir, to suggest to the police that it was a bloody ridiculous suggestion that any of the children, (the complainant) in particular, would be in the main house during the night? A. I never said that. Q. The reason, sir, I'd suggest that you gave those answers in relation to those topics was to avoid any suggestion that you were at any time alone with (the complainant) in the house? A. No, that's not true. Q. So this occasion that you've just given some evidence about where you carried (the complainant) out of the caravan, where were your children that night? A. My son was in the lounge room watching TV. I recall that. Q. An you took (the complainant) up to the house? A. Yes. Q. Had you told your barrister about that episode before (the complainant) gave evidence? A. Absolutely no denial at all and I have told him. Q. Did it concern you that he didn't ask her any questions about that when he was cross-examining her? A. That's not for me to say. Q. Did you bring to his attention when he was cross-examining her that he hadn't ever put to her that there was an occasion where you had carried her from her bed up -- A. That's not for me to say. Q. Now, tell me, was that something that you had discussed at all with (N) before you did it? A. Beg yours? I didn't quite hear you, sorry. Q. No, I'm going back to 1981, this occasion that you've now given some evidence that there was an occasion that you took (the complainant) out of her bed. A. Yes, I don't deny it. Q. Did you talk to (N) about that before you did it? A. No. Q. Did you understand from Joy that she'd spoken to (N) about it before you did it? A. I presumed that (N) knew about it, yes, from Joy. Q. And, again, did it concern you that your barrister didn't - EDWARDS Well, I object to that. It's a presumption. He's being asked a hypothetical, you Honour. He's not given any evidence about any direct conversation that he heard. A presumption is not something that can be - it's not admissible. CROWN PROSECUTOR I'm entitled to ask the question I was about to ask, your Honour HER HONOUR: Yes, no, I will allow it, thank you, Mr Crown. CROWN PROSECUTOR Q. Did it concern you that your barrister didn't ever put to (N) that she was aware that you were going to go into the caravan and take (the complainant) out? A. It didn't concern me, no. Q. So, what was the reason that you were doing that again? A. Doing what? Q. Taking (the complainant) out of the caravan? A. Joy had asked me to make sure that the children came upstairs, that is the younger children. They used to fight like cat and dog and they certainly weren't asleep when I went down there to pick them up but (the complainant) decided that she wasn't going to move. Q. And you had a conversation with her about that while you were taking her out of the caravan, with (the complainant)? A. Yes. Q. You spoke to her at the time? A. Of course. Q. And did you observe whether (K) was awake at all while you were speaking to (the complainant)? A. Yes. Q. And was she awake? A. Yes. Q. But you did that, you say, without ever discussing it with (the complainant's) mother beforehand? A. Yes. 33It was submitted that the highlighted questions amounted to a challenge to the Appellant's credibility and were unfair and this unfairness was compounded by the remarks in the Crown Prosecutor's address and in the summing-up. Reference was made to a number of cases where what is known as the rule in Browne v Dunn (1893) 6 R 67 has been considered, including R v Dennis [1999] NSWCCA 23 at [35]-[37] per McInerney J at [45]-[51] per Spigelman CJ; R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46 at [19]-[24] per Sheller JA; Picker v R [2002] NSWCCA 78 at [38]-[62] per Smart AJ; R v Scott [2004] NSWCCA 254 at [41]-[63] per Hulme J; R v Banic [2004] NSWCCA 322 at [23]-[29] per Barr J; RWB v R [2010] NSWCCA 147 at [63]-[102] per Simpson J; Llewellyn v R [2011] NSWCCA 66 per Garling J at [137]. 34The first proposition may be accepted. Undoubtedly the highlighted questions were intended as a challenge to the Appellant's credibility but there is nothing inherently wrong in that. However, the first and the third questions were unfair. Although of course it was for the Appellant to claim professional privilege if he wished to maintain it - see Evidence Act 1995, s 118 - an accused person should not be asked, certainly for the first time in the presence of a jury, as the content of conversations with his legal advisers. For an accused to deal with such a question properly, he is entitled to legal advice and the potential for prejudice if either the accused or his counsel raise this need in the presence of the jury in preference to the question being answered is obvious. The first and third questions (in the first group) should not have been asked. 35The other two questions, commencing "Did it concern you" were not affected by the same considerations and were not unfair. Of themselves, or combined with either a positive or negative response, they were not calculated to take the Crown far. If a positive response was pursued it would likely have resulted in evidence or a suggestion that counsel's inaction did not reflect his instructions: Given the possible reasons why a layman, almost certainly ignorant of the factors relevant to cross-examination, would not be concerned about his counsel's failure to ask questions on a particular topic, a negative response was also unlikely to advance the Crown case. However this did not make the "Did it concern you" questions unfair. 36The Appellant's answers to these questions must also be noted. "That's not for me to say" and "It didn't concern me, no" are inherently credible and certainly tend to ameliorate, if they did not extinguish, any adverse inference arising from the asking of the questions. 37A further point to be made about the three highlighted questions in the first group is their irrelevance. The complainant had alleged that the Appellant had carried her from the caravan on one occasion. In his evidence in chief the Appellant had said the same. This suggests strongly, and there was nothing in the evidence to the contrary, that there was no occasion for the Appellant's counsel to question the complainant about that particular aspect of her evidence. Furthermore, directed as those three questions were to the Appellant's credibility, ss 102 and 103 of the Evidence Act made them inadmissible unless they could substantially affect the assessment of the Appellant's credibility. Because of the similarity of the evidence of the complainant and the Appellant on the issue, those questions could not. 38The background to the further question that is the subject of this ground is that N, the complainant's mother, had given evidence to the effect that her children were always in bed prior to her departure for Bingo and there was a rule that, "except for an emergency like going to the toilet" they were to stay in bed until the next morning. Two questions and answers in cross-examination were as follows:- Q. If I said to you in fact that the children spent quite a bit of time in the main house. A. Not after they were put to bed. Q. And if I said to you that in fact ordinarily when you left for bingo the children weren't in bed yet. A. Yes, they were in the caravan, they were in bed. They could have read a book or something, but they were in bed. 39The Appellant gave evidence that sometimes he brought the children out of the van into his home pursuant to an instruction from his wife, "to make sure that they didn't trash the van, so to speak" and that sometimes when the women returned from Bingo the children were in the house watching TV. He did not suggest that he had discussed this, or his entering the caravan with N. In the circumstances, while one might have expected the Appellant's counsel to put to N that she was aware that the Appellant was going into the caravan and had taken the complainant out, it does not seem to me that there was a requirement that such a question be put. It follows that the fourth question was also irrelevant and, directed as it was to the Appellant's credibility, ss 102 and 103 of the Evidence Act made it inadmissible unless it could substantially affect the assessment of the Appellant's credibility. It could not. 40These conclusions make it unnecessary for me to explore the limits of the rule in Browne v Dunn as it applies to the cross-examination of accused persons. In MWJ v R [2005] HCA 74; (2006) 80 ALJR 329, the majority of the High Court threw doubt on the application of the rule without serious qualification but their Honours' remarks were obiter and I do not find it necessary to pursue them. Otherwise the authorities make clear that the rule has application in those circumstances although caution is required of Crown Prosecutors trying to rely on it - see R v Birks (1990) 19 NSWLR 677 at 691. I would however add the following. In Llewellyn v R [2011] NSWCCA 66 at [137], Garling J in summarising principles he deduced from earlier authorities on the topic said of cross-examination of an accused predicated on a failure of his counsel to put something to a Crown witness:- "(d) Except in the rarest of cases and only where a proper basis exists, cross-examination of the accused in this manner is highly and unfairly prejudicial to the accused, with the potential to undermine the requirements of a fair trial: R v Birks at 703D per Lusher AJ; R v Dennis at [45]-[46] per Spigelman CJ; Picker v R at [41]-[42] per Smart AJ." 41I would respectfully disagree with his Honour's reference to the "rarest of cases". His Honour relied on three authorities for this statement. The first were remarks by Lusher AJ in R v Birks . Those remarks do not reflect the views of the majority in that case. The second authority relied on were observations of Spigelman CJ in R v Dennis at [45] - [46]. Paragraph [45] and the cases referred to in that paragraph were directed to a different topic and although his Honour's incorporation of "extremely dangerous" in [46] provides some support for Garling J's views, this description goes appreciably beyond the approach in R v Birks and may well have been influenced by the factor of prominence to which Spigelman CJ referred. 42The third authority Garling J relied on were remarks of Smart AJ in Picker v R at [41] - [42]. The remarks in those paragraphs were directed to the facts of that case and, as was pointed out in R v Scott at [61], Smart AJ did not indicate what it was about the cross-examination in Picker v R that led him to characterise it as "impermissible and highly and unfairly prejudicial". 43I take the liberty also of quoting what I said, with the concurrence of Sully and James JJ, at [62] of R v Scott :- Furthermore if one accepts, as the Chief Justice's endorsement of the quoted remarks from R v Manunta makes clear one may accept, "that it is legitimate ... to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or witnesses subsequently depose", in cases where it is intended to contrast that failure with evidence subsequently given by an accused, the rule in Browne v Dunn itself make it obligatory to put to an accused the inferences or conclusions which it will be suggested should be drawn, in order that the accused may provide such explanation as he is able. 44It may be that the caution that Crown Prosecutors have been told to exercise should inspire them to first raise the issue of any explanation for a contrast between the silence of an accused's counsel and evidence of an accused in the absence of the jury or, if they do not adopt that course, of going little or no further than drawing the contrast, merely asking an accused if he can give any explanation for the difference, and suggesting he has made up his evidence on the topic. Any explanation may involve a waiver of the confidentiality of communications by an accused with his legal advisers and that argues for at least some aspect of the matter being first raised in the absence of the jury. However, in an appropriate case the Crown is entitled to the benefit of the rule and, as was said in R v Scott , this requires that an accused be given an opportunity to provide an explanation. Nor should the Crown be obliged to lose such advantage as the rule provides by forewarning an Accused of too much in the absence of the jury. 45To return to the instant case, all four questions the subject of the present ground were irrelevant and inadmissible by reason of s 102 and 103 of the Evidence Act . Two of the questions were unfair. There was objection to only the fourth. 46The remarks in the Crown Prosecutor's address and the summing-up that are relied on under this ground are those set out in bold in the following passages:- Crown Prosecutor The circumstances of that as explained in the defence's case, the Crown says would leave you with some serious concerns as to whether you can accept the accused's explanation, even if it was supported by his wife Joy. Your task is made somewhat more difficult by the fact that the version that the accused gave, that he carried (the complainant) or that he'd been told in effect by his wife to bring the children up to the house after the wife and (N) had gone to bingo. That circumstance was never put to (the complainant) and so you haven't had an opportunity to assess what her response would have been had that been suggested to her in the witness box and it was never put to (K) that that's what had happened on the occasion that she gave evidence or occasions that she gave evidence that she saw the accused taking (the complainant) out of the room. Nor was that factual scenario ever put to (N) in cross-examination, that the usual arrangement, to paraphrase the evidence as I understood it, that the usual arrangement had been that the children stayed in the main part of the house and then (N) wanted to change it this one particular night, for the first time and leave the children down at the caravan. So Joy said to John as she was walking out the door, 'Look that's not what's going to happen. I want you to go down there and bring the children up'. So you haven't had an opportunity to assess the response of (the complainant) or (N) or (K), to that factual dispute. (emphasis added) Her Honour He asked you to contrast (the complainant's) demeanour with that of the accused. He submitted to you, or suggested to you, that the accused avoiding answering questions and didn't provide straight answers, particularly in answer to cross-examination about three issues from the record of interview. Firstly, he didn't remember them living in the caravan and he was at sea at the time. And he brought your attention to questions 9, 152 and 153. I think that's question 152 and 153 I apologise. He didn't remember Joy and (N) going to bingo or leaving him in control of the children. And you have the interview, of course, especially questions 159, 163 and 173. Thirdly, there's a suggestion that Joy's children would use the toilet in the main house during the night was ridiculous, especially question 178. The accused's evidence, that he did carry (the complainant) up to the house from the caravan on one particular night, this was not put to (the complainant), (N) or (K) so you had no opportunity to assess their response to that evidence. The inconsistencies between the accused's account and Joy Lysle's evidence .... 47The first point to be made so far as the Crown Prosecutor's remarks are concerned is that they were directed, not to the Appellant's credibility but to the assistance the jury might have derived had questions on the topics been put to the complainant, her sister and mother. The second is that, for reasons apparent from what I have said above, there was no point in questioning the complainant or her sister on the topic of whether the carrying of the complainant from the caravan was inspired by the Appellant's wife. Although it had not been put to N that "the usual arrangement had been that the children stayed in the main part of the house", questions quoted above to the effect that "the children spent quite a bit of time in the main house?" and "ordinarily when you left for Bingo the children weren't in bed yet" were close enough to answer this submission. 48So far as the further point made is concerned that it was not put to N that she wanted to change the usual arrangement for this one particular night, it was the Appellant's wife not the Appellant who gave evidence to that effect. At the time he was cross-examining, the Appellant's counsel may well not have had any advance notice of what the Appellant's wife was going to say. Because of this, and the other sorts of possibilities adverted to in R v Birks , it would have been preferable if the submission had not been put in the bald terms that it was although the fact that it was rather directed to the absence of a response from Crown witnesses rather than to the Appellant's credibility removes much of its possible sting. 49Her Honour's brief reference to the topic was to the same very limited submission. 50In these circumstances, although there were some errors in the trial, they were of a relatively minor, and in my view inconsequential, nature and could not have had any significant impact on the jury's assessment of the Appellant's credibility. I am satisfied that there was no miscarriage of justice. This ground also fails. 51Because there were some arguable errors in the trial, but the ground of appeal fail, the orders I would propose are:- (a) Grant leave to appeal. (b) Dismiss the appeal. 52SCHMIDT J: I agree with RS Hulme J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012