M A C v Tasmania [2018] TASCCA 19

M A C v Tasmania [2018] TASCCA 19 | Case summary | Zoe

[15]

There are two appeals before the Court. The appeal against conviction is without merit and I join in the order dismissing the appeal for the reasons given by Martin AJ.
The other appeal is an appeal against sentence. The appeal is brought by the Crown. It asserts manifest inadequacy in the sentence imposed by Brett J.
The appellant was found guilty by a jury of a single count of rape contrary to s 185 of the Criminal Code. He was sentenced to 3 years' imprisonment backdated to the time he was taken into custody. An order was made that he be eligible for release on parole after serving half that sentence. His name was placed on the register pursuant to the Community Protection (Offender Reporting) Act 2005 for a period of 8 years.
At trial the complainant had given evidence that she had awoken to the appellant having intercourse with her. She said that she had dropped in and out of consciousness before becoming upset, at which point the appellant allegedly ceased having intercourse with her, told her she was having a nightmare, and then left the bedroom. The appellant's evidence at the trial was that he did not have intercourse with the complainant with or without her consent. He has maintained his innocence throughout.
The factual findings made by the learned sentencing judge which informed his sentence were these:
1. The appellant's motives in assisting the complainant to his bed were innocent.
2. The appellant had frequently acted towards the complainant in a manner appropriate to his role as a friend and step-father.
3. He had been supportive of the complainant and the complainant's family in relation to the breakdown of his partner's marriage and her on-going difficulties with her former husband (the complainant's father).
4. He was otherwise a person of good character.
5. His prior convictions were not of significant relevance to the crime. Specifically in that respect, his Honour determined that those matters did not detract from the positive aspects of his character "demonstrated by your industry and your relationship to other people including the members of this family".
There was a proper basis for those findings, and they are relevant sentencing considerations.
The principles applicable to an appeal against sentence are frequently repeated in this Court and others. All roads lead back to the decision of the High Court in House v The King (1935) 55 CLR 499, where the Court identified two kinds of error; specific errors of principle, and cases in which there has been some misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]. This case involves resort to the second type of error. As such no specific error is pleaded. Rather it is the appearance of markedly different outcomes between cases which forces the conclusion that there must have been some misapplication of principle.
The analysis will include a consideration of comparable sentences. In DPP v Dalgliesh (a pseudonym) [2017] HCA 41, the Court, having said that sentences are not binding precedents, restated the principle articulated in Hili v The Queen [2010] HCA 45, 242 CLR 520 that history does not establish that a particular range is correct, and nor does it establish that upper or lower limits to the range are the correct upper and lower limits. Relevantly, in my view, the Court stated that an examination of sentences may inform the task of sentencing, but "such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the Court" [83].
The State provided the Court with a table of sentences imposed for single crimes of rape between 2005 and 2017. That table revealed a sentencing range from 6 months' imprisonment wholly suspended to 6 years' imprisonment. The Sentencing Advisory Council Report "Sex Offence Sentencing: Final Report No 4" published in August 2015, disclosed a median sentence of 37.5 months during the period 2008 to 2014.
The sentence imposed here was, self-evidently, within the established range. I do not elevate that observation to the status of a conclusion to this appeal because that would overlook the High Court's comments in Dalgliesh (above). At [84] the Court said, "having accepted that a significantly higher sentence was warranted in the circumstances of the case 'but for' current sentencing practices, the Court of Appeal was not correct to end its task by treating those current sentencing practices as a complete answer to the question whether the sentence imposed was manifestly inadequate. It was required to determine that question and to sentence, according to law". To say a sentence is too light or too harsh is to adopt an approach which commences with a correct range, or an upper or lower limit to such range, which approach goes beyond its purpose if it is used to "fix boundaries": Dalgliesh (above) at [83].
Ultimately it is a matter which requires advertence to the particulars of the case, which includes the circumstances of the offending, the need to vindicate the victim, to punish the offender and deter others. It is not detached from the circumstances of the offender: Elias v The Queen [2013] HCA 31, 248 CLR 483. In that case French CJ, Hayne, Kiefel, Bell and Keane JJ said "the administration of the criminal law involves individualised justice". And again in Dalgliesh (above) at [49]: "the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case" [my emphasis].
The process of instinctive synthesis in which a sentencing court engages will result in a sentence which is unimpeachable where it gives weight to the relevant sentencing principles individualised to the circumstances so as to result in a "just sentence on an offender". The sentencing range is merely "a yardstick"; It will "illustrate (although not define) the possible range of sentences available": R v Pham [2015] HCA 39, 256 CLR 550 at 560 [29]. If I may so express it, it is a starting point not the end game.
In my view the learned sentencing judge has approached the matter correctly.
Whilst I unreservedly accept that the protection of vulnerable young women is a matter of high importance, and that men in trusted positions must expect that abuse of their position of trust against vulnerable members of the family will be met with condign punishment, I find myself unable to join in the conclusion that the sentence which was imposed was so manifestly inadequate as to be unreasonable or plainly unjust. In my view, the State has not demonstrated error of the second type referred to in House v The King (above).
The appeal against sentence should be dismissed.
It is suggested that the sentences for single crimes of rape in this Court appear to be low compared to other jurisdictions. Just how different the sentences are has not been the subject of evidence and submissions, and I would prefer to refrain from expressing any view. Whilst it is useful for the Court to be aware of sentencing patterns in other jurisdictions, sentencing is a process of individualised justice. As such I cannot, with respect, join in a generalised indication that, in future, offenders can expect to receive lengthy terms of imprisonment which are longer than the average periods imposed in the past.

[16]

MAC (the appellant) was charged on indictment with indecent assault and rape. Both charges involved the same complainant. A jury found the appellant not guilty of indecent assault, but guilty of rape contrary to s 185(1) of the Criminal Code.
On 8 November 2017 Brett J imposed a sentence of imprisonment for three years and ordered that the appellant be eligible for release on parole after serving one half of that sentence. In addition, pursuant to the Community Protection (Offender Reporting) Act 2005, his Honour made an order that the name of the appellant be placed on the register of sexual offenders and that the appellant comply with the reporting obligations under that Act for a period of eight years.
Initially the appellant appealed against his conviction on the sole ground that the verdict of guilty was "unsafe and unsatisfactory in all of the circumstances". The Director of Public Prosecutions (the Director) appealed against the sentence of three years' imprisonment on the sole ground that "the learned judge erred in fact and/or in law in that he imposed a sentence that was manifestly inadequate in all the circumstances of the case".
In written submissions filed on the appeal, the appellant made an application under s 404 of the Code "for an order for a venire de novo". In substance the appellant sought leave to adduce "fresh" evidence which, the appellant submitted, demonstrated that a miscarriage of justice had occurred. Subsequently the appellant sought leave to add a ground of appeal to assert a miscarriage of justice had occurred "in that fresh and credible evidence not available at the trial is now available". Leave was granted.
For the reasons that follow, in my opinion the appellant's appeal against his conviction for the crime of rape should be dismissed. Further, in my view the Director's appeal should be allowed and the sentence of three years' imprisonment set aside. I would impose a sentence of five years' imprisonment and order that the appellant be eligible for parole after serving half of that sentence.

[41]

The appellant gave evidence that he and the complainant had a "great relationship" and that she would come to him for "everything and anything" (T367). He agreed that he made comments about the complainant's physical appearance, but said it was not in a sexual manner. "It was more of a manner of encouragement, an affirmation to restore confidence so to speak, yes" (T373). He made the same comments to everyone and it was "nothing out of the ordinary". The appellant denied possessing a sexual interest in the complainant (T373) and said he did not find her attractive (T427). Physically their contacts were normal family interactions such as hugs or an occasional kiss goodnight on the cheek (T379). The appellant agreed in cross examination that it was a relationship of "mutual trust" (T400).
The appellant denied suggesting that the complainant should perform oral sex on him. He said that he had never used the word "gobby" (T374).
The complainant began drinking alcohol when she was 17. She was in years 11 and 12 at school. Her friends called her "two cruiser loser". She said the appellant appeared to be very interested in training her to handle alcohol. He would bring alcohol home on school nights and they would drink together. At this time the appellant was working at several pubs and clubs.
The complaint's youngest sister gave evidence that when she was living in the home after their mother had travelled overseas, the complainant often drank in the house with her friends, but she was not sure how many times the appellant was present (T260). On one occasion the complainant told her the appellant would get her drinks to see how she handled it.
Ms B said that as early as 2012 she, the complainant and other friends, would drink at the complainant's house and the appellant would also consume alcohol with them. According to Ms B, the alcohol was purchased by the appellant (T310 and 311).
During cross examination Ms B conceded she did not have a recollection of the appellant picking up a glass and drinking from it. She added that she did not have a recollection of the complainant picking up a glass of alcohol and putting it to her mouth. In that context she agreed that she had "supposed" that the appellant was drinking because everyone in the group was drinking. When it was put to her that she supposed the appellant was drinking because he was amongst others who were drinking, she added "and the fact that he bought us the alcohol" (T322).
The appellant agreed he supplied alcohol to the complainant and spoke of the circumstances involving a "merit system"(T376-378):

[96]

The appellant gave evidence that he massaged the complainant on only three occasions. First in the front lounge room, secondly, in the hallway and, thirdly, in the kitchen/lounge area (T382). However, the appellant denied asking the complainant to remove her bra or attempting to touch her on the breasts. He denied attempting to touch the complainant's vagina or placing his hands in a manner moving towards her vagina.
During cross-examination the appellant denied that the complainant said he had gone too far or said "look, what are you doing?" (T428). He said she never appeared uncomfortable. Nor did she say anything to suggest she was uncomfortable or that he had taken the massage too far (T429). Similarly the appellant denied apologising for saying that he had slipped (T433).
In 2012 the relationship between the complainant and her mother deteriorated and she moved out of home. The complainant described the relationship with her mother at that time as "non-existent". Over the next four months there was no contact between the complainant and her mother, but she maintained contact with the appellant who often came to her residence where she cooked for him and her brothers. Sometimes the appellant would visit on his own and they would "just talk". During these discussions the appellant was very persistent that the complainant's mother wanted her back, and said the complainant should return to the house. It was very late in 2012 when the complainant returned to live in the family home.
Shortly after the complainant returned to the family home, her mother left on a trip overseas which was expected to last approximately one month. She stayed away for a number of months. The complainant lived in the home with the appellant and her younger sister who was then aged about 15 years.
When the complainant had just turned 18 and had left school, she was not working and did not know what she wanted to do. She began to drink heavily. There were occasions when she would come home in an extremely intoxicated state. The complainant's younger sister explained what would happen on those occasions (T261):

[175]

Let's just go to - let me just take you to - can you remember after this event a night when she - she came home and you spoke to her?.....There was one night she came home and she had been crying and she told me that something happened to her and she didn't tell me who - who it was and she wouldn't tell me anything else other than something happened. And then there was another night that she came home, she'd been - I think she'd been out drinking again and she came home crying and - with like [the appellant] came home as well, the same time, and - and she told me - so she asked me to talk to her and we went into her room. [the appellant] was telling me not to talk to her and that she was drunk and, 'Don't listen to anything that she says'. I think [the complainant] told him to get out and I told - I just said like I want to talk to her. He kept asking me what she was saying and then eventually, yeah, he - I believe he left, like he went I don't know what part of the house but we were in [the complainant]'s room. [the complainant] and I were in her room and we sat on the bed. She told me - she asked me if I remembered what she had told me and she made me promise to her that I wouldn't say anything and she just told me that [the appellant] raped her. I asked her - I asked her if it was the night that I had - because I told her I heard noises and I asked her was it that night and she said, 'Yes'. She told me that night as well when we were talking, she told me that [the appellant] had - because I asked her if it had happened before or if it was just the one night and she told me that it was just the one night and then she told me that in the past when she was in high school [the appellant] would give her massages and he - on an occasion she said that he was giving her a massage and he put his hand down her pants. She told me - because I told her that we need to tell Mum when she told me and she said that she didn't want to tell Mum because Mum was ... She said that she was scared that Mum wouldn't come home or that Mum would hate her and I just said to her, like it's not something that she should take to her grave and that she should keep to herself. So we agreed that when Mum gets home we would tell Mum.

[291]

In other words, with respect to the charge of indecent assault, the jury was told by the trial judge that even if they accepted the evidence of the complainant that the appellant's hand or fingers touched her vagina, it was open to the jury to acquit the appellant on the basis that the jury was not satisfied that the appellant had intentionally touched the complainant's vagina. In this context, the complainant's evidence that she accepted the appellant's explanation that his hand had slipped was significant. On the prosecution case, the primary and only witness displayed a doubt before the jury as to whether the appellant's action in touching her vagina was intentional.
Fourthly, the complainant's evidence with respect to the charge of indecent assault stood alone except for her broad complaints to her younger sister and Ms B that during a massage the appellant had "put his hands down her pants" and had "fingered her". By way of contrast, in addition to complaint evidence, the complainant's evidence as to the circumstances attending the rape found significant support in the evidence of her younger sister. The younger sister said that when the complainant arrived home, she could see that the complainant had been drinking. She assisted the complainant to the complainant's bedroom and put her in bed, fully clothed. After getting a bucket and water she returned to her room. Later she heard the complainant crying in the appellant's bedroom and observed that the complainant was not in her own room. She also heard sounds consistent with sexual activity.
If accepted by the jury, the younger sister's evidence provided strong circumstantial evidence in support of the Crown case. Further, bearing in mind that the evidence of the appellant as to how the complainant came to be in his bedroom was in stark contrast to the evidence of the younger sister. Acceptance of the younger sister and rejection of the appellant in this regard inevitably led to a conclusion that the appellant did not have an innocent reason for taking the complainant into his bedroom and lied on oath about those circumstances. In this way, not only was the prosecution case strongly supported, the case for the appellant and his credibility were significantly damaged.
Next, viewed broadly, the conduct of the complainant following the evening in question was not inconsistent with her evidence that intercourse had occurred. As is so often the case, there were competing views that could reasonably be advanced to the jury, but it was plainly open to the jury to view the conduct of the complainant in making complaints and confronting the appellant as broadly consistent with her evidence that intercourse had occurred.
Finally, the trial judge emphasised to the jury that their task was "not simply a case of choosing which of those versions you prefer". His Honour gave clear directions that even if the jury positively disbelieved the appellant, the jury should not immediately assume guilt, but was required to consider the evidence the jury accepted and, on the basis of such evidence, to determine whether the jury was satisfied of guilt beyond reasonable doubt.

[334]

The youngest sister gave evidence on the hearing of the appeal. As to the exchange concerning the "fake cry", the youngest sister agreed she only produced some of the conversation. It concerned something that had happened to the youngest sister at school and about which the complainant was sympathetic and supportive. What she told the complainant was true and she was upset about what had happened to her.
This proposed evidence is irrelevant. Counsel for the appellant did not suggest that it possessed any probative value concerning the issues at trial or the credibility of the complainant.
Ultimately, counsel for the appellant agreed that the appellant's case with respect to fresh evidence from the youngest sister rests solely on her affidavit and evidence concerning the conversation with the complainant on the complainant's 18th birthday or shortly before that birthday. This was the conversation in which, according to the youngest sister, the complainant told the youngest sister that the appellant had raped her. By the conclusion of the evidence, other matters upon which the appellant might have sought to rely had fallen by the wayside. For example, the request by the complainant that the youngest sister look at their mother's passport occurred after the evidence at the trial had been concluded. The youngest sister agreed that when the complainant made the request, she said her lawyer needed the date that their mother left Australia to go to the Philippines and the date she came back.
As to the fact that the complainant kept a diary, although counsel for the appellant was minded to suggest that there might be some relevance to that evidence, she was unable to articulate how the evidence could be relevant.
In these circumstances, therefore, the critical "fresh" evidence upon which the appellant seeks to rely is found in pars 5-12 of the youngest sister's affidavit which concern the conversation about the appellant raping the complainant, but which the youngest sister said in her affidavit and evidence occurred in December 2012. At that time, the youngest sister was aged 12. There are two significant differences between the complaint about which the youngest sister gave evidence and the evidence of the complainant concerning the rape of which the appellant was convicted.
First, if the youngest sister is correct about the conversation occurring in December 2012, the complainant made a complaint of rape approximately three months before the rape about which the complainant gave evidence.
Secondly, according to the youngest sister, the complainant said the appellant had "spooned her from behind and had sex with her". This description of the sexual act is different from the sexual act described by the complainant in evidence which amounted to the crime of rape of which the appellant was convicted.
It is necessary to examine carefully the affidavit and evidence of the youngest sister concerning this conversation.
In her affidavit, the youngest sister said the conversation occurred just before the 18th birthday of the complainant (20 December). In evidence, the youngest sister was positive that the conversation occurred on the complainant's 18th birthday.
In the affidavit, the youngest sister said that the complainant lay on the bed and told her that when she had been awake, the appellant "spooned her from behind and had sex with her". The affidavit then states that the complainant "didn't give any more details than that".
In evidence, the youngest sister said that the complainant showed her what the appellant had done and told her that it had occurred "years before the date she said that it happened". Counsel followed up:

[392]

The evidence of the youngest sister falls to be considered in the context of the trial evidence. At trial, three witnesses gave evidence of complaints by the complainant made before the complainant's mother returned from the Philippines. The complainant's younger sister gave evidence of a complaint made within a night or two of the occasion on which she put the complainant to bed, but later heard the complainant crying in the appellant's bedroom. According to the younger sister, the complainant related the events to that particular night. Further, on the occasion of the complaint, the appellant kept interrupting by saying to the younger sister that the complainant was drunk and that the younger sister should not listen to anything the complainant said.
A friend, Mr A, said the complainant told him the appellant had raped her and the conversation occurred within a day or two of the events.
Ms B gave evidence of a complaint of rape by the appellant approximately two or three weeks after she received the message on her Facebook from the complainant that she had been "assaulted" and "fingered".
In the period of approximately March - June 2013, on three occasions the complainant spoke to three different people alleging that the appellant had raped her shortly before the conversations. These complaints occurred before the complainant's mother returned from the Philippines. Their timing stands in sharp contrast to the timing of the earlier complaint in December 2012 about which the youngest sister gave evidence.
In 2013, therefore, the complainant made three complaints, each of which was related to a single occasion in 2013, being an occasion involving a sexual assault upon the complainant which occurred shortly before the complaints were made. On that unchallenged evidence, plainly the complainant was not speaking of a rape that occurred "years before". If, in December 2012, the complainant made the complaint described by the youngest sister, it appears the complainant was speaking of an occasion different from the occasion about which she complained in 2013 to her younger sister, Mr A and Ms B, and in respect of which the appellant was convicted of rape.
Apart from the timing, the nature of the sexual assault which was the basis of the 2013 complaint and conviction was quite different from the nature of the sexual assault which the youngest sister said was described to her by the complainant in December 2012. According to the youngest sister, the complainant spoke of being "spooned" which is notably different from the circumstances described in evidence by the complainant.
It is implied in the evidence of the youngest sister that she believed the "second allegation" made by the complainant was a statement by the complainant inconsistent with her December 2012 statement to the youngest sister because it placed the sexual assault as having occurred in 2013 rather than "years before" the conversation in December 2012. However, in view of the timing and content of both complaints, the obvious inference is that in December 2012 the complainant was speaking of a sexual assault that occurred well before the occasion in respect of which the appellant was convicted. The obvious inference is that the complainant spoke to the youngest sister in December 2012 of an occasion which would amount to an earlier uncharged act of sexual assault. This discussion assumes, of course, that the conversation in December 2012 described by the youngest sister occurred.
As to the reliability of the evidence of the youngest sister, and the availability at trial of her evidence, there are a number of areas of concern. First, in her affidavit the youngest sister said the conversation occurred just before the complainant's 18th birthday. She specifically stated that the complainant was only 17 and that the complainant had turned 18 by the time she made her "second allegation" about the appellant. In evidence, the youngest sister was positive that the conversation occurred on the complainant's 18th birthday.
Secondly, in her affidavit the youngest sister said the complainant was lying on the youngest sister's bed when she said the appellant had "spooned her from behind and had sex with her". The affidavit states that the complainant did not provide any more details. In evidence, the youngest sister said the complainant showed her what the appellant had done and said it had occurred "years before". The youngest sister said she had a clear memory of the complainant telling her that it had occurred years before.
Thirdly, the youngest sister gave evidence that after the complainant made the allegation to their mother, there was a lot of conversation about the allegation. By the time the youngest sister returned in November 2014 to live with her mother and the appellant, she was of the view that the complainant was lying. That view was "based on a lot of things, but mainly that conversation where she had told me that it had happened years before the date she said that it happened". It was "something of significance" to her, but although she spoke to her auntie about it, she did not speak to the appellant at any time and, initially, did not speak to her mother.
In contrast to the answers in which she acknowledged that the conversation was significant in her arriving at a view that the complainant was not telling the truth, when asked about not speaking to her mother and the appellant concerning this important information, the youngest sister resorted to saying that she was "quite young" and did not "think much of it". She said "it wasn't like quite big in my eyes" and she only "touched base" with her mother about it.
Initially, the youngest sister said in evidence that she did not tell her mother "the whole thing" until about a month or two before giving evidence in the Court of Criminal Appeal when they were talking about her views with respect to the matter. Asked specifically whether she only touched base with her mother about it a couple of months ago, the youngest sister responded in the positive. Asked directly whether she mentioned it to her mother when she moved back in late 2014, the youngest sister said "No, I didn't".
Later in her evidence, the youngest sister agreed she spoke with her mother and the appellant about her willingness to give evidence. Asked whether she discussed "this really important piece of evidence" with the appellant, the complainant responded "No. I discussed it with Mum but not [the appellant]." Under further cross-examination, and contrary to her earlier answers, the youngest sister said she spoke to her mother about this information before the jury trial.
In the context of questions concerning discussing, with her mother and the appellant, the possibility of giving evidence, the youngest sister was questioned as to whether she was asked what evidence she could give. It was in this context that the youngest sister volunteered the first reference to speaking to the appellant's lawyer and not telling him about the conversation with the complainant:

[398]

Asked about telling the lawyer her views as to why the complainant might not be telling the truth, the youngest sister said she spoke about the younger sister's story changing and that nothing about what she had been saying seemed to be adding up. She agreed she thought it was important to tell the lawyer why she did not believe the complainant, but she did not tell him about the complainant coming into her room and showing her what had occurred.
The failure of the youngest sister to tell the lawyer about the December 2012 conversation does not sit well with her evidence that the lawyer told her the complainant did not know a specific date when the rape had occurred and asked the youngest sister whether there was any conversation between her and the complainant concerning the date. According to the youngest sister she told the lawyer there was no such conversation. The lawyer asked whether the younger sister knew the date and she told him that she did not know the date.
Significantly, according to the evidence of the youngest sister, the conversation with the lawyer was not a conversation in which the youngest sister was simply responding to questions asked by the lawyer. In addition to asking questions, the lawyer "also asked if I needed to - if I felt like I had anything that I thought was relevant and that could help".
Against the background of all of the evidence given by the youngest sister, including the lawyer asking if she had anything she felt was relevant and could help the appellant, the Court asked a number of questions, during which the youngest sister agreed that when she was speaking with the lawyer, she was trying to help the appellant. She thought the appellant was innocent. One of the important things on her mind was the conversation on the complainant's 18th birthday in December 2012. Asked to explain why she did not tell the lawyer about that matter, the youngest sister said she was emotional and did not get everything out. She said there were quite a lot of things that made her believe that the complainant was not telling the truth and, being emotional, "I probably didn't remember at the time".
When giving evidence, the youngest sister was obviously alert to the issue of her not telling the lawyer about the conversation in December 2012. Her evidence in this regard was less than impressive. First, her evidence changed as to when she told her mother about the conversation. Secondly, her explanation for not discussing the matter with the lawyer changed from intentionally keeping it to herself because she felt the lawyer was not really listening to her, to being emotional and probably forgetting. Both of those claims lack credibility. The youngest sister was aware of the importance of the conversation and was asked by the lawyer whether she had anything that might assist. They specifically discussed the date on which the events occurred. As much as she gave the appearance of plausibility, the evidence of the youngest sister did not stand careful scrutiny and was, particularly in respect of failing to tell the lawyer about the December conversation, exposed as lacking credibility.

[428]

It is common ground that the appellant's trial counsel was in possession of the statutory declaration of 26 November 2014. In addition, on 23 October 2015 the complainant's mother gave evidence at a preliminary hearing in the presence of the appellant. Counsel for the appellant cross-examined the complainant's mother concerning the contents of the statutory declaration and other matters. In summary, the following topics were canvassed during that cross-examination:
- The husband and father of the children was a very controlling and difficult man.
- The complainant and her younger sister had asked if they could move to Queensland to live with their father. They hassled about it.
- The complainant tried to persuade her mother to move with the appellant to Queensland. This occurred after the complainant's mother returned from the Philippines.
- The complainant told her mother that she should have children with the appellant.
- After the complainant made the allegation against the appellant, the complainant's mother "kept replaying" to herself conversations and trying to see if there were changes to indicate something was wrong, but she could not see anything. The relationship between the complainant and the appellant appeared to be the same after the complainant's mother returned from the Philippines, but after the complainant made the allegation "it went ballistic" and it appeared that the complainant could not handle seeing or being with the appellant. Prior to the allegation being made, the interactions appeared to be normal.
- Prior to the complainant's mother travelling to the Philippines, she had asked the complainant to move out because of her behaviour.
- The younger sister had a problem with accepting the appellant, but towards the end she appeared to warm to him. There was nothing in the interactions between the appellant and the younger sister that troubled the complainant's mother and she did not ever get a sense that the complainant's younger sister felt uncomfortable around the appellant. Nor did she get any sense that the complainant felt uncomfortable around the appellant.
- On the day the allegations were made, there was an argument concerning hair extensions for the younger sister.
- The complainant often asked the appellant for money, both before and after the mother's trip to the Philippines.
- Details of the conversations that occurred when the allegations were made were elicited.
- November 2014 was the first and only occasion when the complainant's mother was spoken to by police.
It is apparent from the 2014 statutory declaration, and from the evidence given at the preliminary hearing, that counsel for the appellant at trial was well aware of the evidence that the complainant's mother might have been able to give at trial. The only information found in the affidavit of 3 July 2018 that was not canvassed in the statutory declaration of 2014, or in evidence in 2015, is found in pars 28-30 of the affidavit of 3 July 2018 concerning the habit of the appellant in complimenting people on their appearance, both male and female. However, counsel was obviously well aware of this issue as, at trial, he cross-examined the complainant's brother about the appellant's conduct in complimenting people, and the appellant gave evidence about it.

[435]

First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (at 512) per Barwick CJ).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301; [1989] HCA 35; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (at 518-519) per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 398-399; [1986] HCA 26; 20 A Crim R 244 at 248-249).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
- Is the evidence fresh?
- If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (at 395; 246) per Gibbs CJ), or 'plausible' (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301; [1989] HCA 35; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)?
- If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517))."

[440]

As to the proposed evidence of the complainant's mother, it is not "fresh evidence" because it was known to the appellant and his counsel. The evidence was available to be called and a deliberate decision was made not to call it.
Most of the proposed evidence was not "new". Much of the material to which the complainant's mother would depose was placed before the jury through other witnesses. Most of the evidence was of peripheral relevance. A continuation of an apparently "normal" relationship after the events in question was elicited through other witnesses and, in any event, the complainant's mother was absent for much of that period. The absence of the complainant's mother as a witness did not cause a miscarriage of justice.
As to the evidence of the complainant's youngest sister, the first question to be addressed is whether the evidence of the December 2012 complaint is "fresh" or only "new" in the sense that it was not led at trial. According to the youngest sister, it was evidence known to her mother, the appellant's partner, shortly prior to the trial. However, the mother was not asked during her evidence whether she was told about the December 2012 conversation prior to the trial and, if she was, whether she conveyed the information to the appellant.
Prior to the trial, and throughout the trial, the appellant was on bail. The relationship between the appellant and the mother was on-going and she supported the appellant. In my view, if the youngest sister had conveyed the information to her mother shortly before the trial, it is highly unlikely that the mother would not have told the appellant about the December 2012 complaint. It is also highly unlikely that she would not have mentioned this information to the appellant's lawyer.
The youngest sister gave evidence that she did not tell the appellant about her conversation with the complainant. If the conversation occurred, in my opinion it is also highly unlikely that the youngest sister would not have mentioned it to the appellant.
The appellant was not called to give evidence before this Court.
The youngest sister said that she did not tell the appellant's lawyer (who was trial counsel) about the conversation with the complainant. Neither party sought to call the appellant's lawyer to give evidence to this Court. As I have said, in my opinion the explanation given by the youngest sister for not telling the appellant's lawyer about the December 2012 complaint lacks credibility. I reject it. In my view, the falsity of the explanation suggests that either the December 2012 conversation did not occur or, if it did, the appellant's lawyer became aware of it and made a tactical decision not to cross examine the complainant about it.
The difficulty confronting this Court in reaching a conclusion in this respect is the absence of evidence from anyone other than the youngest sister. If the complainant had given evidence, she might have agreed that the conversation took place and said that it related to a prior act of intercourse about which she had not complained to the police. Alternatively, the complainant might have denied that the conversation occurred.
As to the absence of evidence from the appellant and his trial counsel, while it would have been simple for the appellant to give evidence that he was not aware of the December 2012 complaint, there might be other reasons why the appellant and his legal advisors would be reluctant for the appellant to give evidence before this Court. However, considerations that affect whether an appellant wishes to expose himself to cross-examination before this Court do not exist with respect to the appellant's trial counsel. If counsel was not aware at trial of the December 2012 complaint, bearing in mind the importance to the appellant of this issue, there is no obvious reason why counsel should not have been called to give evidence to this Court.
As is plain from these reasons, in my opinion the evidence before this Court is in an unsatisfactory state. In my view, the evidence of the youngest sister as to why she did not mention the December 2012 complaint to the appellant's trial counsel is not capable of belief. As the evidence stands, I am extremely doubtful that the December 2012 complaint described by the youngest sister occurred. However, in the absence of evidence from the complainant, I cannot exclude the possibility that such a conversation took place. If it occurred, for the reasons discussed, in my opinion it is highly unlikely that the appellant and his trial counsel would not have become aware of it at or before the trial.
Regardless of whether the evidence is "new" or "fresh", in my opinion the appellant has failed to establish that there has been a miscarriage of justice. At best from the point of view of the appellant, assuming the evidence is "fresh", and assuming acceptance of the evidence of the complainant's youngest sister, that evidence would have established that in December 2012 the complainant complained that, years before December 2012, the appellant sexually assaulted her by "spooning her and having sexual intercourse with her". It would have been a complaint of a completely different sexual assault from the sexual assault about which the complainant complained to three persons in 2013 and about which she gave evidence before the jury. It would have been a complaint of a prior uncharged act.
As to the potential impact of evidence of a complaint of a prior uncharged act, speculation is inevitably involved. If the complainant had been cross-examined to suggest that a complaint had been made to her youngest sister in December 2012 of a sexual assault that occurred "years before", she might have denied that such a conversation occurred. If the youngest sister subsequently gave evidence, the jury would have been faced with a conflict and it is impossible for this Court to safely predict how the jury would have resolved that conflict. On the other hand, the complainant might have agreed that such a conversation took place and explained that it was a complaint of a prior sexual assault about which she had not spoken to anyone other than her youngest sister. In that latter situation, in my opinion it is highly unlikely that the evidence would have had an adverse impact upon the jury view of the complainant. Of course, it is likely that trial counsel would not have called the youngest sister because of a wish to studiously avoid any suggestion in front of the jury that the complainant had complained about a prior sexual assault committed by the appellant upon the complainant.
As the evidence stands, the appellant has failed to persuade me that a miscarriage of justice has occurred. In my opinion the appellant has not demonstrated that if the youngest sister had given evidence, it is likely that the jury, acting reasonably, would have entertained a reasonable doubt about the guilt of the appellant. Put another way, the evidence of the youngest sister has not raised a significant possibility that the jury, acting reasonably, would have acquitted the appellant. The absence of the evidence of the youngest sister did not result in a miscarriage of justice.
For these reasons, in my view the appeal against conviction should be dismissed.

[471]

Some of these features require additional attention.
First, the appellant's conduct involved a particularly serious breach of trust. As the trial judge found, the appellant had been a "supportive and engaged step-father". The complainant had come to look up to the appellant, as she said, "a lot", and he had become like a "father figure" to her. However, as the trial judge observed, while this part of the history spoke well of the appellant's character, it emphasised the "clear position of trust" that he occupied and "exacerbated" the impact of the crime on the complainant.
Not only was the appellant in a position of trust generally, he knew of the problems within the family and, in particular, of the vulnerability of the complainant. He was fully aware of her problem with alcohol and of her propensity to lose self-control and pass out. On the night in question, it was against the background of the appellant's conduct at the hotel in providing the complainant with alcohol at no charge that, when the appellant arrived home, he became aware of the complainant's state of severe intoxication.
In my view, the breach of trust was also exacerbated by the fact that the offending occurred in the family home. The security offered by the family home was shattered. In the case of the complainant in particular, the family home had become a place of safety when she became inebriated, and a place where her younger sister looked after her. The appellant took advantage of the situation and turned the safety of the home environment into a place of trauma and humiliation for the complainant (and trauma and guilt for her younger sister).
The effects of the appellant's crime also require careful consideration. While treating the victim impact statement of the complainant "with the usual level of circumspection, particularly given the pre-existing family difficulties", the trial judge recognised that the impact of the crime had been "significant" and was "likely to continue into the long-term future". His Honour observed that the experience was "particularly degrading" for the complainant and exacerbated by the fact that the crime took place when the complainant's younger sister was in the house. In addition, his Honour referred to the adverse impact on the complainant's younger sister and to her understandable, but misplaced, sense of guilt because she did not intervene.
In order to fully appreciate the impacts of the appellant's criminal conduct, and the appellant's role in exacerbating those impacts, it is necessary to have regard to matters additional to those mentioned by the trial judge.
First, within a short period of the events, the complainant told her younger sister that something had happened to her, but she would not say any more and did not mention anyone who was involved. Soon after, on another night when the complainant had been out drinking, the complainant arrived home crying. The appellant arrived home at the same time. The complainant asked to talk to her sister and they went into her room, but the appellant told the complainant's sister "not to talk to her" and that "she was drunk". The appellant said "don't listen to anything that she says". The complainant told the appellant to get out of her room, but he kept asking the complainant's sister what the complainant was saying. Eventually the appellant left the room and the complainant spoke about what happened.
During the conversation, the complainant provided an indication of her concern about how her mother would react. When her sister said they had to tell their mother, the complainant responded that she did not want to tell her mother because her mother was in the Philippines and she was scared that her mother would not come home, or that her mother would hate her. It was agreed they would tell their mother when she returned home.
The complainant's fear concerning the like reaction of her mother was well founded. Her disclosure to her mother caused her mother to become distressed and this was followed by the family confrontation. Not only did the appellant deny sexually assaulting the complainant, he called her "delusional" and told her that she was the reason for her mother's unhappiness. As the complainant's sister recalled the confrontation, the appellant referred to her and the complainant as "crazy".
The false position taken by the appellant, and the accusations he levelled against the complainant and her sister, exacerbated the effects of his criminal conduct. The appellant's criminal conduct, coupled with his false denials, has destroyed the family unit and left the complainant in a damaged psychological state which remained on-going for at least 3½ years after the offending. There is no suggestion that the complainant has since recovered to any significant degree.
The complainant's younger sister gave evidence that probably a day after the confrontation, her mother "said she was sorry but she was going to stay with [the appellant]." The complainant's sister called their father who came to Tasmania and accompanied the complainant and her sister to the Tasmania Police. The complainant and her sister then moved to Queensland.
The victim impact statement provided by the complainant is particularly telling as to the impact of the appellant's crime. It is dated September 2017 and discloses that since November 2013 the complainant has been suffering from depression and anxiety for which she has been taking medication. She has attended counselling. She has experienced suicidal thoughts, and on three occasions has been hospitalised for attempted suicide. In her words, she could not control her thoughts and feelings and "just felt really sad, down and hopeless and struggle without having my family". The complainant suffers nightmares in which she sees the appellant's face. She has gained significant weight, feels worthless and is disgusted in herself.
Although there had been difficulties within the family, and the complainant had lived away from home for a few months, those difficulties do not detract from the significance of the destruction of the family unit and the complainant's mental state, including her feelings of guilt. In her victim impact statement the complainant described the issue of family as follows:

[479]

As to matters personal to the appellant, the remarks of the sentencing judge identify the great hardship that the appellant experienced as a child and the "strong and positive character" that the appellant exhibited in dealing with those experiences and in embracing the opportunity to reside in Australia. To some extent, however, the appellant's record of prior offending militates against that "strong and positive character". It is correct that his only prior offence hinting at violence was a common assault committed in 2009, but the appellant has a very poor record of driving offences and, from 2008 to August 2009, on numerous occasions he made false statements in connection with social security matters.
In connection with matters of mitigation, emphasis was placed upon the fact that upon release from prison the appellant will probably be deported. No doubt that possibility has been a cause of anxiety for the appellant and will continue to be such a cause throughout his period of imprisonment. If deportation occurs, that fact could reasonably be viewed as a form of additional punishment, but in the absence of evidence it is impossible to predict with any degree of certainty whether deportation will occur. In this context it should not be overlooked that as the evidence presently stands, the appellant is likely to have strong family support if he mounts a case to stay in Australia. Further, even if deportation is regarded as probable, given the nature and seriousness of the offending and the importance of other factors such as deterrence, punishment, retribution and denunciation, limited weight in mitigation can be given to the probability of such additional punishment in the form of deportation.
Although not raised by counsel for the appellant, during submissions on the appeal the question arose as to whether the fact that the appellant is subject to a reporting order under the Community Protection (Offender Reporting) Act is, in itself, a punishment to be taken into account in determining sentence. The period of the order is eight years.
This issue was helpfully discussed by Pearce J in Mulholland v State of Tasmania [2017] TASCCA 2. The appellant had been found guilty of rape and sentenced to imprisonment for three and a half years with eligibility for parole after serving half of that sentence. The sentencing judge ordered that the appellant's name be placed on the register and that he comply with the requirements of the legislation for a period of three years following release. The appellant's appeal against the severity of the sentence was dismissed.
In the course of his judgment, with which Tennent and Brett JJ agreed, Pearce J discussed the nature of the order and the authorities from which the relevant principles can be discerned:

At a glance

Court

Decision date

Before

Source

Judgment (502 paragraphs)

M A C v Tasmania [2018] TASCCA 19 (15 November 2018)

Parties

Cases Cited (14)