Court of Appeal (Vic)|2013-12-17|Before: Redlich JA, Maxwell P, Neave JA

Martin v The Queen [2013] VSCA 377 (17 December 2013)

DPP v Martin (Unreported, County Court of Victoria, Judge Lacava, 13 July 2012)

CRIMINAL LAW - Appeal - Conviction - Six charges of incest of child between ages of four and six years - Evidence - VARE procedure - Division 5 of Part 8.2 Criminal Procedure Act 2009 - Leading questions - Role of interview process in investigation - Need to substantiate allegations and exhaust memory - Whether allegations voluntary or prompted - Whether procedure contaminated - Offender unable to object to procedure - Overriding duty of trial judge to ensure fair trial - Whether answers should be excluded at trial - Power to exclude - , and - Whether complainant understood meaning of truth - Inconsistent verdicts - Inappropriate particular of ground that verdicts unsafe - Whether verdicts unsafe - Reliability of child complainant ; , ; ; ; ; ; ; considered.

1 I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA. For the reasons given by his Honour, I too would refuse both applications.

2 I agree with Redlich JA, for the reasons that he gives, that leave to appeal against both conviction and sentence should be refused. I wish only to add the following.

3 Section 367 of the Criminal Procedure Act 2009 (Vic) permits a child or cognitively impaired witness to give their evidence in chief in the form of a VARE.[1] This provision enables a complaint to be recorded shortly after it is made and gives a jury the opportunity to observe both the way the child described the offending and the conduct of the interviewing officer. This may result in the jury having a more accurate perception of the nature of the complaint. It will also enable the jury to better ascertain whether the details of the offending were properly obtained by the investigating officer than a transcript of the interview.

4 It is entirely unrealistic to regard young children as capable of providing a coherent chronological narrative of separate incidents of alleged abuse which may have occurred over a significant period of time. At first, a child complainant may not fully describe all the separate acts of abuse which have occurred. For that reason, and because it may be apparent to an interviewing police officer that a child has not understood the meaning of a question when it is first asked,[2] it will often be

necessary to clarify the nature of the initial complaint, by questioning the child further. While it is important that investigators do not ask questions which suggest the answer which the child should give,[3] clarification of this kind does not breach the prohibition against leading questions.

5 Redlich JA has held that there was no impropriety in the questioning of the child complainant in this case. I agree with that view.

6 On 1 May 2012, after a trial in the County Court, the applicant was convicted of six charges of incest. He was acquitted of one charge of incest (charge 1). He was sentenced to a total effective sentence of five years, with a non-parole period of three years and four months. He now seeks leave to appeal against his conviction and sentence.

7 The applicant seeks leave to appeal against conviction on the following grounds:

1. The verdicts of the jury were unsafe or unsatisfactory.

The trial judge misdirected the jury in answering the jury's question delivered on 1 May 2012. In particular, his Honour:

(a) failed to give a warning pursuant to s 165A of the Evidence Act 2008;

(b) failed to adequately address the standard of proof required;

(c) failed to refer to the lack of supporting evidence; and

(d) failed to give a Liberato direction.

The trial judge erred in failing to give the jury a warning pursuant to s 165A of the Evidence Act.
The accused was deprived of the right to a fair trial through the incompetence of counsel. In particular, counsel:

(a) failed to request a s 165A warning;

(b) failed to request a redirection regarding the standard of proof in answer to the jury's question; and

(c) failed to request a redirection regarding the lack of supporting evidence in answer to the jury's question.

8 On 26 February 2013, Weinberg JA referred grounds 1 and 2(b) of the application for leave to appeal against conviction and the application for leave to appeal against sentence to a bench of three. His Honour refused leave to appeal against conviction on grounds 2(a), (c) and (d), 3 and 4. The applicant has elected to renew his application for leave to appeal on those grounds where leave was refused.

9 The applicant was in a de facto relationship with the mother of the complainant and they lived together. The complainant was aged four at the beginning of the offending period. What follows is a summary of the Crown case.

10 On an occasion between 29 August 2009 and 25 December 2010, the complainant was alone in the house with the applicant while his sister and mother were out shopping. The applicant pulled down the complainant's pants and sucked his penis (charge 2). The complainant asked him to stop. The applicant made the complainant urinate on a 'Spiderman' towel, then they played a video game together.

11 On another occasion after 25 December 2010, the applicant was again home alone with the complainant watching a movie. The applicant pulled down the complainant's pants and sucked his penis (charge 3). The complainant gave evidence that he could feel hair from the applicant's chin touching his penis.

12 The offences constituting the next four charges occurred on separate dates between 1 January 2011 and 3 June 2011. On one occasion, the applicant pushed the complainant in a pram to a nearby shopping centre. He took the complainant into a public toilet cubicle and locked the door. The applicant pulled down the complainant's pants and touched his penis and testicles before sucking his penis (charge 4). The complainant urinated into the applicant's mouth. The applicant put his penis in the complainant's mouth (charge 5). The complainant asked him to stop and he did. The applicant told the complainant that he was not to tell his mother because it was a secret.

13 On another occasion, the applicant was at home with the complainant and his sister while the rest of the family were out shopping. While the complainant's sister was in her bedroom, the applicant entered the lounge room, pulled down the complainant's pants and sucked his penis (charge 6). The complainant told the applicant to 'get off my doodle now'. The applicant stopped.

14 The conduct constituting charge 7 occurred after the complainant came home early from school because he felt unwell. The applicant called the complainant into the kitchen and said 'Don't tell anybody'. The applicant pulled down the complainant's pants and sucked his penis. The complainant urinated in his mouth. He told the applicant, 'No more wee now' and stopped.

15 On 3 June 2011, the complainant was staying with his uncle. While his uncle, BS, and a friend, MK, were working in the shed, the complainant walked in and said 'Sometimes my stepdad sucks my doodle'. The next day the complainant's uncle asked him in the presence of other family members to tell them what he had told him last night. The offences were subsequently disclosed to police. The complainant participated in a VARE on 5 and 6 June 2011. The applicant was arrested on 8 June 2011.

16 The test by which a court of criminal appeal must determine whether a jury verdict is unsafe and unsatisfactory - or, as that ground is expressed in the appeal statute, 'is unreasonable or cannot be supported having regard to the evidence'[4] - has been stated and restated many times since the High Court decided M v The Queen.[5] For example, in Libke v The Queen,[6] Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test as follows:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[7]

17 Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them. The verdict will only be interfered with on appeal if the applicant can demonstrate that no reasonable jury could properly have reached it upon the evidence before them. To adopt the words of Doyle CJ, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt'.[8]

18 The Crown relied solely on the evidence adduced from the complainant during the two VARE interviews and during the special hearing that took place on 19 April 2012. The applicant submits that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on any of the charges as a consequence of the process by which the complainant's evidence was obtained in the VARE interviews, the absence of any supporting evidence, the complainant's lack of credibility, the applicant's denials and the trial judge's inadequate directions to the jury.

19 The applicant in his written case provided 16 particulars of the unsafe and unsatisfactory ground, which are considered in turn below. The merit of each particular of complaint must be separately considered. Whether they have significance may also be assessed by considering them in combination judged against the evidence as a whole.[9]

The VARE procedure and the reliability of child witnesses

20 This and other recent cases considered by this Court have raised allegations concerning the propriety of the questioning in a VARE interview. The applicant has filed a very extensive written case alleging particular errors in the manner in which the VARE was conducted and has comprehensively amplified those complaints in oral argument. The applicant contends that the VARE procedure was 'contaminated' and so poses a solid obstacle to a guilty verdict. The way in which the complainant's evidence in chief was obtained during the VARE should have given rise, it is said, to a reasonable doubt as to the truthfulness and accuracy of the complainant's account. The primary criticism of the methodology of the police officer conducting the VARE was that the complainant's allegations against the applicant were only elicited through a series of leading questions. It was also said that the questioning was often vague, imprecise, or contained multiple propositions and that the interviewer used oppressive tactics on the child complainant, such as refusing to let him take a break when requested. Finally, it was submitted that these unsatisfactory questioning techniques should have been identified for the jury by the trial judge, who should have explained how they potentially affected the credibility of the complainant's account.

21 At trial, no application was made to exclude any of the complainant's evidence-in-chief which is now impugned, nor was the trial judge requested to give the directions the absence of which is now the subject of complaint. In oral argument it was even submitted that, as an application to exclude parts of the interview would have failed, no application had been made at trial.

22 The VARE procedure is governed by Division 5 of Part 8.2 of the Criminal Procedure Act 2009 ('the CPA'). Pursuant to ss 366 and 367 of the CPA, a witness under the age of 18 years in a proceeding which relates to a charge for a sexual offence may give evidence-in-chief in the form of an audio or audiovisual recording of the witness answering questions put to them by a police officer or other qualified person.[10]

23 Division 6 of Part 8.2 of the CPA allows the examination-in-chief, cross-examination and re-examination of complainants in proceedings related to a charge for a sexual offence to be made in the form of an audiovisual recording at a special hearing which does not take place in the presence of the jury.[11] Similarly, Division 7 provides that a recording of a child complainant's evidence is admissible as direct evidence.[12] A complainant who gives evidence under Divisions 6 and 7 may not be further cross-examined except with leave of the Court.[13]

24 The accused is not present or represented when the allegations of the complainant are elicited during the VARE. Consequently an accused's opportunity to object to answers obtained by improper means is confined to an application for exclusion of that evidence at the special hearing or trial.

25 Part 8.2 of the CPA is substantially the same as s 37B of the Evidence Act 1958,[14] which was introduced in the Evidence Act in 1991.[15] The Attorney-General described the procedures in the Second Reading Speech:

The second measure is to provide an option whereby a video or audio-recording of an interview of a child complainant may be admitted as evidence. The recording would serve as the child's evidence-in-chief, saving him or her from having to recount the allegations in detail and presenting the court with the freshest possible account of the alleged events. The third measure is an option which permits the court to modify the environment in which a child gives evidence. This can be done in a variety of ways, ranging from modifications to the courtroom itself, to permitting the child to testify from another room by closed-circuit television.[16]

26 The primary purpose of introducing these procedures enabling the admission of audiovisual recordings into evidence was 'the reduction of stress imposed upon victims of sexual offences by the rigours of curial proceedings'.[17] These procedures protect child witnesses from having to give evidence before a jury or in committal hearings, and so avoid what is recognised to be an extremely traumatic experience for children, particularly if exposed to what may be searching, aggressive or intimidating cross-examination.[18]

27 Some of the early decisions of this court in relation to these new procedures occurred before Australian Law Reform Commission ('ALRC') recommendations and ensuing legislation, which reflects the present view that there is little gap between the reliability of evidence given by adults and that of children.[19] The ALRC Report No 102 observed that 'research shows that the evidence of children is not inherently less reliable than that of adult'.[20] Child witnesses are not particularly susceptible to making false claims, but they are more likely than adults to recant or falsely deny allegations if they are under pressure or fear punishment. As explained in the ALRC Report, Seen and Heard, 'to avoid punishment, to keep promises not to tell or to avoid revealing embarrassing information, most children will deny knowing information about an event that they know occurred.'[21] The procedures under Part 8.2 of the CPA reflect those conclusions. They are designed in part to ensure the veracity of the evidence given by child witnesses.

28 The ALRC Report No 102 further observed that, despite the research, 'it has been found that the credibility of children's evidence is still often underestimated by juries and the community generally'.[22] It was in response to that ongoing scepticism of child witnesses that s 165A was inserted into the Uniform Evidence Act.[23]

(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following -

(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses;

(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults;

(c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child;

(d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.

(2) Subsection (1) does not prevent the judge, at the request of a party, from -

(a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable; and

(b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it -

if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.

(3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.

30 The statutory framework governing the admission of recorded evidence from child witnesses thus seeks to reinforce the principle that, while child witnesses require special consideration and protection from the traumas of criminal trials, they are not to be regarded as any less reliable or trustworthy than adult witnesses.

31 A trial judge has broad powers to exclude or edit the evidence from a VARE or VATE if it is inadmissible, unduly prejudicial or will produce an unfairness that cannot be addressed in the trial.

32 The CPA provides the trial judge with flexibility in respect of the admissibility of recorded evidence. In each setting in which recorded evidence may be admitted into evidence, the CPA makes provision for that evidence to be held inadmissible. In Divisions 5, 6 and 7 of Part 8.2, the trial judge has broad powers to exclude evidence under s 368(3), s 374(3) and s 381(2). For example, s 368(3) provides:

The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.[24]

33 In addition to the exclusionary powers within the CPA, the trial judge retains the power to exclude or limit the use of recorded evidence under the general discretionary right to control the admission of evidence and pursuant to powers under ss 135, 136 and 137 of the Evidence Act 2008.

34 A 'leading question' is defined in the Evidence Act 2008 as a question asked of a witness that:

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.[25]

35 The recorded evidence provisions allow for a witness' evidence in chief to be given out of court in the absence of a jury, a trial judge or the accused.[26] The interviewer must be mindful that the account given by the complainant in the VARE (or in a VATE) may become his or her evidence in chief. The Seen and Heard report emphasised that the manner and context in which a child is questioned may influence the reliability of a child's evidence. Misleading, or suggestive questioning techniques may affect the ability of a child to recall events accurately. It discouraged the use of leading cues. It remains of first importance to bear in mind the observation of Winneke P in R v Knigge,[27] that the VARE or VATE procedures have the capacity to 'distort the adversarial aspects of the criminal justice system' and impact upon the fair trial of an accused person. The trial judge has an overriding obligation to use his or her office to ensure that, within the judge's capability, the accused is not exposed to the risk of an unfair trial.[28]

36 When objections are raised to the manner in which information has been elicited from the complainant so as to cast doubt upon the reliability of the answers provided in a VARE or VATE, allowance must be made for the fact that the investigators are using the interview process to obtain information pertinent to the investigation. The interview will generally be the first recorded account made by investigators of the complainant's allegations.

37 Once a complainant's allegations have been voluntarily made, the investigator will usually need to identify and substantiate the allegations with more particularity.[29] Direct questioning that reminds a child of an allegation already made voluntarily does not constitute a leading question. In that context it is to be expected that the nature of the questioning will at some points take on a more direct approach, particularly in seeking to amplify allegations to which the child has already adverted. Thus in SLJ v The Queen,[30] further evidence of certain allegations was elicited at the prompting of the police interviewer during the VATE. No criticism could validly be made of those questions, where the allegations had already been voluntarily made by the complainant and the interviewer was seeking clarification of the nature and circumstances of the allegation.[31]

38 The applicant took issue with the broad open-ended questions asked during the VARE. On multiple occasions, the interviewer asked the complainant to think of any other times that the applicant had abused him.

39 A competent investigator will seek to ensure that the complainant has exhausted their memory as to the detail of an allegation and as to whether similar conduct has occurred on other occasions. The experience of the law is replete with examples of the credibility of a complainant being undermined because, at the time they gave their first account, they did not refer to other occasions on which they later say that similar or relevant conduct occurred. Some latitude as to the particularity of the prompt will often be necessary with a child witness in order to exhaust the child's recollections. The child may not otherwise understand to what the further questions are directed. So long as the initial allegation was not improperly elicited, later questions which remind the child of allegations previously made are unlikely to provide a foundation for its exclusion. They will not then fall within the above definition of leading questions.

40 The fact that the accused has been deprived of the opportunity to object to leading questions and challenge the 'evidence' as it is given, with the result that evidence has been obtained in circumstances which potentially impact upon its reliability, will not usually be determinative of whether the evidence should be excluded.[32] Whether leading or suggestive questions should in a particular case result in the exclusion of evidence will depend upon consideration of the circumstances in which the evidence was elicited, the extent of the accused's opportunity by cross-examination to test the reliability of the complainant (which the adversarial system of justice allows as a means of determining where the truth lies) [33] and the directions that the trial judge may give the jury.

41 In R v Knigge, evidence was elicited on the VARE by questions which were vague, repetitive and frequently leading. That did not lead to the conclusion that the evidence was inadmissible, but it did require a very clear warning, carrying with it the authority of the judicial office. The content of the warning there found to be necessary would need to be modified to take account of the prohibitions contained in s 165A of the Evidence Act.[34]

42 None of this is intended to suggest that a police interviewer has free rein or that, regardless of the method of questioning employed, the answers elicited must be accepted as having probative value. In Douglass v The Queen,[35] the High Court unanimously overturned a conviction by a judge alone which rested upon the complainant's statements in an interview, where the limited detail of the allegation was supplied in response to leading questions and only after initial denials. Those statements were the only evidence of the commission of the offence. The Court concluded that it had not been open to the trial judge to be satisfied of the reliability of the complainant's statements in the interview and to reason from that, despite the applicant's denials, to a conclusion that his guilt had been proved beyond reasonable doubt.[36]

43 Questions that contain suggestions of new allegations, or which seek to 'improve' upon the answers to an allegation, or which seek to establish an allegation already denied, are either likely to be excluded or to be given little probative value so requiring a careful direction to the jury. As Douglass demonstrates, where an allegation of fact is elicited in circumstances which cast real doubt upon its reliability, such evidence alone will not have the quality to support a conviction.

44 The statutory regime of the CPA, supplemented by the provisions of the Evidence Act, thus strikes a balance between protecting vulnerable witnesses and ensuring that the accused's right to a fair trial is preserved.

45 Turning then to the complaints here made as to the method of questioning employed, the applicant took the Court to what were asserted to be numerous examples of leading questions. It is not necessary to set out all of the questions with which the applicant takes issue, as the following two examples are representative. They reveal that the investigator was only seeking clarification of, or further detail as to, an allegation that had already been voluntarily described by the complainant.

46 The first example relates to the offending the subject of charge 4:

Q: Nothing bad that day. Did [the applicant] suck your doodle that day in the toilet at the supermarket?

A: Yep.

47 Having viewed the VARE it became apparent that the further questions concerning the incident in the supermarket toilet followed earlier answers by the complainant:

Q: Do you remember any other times that this has happened?

A: When I went to the supermarket and I went into the toilet it happened.

Q: So in the supermarket at the toilet. Can you tell me about that day in as much detail as you can. Tell me about that day.

A: [The applicant] makes me suck his doodle. Well, I don't like sucking his doodle.

48 The complainant's first account of this incident was clear and entirely voluntary. He later provided a more detailed account of the incident. He remembered that the applicant pushed him in a pram to the shopping centre and a lady at the bus stop gave him a doughnut. He was asked if the applicant had, on any occasion other than at the shopping centre toilet, put his penis in the complainant's mouth. He said no. He was asked to close his eyes and recall how many times this had occurred. He said one.

49 The second example relates to charge 6 and the complainant's account of the incident in his sister's bedroom. This exchange occurred on the second day of the VARE:

Q: Yesterday you told me that you were in the bedroom with [your sister] and that [the applicant] sucked your doodle that day. Did that happen that day?

A: Yep.

...

Q: You told me yesterday that on that day [the applicant] had sucked your doodle on that day. Is that right?

A: Yep.

50 Again a review of the VARE shows that this inquiry arose from a previous allegation made voluntarily by the complainant.

Q: Ok. So you told me about, that [the applicant] does this when there's nobody else in the house. What rooms of the house does this happen in?

A: My sister's room.

...

Q: So you've said that it's happened in your sister's room. Can you tell me about that day? Do you remember that day that it happened in your sister's room?

A: He only, he only did [inaudible] in my sister's room and only...

Q: He did towels in your sister's room?

A: And in my mum's room, sometimes he drank my wee, sometimes he, he did it, sometimes he did it, sucking my doodle. That's all.

...

Q: The time in your sister's room, you said he used the towel. Can you tell me about that day? So who was in the bedroom first?

A: My sister. Then she had to go somewhere. And then all over me and [the applicant].

Q: Ok. And tell me what happened. It was you and [the applicant] in the room. What happened next?

A: [The applicant] sucked my doodle and then, after that, [the applicant] was, wanted me to play Grand Theft Auto.

51 In order to assess the merit of this ground it was necessary to consider the VARE in its entirety. The complainant, as is to be expected of a five year-old, was prone to often give answers that were quite unclear. He was often distracted and failed to respond directly to the questions. Many of the purportedly 'leading' questions were attempts by the interviewer to refocus the complainant's attention. In each of the examples cited by the applicant, the interviewer asked the complainant to elaborate on an allegation he had already made voluntarily.

52 The VAREs are conducted by authorised officers[37] according to internal police guidelines which are not publicly available. However, there is nothing in these VAREs to suggest that the evidence adduced from the complainant was obtained in an improper manner, such that its exclusion might have needed to be considered. The complainant was encouraged to begin by way of a free narrative, and then was asked direct questions in order to isolate specific incidents or issues.[38] None of the questions were leading in the sense of introducing to the complainant facts about which the witness had not already given evidence. Any information raised by the interviewer in her question had already been asserted by the child. The police interviewer maintained an appropriate line of questioning without being unnecessarily or improperly suggestive. The interviewer was entitled to ask open questions that were intended to exhaust the complainant's memory. There is no substance in the contention that any of the allegations made by the complainant were the result of improper leading and suggestive questions.

53 I am not persuaded that there was anything unfair or prejudicial in the questioning during the VARES that would have warranted exclusion of any of its parts or which engenders a doubt about the veracity of the complainant's account. Evidently trial counsel was of the same mind, as no application was made to exclude any part of the VARE and no such argument was advanced during the trial.

54 I turn then to the other particulars of complaint about the VARE interviews.

Refusal to take a break during the interview when requested

55 At one stage early on the second day, the complainant asked for a break, but the interviewer suggested that they keep going. When the interviewer took a break soon after, she asked the complainant to think during the break about whether there were any other times that the applicant had sucked his doodle. On resumption he was then asked further questions about the offences. He then referred to the incident which is the subject of charge 6. The applicant contends that the failure to allow the complainant to take a break, combined with the open questions, may have led to a danger that the complainant believed he would not be allowed to finish unless he made further allegations against the applicant.

56 I reject the contention that the refusal to give the complainant a break put the complainant under undue stress. The interview on the second day went for a total of 34 minutes. Roughly 15 minutes into the interview, the complainant asked for a break to play with his sister. The interviewer asked him if they could continue for just a few more minutes because they had not been going very long. The complainant agreed. In the context of the half-hour interview, I do not find there to be anything oppressive about the interviewer's approach or that anything said by the complainant after the interview resumed was the product of pressure.

Concerns as to the complainant's understanding of the meaning of truth

57 During the VARE, the complainant had some initial difficulty responding to the interviewer's question as to whether the complainant understood the difference between the truth and a lie. The complainant, who was wearing boots during the VARE, was asked whether, if someone said he was wearing thongs, that would be true or a lie. The complainant said that it would be true. The applicant contends that this demonstrates that the complainant had difficulty understanding the concept of truth.

58 Further consideration of the VARE reveals the complainant's understanding of the difference between the truth and a lie.

Q: So what are you wearing on your feet?

A: Boots.

Q: So if, someone said, they're thongs...

A: Mm...

Q: Have they told me the truth or have they told something that's not the truth?

A: Something that's not the truth.

Q: So what is the truth?

A: The boots.

Q: The boots. And what would be a lie?

A: The thongs.

59 There is no merit in this particular aspect of the applicant's ground of appeal. A complaint as to the same form of question arose in R v DP,[39] in which the complainant, aged three years and 10 months, was asked whether it would be the truth or a lie to say that she came to the police station in an aeroplane. She responded, 'My mummy brought me here in a car'. She was asked, 'So if I said that you came here in an aeroplane, would that be the truth or would it be a lie?' She said she did not know. Vincent JA (with whom Kellam JA and Whelan AJA, as he then was, agreed) held that, given the complainant's age, the confusion was not surprising, and that it would be 'quite unreasonable to regard her response as indicative of uncertainty in her mind as to the truth'.[40]

60 As was the case in DP, the complainant was initially and understandably confused by the question, but his subsequent answers established that he could clearly distinguish between the truth and a lie. The complainant also understood that it would be a lie to say he arrived at the police station in a helicopter. He said that 'the truth is that I came in a car'. The trial judge ruled that the complainant had the capacity to give truthful evidence and was a competent person to give sworn evidence. His Honour was plainly correct.

Complainant under pressure when making complaint

61 When the complainant first made the allegation in the shed to his uncle and MK, MK told the complainant that if he had been lying about the allegation he would get into trouble. The next day the complainant was asked to repeat what he had said in front of his family. According to his uncle, the complainant 'nearly started crying, his eyes welled up and he said "I don't want to"'. After being encouraged by his uncle and his father, he repeated the allegation. His family asked him questions about the alleged incidents for about 10 minutes. His aunt then took him into another room and questioned him alone. She said that if he was lying, no-one in the family would talk to him. He started crying and said that the allegations were true.

62 The applicant contends that the complainant may have been overwhelmed into making a false allegation as a consequence of the pressure put on him to repeat the allegation and the threats that he would be ostracised from his family.

63 It was quintessentially a question for the jury whether what occurred with the complainant's family adversely affected the credibility and reliability of the complainant. His initial allegation to his uncle was not made under pressure - it was an allegation made voluntarily without any prompting or suggestion. He was pressed by his uncle and his father the following day to 'tell them what you told me in the shed last night, mate', and was threatened that there would be consequences if he was lying. That does not advance the suggestion that he was led into making a false complaint. As the respondent contends, the pressure put on the complainant to tell the truth more likely demonstrates the complainant's consistency of conduct and adherence to the truth in the face of such pressure.

The complainant was vulnerable to 'suggestibility'

64 The applicant also submits that the complainant was a highly suggestible witness whose evidence was subject to 'improvement' by his family and the police. The complainant's evidence in the VARE was that charge 7 had occurred a few months before the VARE. In the special hearing, he gave evidence that it happened just a few days before the VARE, because someone at home had told him on what day he had come home early from school.

65 On the second day of the VARE, the complainant said that 'telling the truth means that if you're wearing something what's right, like I'm wearing boots', demonstrating that he had adopted the suggestion from the first day of the VARE that his wearing boots was an example of truthfulness. In the applicant's submission, this exchange showed that the complainant was a highly suggestible witness and was aware of the answers that the police wanted and provided them.

66 The complainant showed resilience rather than suggestibility when giving evidence. Throughout the VAREs the complainant rejected or corrected propositions that were put to him by the interviewer. The so-called 'improvements' in the complainant's evidence amounted to nothing more than the complainant clarifying the date on which charge 7 had occurred - it did not amount to evidence from which one could infer that his evidence had been concocted or manipulated by a family member.

67 The jury found the applicant not guilty on charge 1. Charge 1 related to an incident alleged to have occurred in the bathroom while the rest of the family was out. The applicant submits that the jury's failure to accept the complainant's allegation on charge 1 damaged his credibility in respect of all counts.

68 First, a contention that verdicts are inconsistent should not be raised as a particular of a ground that the verdict is unsafe and unsatisfactory. Where the real complaint is that the verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground.[41] If a claim of inconsistent verdicts cannot be sustained, the verdict of acquittal will not ordinarily advance the argument that the guilty verdict was unsafe or unsatisfactory.

69 Treating this as a discrete ground the applicant has not shown that there is any apparent inconsistency between the applicant's acquittal on charge 1 and the guilty verdicts on the remaining charges. It does not follow that, because the jury had a reasonable doubt as to the evidence the subject of charge 1, it must necessarily have had a doubt about the evidence of the complainant on the other counts. Credit is not a 'homogenous and indivisible whole'. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen, a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant.[42] Such verdicts might be attributed to an absence of supporting evidence or detail in the account, some level of uncertainty, a faulty recollection, or a contrast in different parts of the account that suggests part of it is more reliable than others. When the jury returns different verdicts on multiple counts, the test of whether the verdicts are truly inconsistent is one of logic and reasonableness.

70 This is not a case in which the difference in the verdicts is 'an affront to logic and commonsense'. The complainant's evidence was of a different quality in respect to charge 1, compared to his evidence on the remaining charges. He was unable to give particulars in respect of charge 1. To many questions relating to the incident, he said, 'I can't remember'. When asked, 'Did anything bad happen that day?', he responded, 'I met a fireman'. When asked, 'Did [the applicant] suck your doodle that day?', he responded, 'No'. The jury were evidently not satisfied having regard to the complainant's uncertainty that charge 1 had been made out. That did not necessarily impinge on his credit generally.

71 During the trial, the defence made a successful application pursuant to s 342 of the CPA to admit evidence given by the complainant during the special hearing that he had engaged in sexual activity with his cousin. He initially denied having had sexual contact with his cousin, but later admitted it to his aunt. He said that he had sucked his cousin's penis, but he did not do it any more. The applicant submits that this evidence explains how the complainant became sexually conscious at such a young age and may have led to a conflation of the events between him and his cousin with his allegations against the applicant.

72 The significance of the complainant's prior sexual conduct with his cousin was plainly a matter for the jury. While this evidence was used by the defence as an explanation for the details given by the complainant in respect of the allegations against the applicant, the complainant's early sexualised behaviour with his cousin was not inconsistent with him having been sexually abused by the applicant. If, as appears to be the case, the applicant's alleged conduct started before the complainant's conduct with his cousin, it was an argument that could have disadvantaged rather than assisted the applicant's case. Moreover, the complainant's recantation of previous denials of sexual encounters with his cousin demonstrated that he was capable of admitting that he had lied. The complainant's evidence of his relationship with his cousin did not require the jury to entertain a doubt about the complainant's account of the applicant's conduct.

73 The applicant also identified a number of inconsistencies between the complainant's evidence and the evidence given by other witnesses. The applicant contended that, according to the evidence given by his uncle, the complainant told his family that charge 7 had occurred when the applicant picked him up early from school because he was sick. They had walked through a paddock on the way home and the applicant had abused him while they were under a power line. Under cross-examination, the complainant gave a different account. He said that he was walking to school with the applicant when this incident occurred.

74 The alleged incident that occurred in the paddock was not charge 7 but an uncharged act. The complainant confirmed during cross-examination that he had been abused by the applicant in a paddock. He said that on a separate occasion the applicant had abused him in the kitchen after he had come home early from school. That was charge 7. There was obviously some confusion between the accounts respectively given by the complainant and his uncle. It may be that the complainant's uncle conflated the complainant's account of the uncharged act with his account of charge 7. This inconsistency, if indeed it was one, was not one that so infected the credibility of the complainant as to necessarily engender a doubt about the complainant's general credibility.

75 A further inconsistency was raised in respect of charges 4 and 5. The complainant said that it was raining when he went to the shopping centre with the applicant. His mother's evidence was that it could not have been raining on the day the applicant took the complainant to the supermarket, because the pram offered no protection from the rain and he would have been drenched.

76 The alleged inconsistencies in the complainant's evidence adverted to by the applicant in respect of charges 4 and 5 were unsubstantial. His VARE evidence was largely consistent with the evidence he gave during the special hearing. During the special hearing, defence counsel broached the subject of whether it was raining when charges 4 and 5 occurred and suggested that his mother would not have let him out in the rain. The complainant said that he did not get wet because he was in the pram. The inconsistency amounted to whether or not the complainant's mother would have let him out in the rain. Whether or not there was an inconsistency, the issue was ventilated before the jury. It was hardly an issue which compelled the jury to entertain a doubt as to the complainant's detailed account on these charges.

77 The applicant cited other factors in his favour. There was no evidence supporting the complainant's allegations. The applicant was 27 years of age, with no prior convictions. He vehemently denied the allegations. The applicant contends that the complainant's evidence about the occasion when he first raised his allegations of abuse - that his uncle and his friend had 'just laughed' - was plainly implausible. These were all matters relied upon before the jury but they were not of a character or quality that required the jury to doubt the complainant's account.

78 The complainant gave a detailed and clear account of each allegation. None of the particulars to this ground that are relied upon are, either in isolation or in combination, such as should have engendered a doubt in the minds of the jury about the applicant's guilt.

80 The jury asked a question after the first day of his Honour's charge, which read relevantly:

The main issue relates to the (perceived) credibility of [the complainant] and his evidence. Various jury members have different assessments on this issue, 100 per cent, beyond reasonable doubt or less? How do we assess the quality of [the complainant]'s evidence given he is a child? How would we assess the quality of similar evidence if the complainant was an adult and had given adult evidence? How do we or should we or not make allowances for discrepancies or non-discrepancies in [the complainant]'s story?

81 His Honour considered that question to be directed to the way in which the jury were to assess the complainant's evidence, given the fact he was a child. His Honour's answer to the question included this instruction:

Now, the answer to your questions as a matter of law is not complicated. [The complainant] is a witness in this trial just like any other witness, and you should treat him just like you would treat any other witness. As I said to you, you bring with you into the jury your collective common sense, and it's a matter for all of you to decide, applying your common sense, whether you accept, either in whole or in part, the evidence of [the complainant].

You know from your experiences of life how a person giving evidence in a matter such as this should be believed. Whether or not you make allowances or you regard matters of a discrepancy or whether or not you regard those discrepancies as large ones or significant ones is a matter for you to decide, applying your common sense...

It is also for you to decide what weight should be attached to any particular evidence, that is, the extent to which the evidence helps you to determine the relevant issues. By that I mean it is up to you to determine how important or how much emphasis you will give to a particular witness' evidence or any part of a particular witness' evidence.

As I mentioned to you at the start of the trial, in assessing witnesses evidence, some matters which may concern you include their credibility and reliability. It's for you to judge whether the witness told the truth and whether they correctly recalled the facts about which they gave evidence. This is something you do all the time in your daily lives. There is no special skill; you just need to use your common sense.

So you may think I'm being unhelpful, but what I'm doing is repeating what I said to you earlier: it's up to each of you to decide the facts of this case. You make of the evidence what you think you should make of it, and you must remember that before you can find any of these charges proven, the onus is on the prosecution and the onus must prove the case, must prove each element of each charge, beyond reasonable doubt, and I went through that with you, I've been through it with you a number of times now. Those words mean what they say: beyond reasonable doubt.

82 Defence counsel took exception to his Honour's answer. He submitted that the trial judge did not make it sufficiently clear that the jury should treat the witness in the same way as an adult witness and that 'they should make no allowances for the fact that the complainant was a child'. Defence counsel also submitted that the trial judge ought to have given the jury a Liberato direction again. His Honour refused both applications. No request was made for a warning under s 165A or a further direction as to the standard of proof.

83 It is convenient to deal with these grounds together. It is unnecessary to distinguish between those parts of the original grounds which were referred to this Court for consideration and those where leave was refused. The applicant now submits that the trial judge misdirected the jury in his answer to the jury's question in that his Honour:

(a) failed to give a warning pursuant to s 165A of the Evidence Act;

(b) failed to adequately address the standard of proof required;

(c) failed to refer to the lack of supporting evidence; and

(d) failed to give a Liberato direction.

A warning under s 165A

84 Despite the width of s 165(1)(c) and s 165(2) of the Evidence Act, s 165(6) provides that a jury may not be warned that the reliability of a child's evidence may be affected by its age. Any such warning must be given in accordance with s 165A(2) and (3). As outlined above, s 165A prohibits a trial judge from warning the jury that children are unreliable witnesses. It does not prohibit the judge from alerting the jury to the possibility in a particular case that the evidence of a particular child witness may be unreliable or from identifying reasons why that evidence may be unreliable.

85 As explained in the ALRC Report No. 69, the policy underpinning s 165A was 'to ensure that warnings about children as a class are not given and trial judges focus on the 'particular circumstances of the child' giving evidence when considering whether to warn the jury about the reliability of that child's evidence'.[43] Any submission or direction which is calculated to invite greater scrutiny of the evidence of the child than if they were an adult witness or because their evidence was recorded so as to treat the evidence as falling into a special category is likely to contravene s 375 of the Criminal Procedure Act and s 165A(1) of the Evidence Act.[44] The clear language of these provisions and the underlying policy precludes a judge or a party from expressing any generalised concern to the jury about the tape recording procedure or the reliability of children's evidence.[45] Evidence given by a child witness is not to be the subject of an unreliability warning unless, as s 165A(2) provides, there are 'circumstances ... particular to the child' which warrant it. Such a view is supported by the following passage from the Explanatory Memorandum to the Commonwealth amending Act at para 291:

The expression 'circumstances (other than solely the age of the child)' encompasses all of the following:

characteristics of individuals of the witness's age (eg suggestibility);

characteristics unique to that child (eg disability); and

historical or current circumstances unique to that child (eg the manner in which the investigation was conducted, the manner in which the child was questioned).[46]

After referring to this passage, Mr Odgers SC observed:

Research into the potential problems with the evidence of young children may support a conclusion that a particular child's evidence may be unreliable because of, for example, the child's level of cognitive development, or because there is a high level of suggestibility in particular contexts.[47]

86 The exception to the charge taken at trial was that 'no allowances should be made for the fact the complainant was a child'. The applicant now submits that the judge should have highlighted the distinction between the evidence given by an adult and a child complainant. That contention must immediately be rejected. Such a direction would have risked contravening the prohibition contained in s 165(6) in that it would likely have conveyed the impression that child witnesses as a class were less reliable and that the evidence of a child witness was inherently less credible, and required more scrutiny, than the evidence of an adult.

87 Next the applicant submitted that the specific warning permitted under s 165A(2) should have been given. The difficulties that the jury raised in assessing the complainant's evidence, so it is put, served only to reinforce the need for a detailed s 165A(2) warning. The jury should have been told that the complainant's evidence may be unreliable and should have been warned of the need for caution in determining whether to accept the evidence of the complainant. It was submitted that a number of the matters particularised under ground 1 should have been highlighted, including the pressure put on the complainant by his family, his particularly young age, the 'leading' questions put to him in the VARE, the purported inconsistencies in his evidence, his cognitive development and the evidence that he was a suggestible witness.

88 These submissions cannot be sustained. First, they again disregard the terms of s 165. A party must request a warning before the trial judge can give one pursuant to s 165A(2). Before the trial judge commenced his charge he stated that he did not consider this to be an appropriate case for a warning in respect of a child witness under s 165A(2). Defence counsel said that he had considered that question and agreed that it was not appropriate. There having been no request made for such a warning, before or after the jury question, no such warning could have been given. Further, if such a request had been made, such a warning could only have been given if the accused had satisfied the trial judge that there were circumstances, other than the child's age, that were particular to the child and which affected his reliability and warranted the giving of the warning. Defence counsel did not suggest that such circumstances existed. The foundation for the giving of the warning was completely non-existent.

89 Although it is unnecessary to go further, I am mindful of ground 4 which asserts under the heading of 'incompetence' by defence counsel that such a warning should have been sought. I should therefore express my view as to the substance of the applicant's contention that the circumstances required it. I do not accept that the matters identified by the applicant as being particular to the complainant would have necessitated a warning, largely for the reasons given under ground 1. None of the particular complaints under ground 1 demonstrated any impropriety in the questioning procedure or the need for any further directions. Turning to the additional matters raised under this ground, the complainant's 'particularly' young age is a matter specifically excluded from consideration in s 165A(2). Second, there was no evidence that the complainant had diminished or abnormal cognitive development.

90 There were no circumstances particular to the child which would have warranted a warning if it had been sought. His Honour answered this aspect of the jury question appropriately by directing the jury to treat the complainant like any other witness and by reminding them that it was a matter for them what import they attached to any perceived discrepancies in the complainant's evidence.

The need to further reiterate the standard of proof, give a further Liberato direction and remind the jury there was no corroboration of the complainant

91 The applicant now submits that, although the jury question was framed in terms of the credibility of the complainant, the question of the standard of proof to be applied in assessing the complainant's evidence was indivisible from the credibility of the complainant, because the case rested entirely on the complainant's evidence. The applicant contends that his Honour's answer, which effectively repeated his previous direction on the standard of proof, was insufficient because the question from the jury demonstrated that the jury had fundamentally misunderstood the issue of the standard of proof and required a further explanation of the topic. The applicant submits, further, that the trial judge should have explicitly reminded the jury that there was no evidence supporting the complainant's evidence.

92 Following the answer given to the jury, defence counsel sought a further Liberato direction but did not seek any of the other directions which it is now said the trial judge should have given. The absence of any request for a further direction on these matters, while not fatal to such a ground, is significant.

93 The trial judge had previously given a Liberato direction about which there is no complaint. No part of the jury question gives rise to any concern that the jury misunderstood that direction. The judge's answer to the jury's question was not directed to a comparative weighing of the evidence of the complainant against the answers given by the applicant in his record of interview. The question did not enliven a risk that the jury would treat their task as one of making a 'choice' between the witnesses as concluding the question whether the prosecution had proved the charges beyond reasonable doubt.[48]

94 In answering the jury question the trial judge was not obliged to reiterate that there was no direct evidence supporting the complainant's allegations. A complete answer to the jury question did not require the trial judge to identify arguable deficiencies in the complainant's evidence or the Crown's proofs. In restating the defence's case during the charge, the trial judge reminded the jury that the prosecution case was based entirely on the evidence of the complainant which he said was the only direct evidence against the applicant. The issue of the prosecution's lack of supporting evidence had been made abundantly clear to the jury and did not need to be re-stated after the jury question.

95 There are numerous passages within the charge that set out the criminal standard of proof. His Honour explained that the Crown case rested on the complainant's evidence for proof of each element of each charge. His Honour made clear in the charge on more than one occasion that the prosecution relied on the direct evidence given by the complainant as proof beyond reasonable doubt that the offences occurred. His Honour also instructed the jury that the defence's case was that the complainant was either lying or that his evidence was unreliable, such that it could not be used as proof beyond reasonable doubt of any of the charges.

96 Defence counsel was vigilant in raising concerns about aspects of the charge. The absence of exceptions to the charge on all save one of the matters now raised on the appeal is instructive. Experienced counsel, familiar with the atmosphere of the trial, did not regard these matters as important and as warranting further direction. That was a rational forensic decision in the circumstances, and the applicant is accordingly bound by it.[49]

98 The applicant submits that the applicant was deprived of the right to a fair trial through the incompetence of counsel. The applicant does not complain that counsel was either flagrantly incompetent or deceitful or that he acted contrary to advice. Instead, the ground of appeal is founded on the basis that counsel was incompetent in failing to request a 165A warning, failing to request a redirection regarding the standard of proof and failing to request that the judge remind the jury of the lack of supporting evidence in answer to the jury's question.

99 The applicant now makes a very serious allegation. Appellate courts have traditionally been 'extremely cautious' in intervening on the basis of alleged incompetence of counsel, and will attach great significance to the deliberate decisions of an accused's legal practitioner as to the conduct of the trial. It will in most cases not seek to go behind decisions taken at the trial by a solicitor or counsel for the accused or even by the accused himself as to the manner in which the trial is conducted.

100 Appellate courts have been loath to adopt a formula to define the class of cases in which intervention will be warranted.[50] In R v Birks, Gleeson CJ reviewed the authorities and summarised three principles governing the power of intervention on the basis of incompetent representation:

A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to instructions or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[51]

101 In Re Knowles, the Full Court (Crockett, McGarvie and Gobbo JJ) said:

The course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by his legal representatives on his behalf. This is illustrated by the statement by Barwick CJ in Ratten v R [1974] HCA 35; (1974) 131 CLR 510, at p. 517; [1974] HCA 35; 4 ALR 93, at p. 99 that: 'It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.' Amongst the various defects or omissions which may lead a trial to become unfair and to amount to a miscarriage of justice are circumstances which may be treated as vitiating the volition or choice by an accused or his lawyers to follow or refrain from following some course at the trial. Some factors capable of amounting to vitiating factors, which are mentioned in the cases, are fraud, mistake, surprise, malpractice and misfortune, and, with particular reference to defence lawyers, inexperience, remissness, defect of judgment or neglect of duty: R v Hadland [1969] VicRp 93; [1969] VR 725, at p. 728; Re Ratten [1974] VicRp 26; [1974] VR 201, at p. 204 and R v Sarek [1982] VicRp 99; [1982] VR 971, at p. 982.[52]

102 In Naidu v The Queen, Weinberg JA and Ross AJA (writing in agreement with Maxwell P) said:

It is well established that an accused is bound by the way their counsel has conducted the trial. That is so irrespective of whether that counsel acted in accordance with the wishes of the accused, and even if counsel's advice involved an error of judgment, or was negligent.

However, a case may arise where a decision taken by counsel during the running of a trial will be recognised as having brought about a miscarriage of justice. In such a case, this court will intervene. The miscarriage may be as a result of 'flagrant incompetence of counsel**',** but may also arise from 'some other cause'.[53]

103 No merit is to be found in any of the detailed criticisms of the manner in which defence counsel conducted the trial. None of the warnings or redirections now complained of were required. Counsel could not on any view be said to be incompetent in failing to seek directions that have not been found to be appropriate. Even if, with the wisdom of hindsight, the applicant had established that one or more of the particular applications ought to have been made, that would not have been sufficient to show that counsel was incompetent.

104 An accused is bound by the way in which counsel conducted the trial save in quite exceptional circumstances. Misguided forensic decisions made by counsel or an error of judgment, even if not made with the approval of the accused will not, save in exceptional cases, provide a basis for establishing that counsel was incompetent and as warranting the setting aside of a conviction. In order to show incompetence, the applicant needed to identify by cogent evidence that a profound and flagrantly indefensible error had been made, that could not be explained away as residing in logic or forensic purpose, it being so ill judged and of such potential importance to the outcome of the trial as to compel appellate intervention to avoid a miscarriage of justice. Evidence of this type is indispensable if an attack of this exceptional nature is to be made on trial counsel. The applicant's written and oral submissions were devoid of such material.

105 I would refuse leave to appeal against conviction.

106 The applicant seeks leave to appeal against sentence on three grounds:

The sentence was manifestly excessive in all the circumstances.
The trial judge erred in finding that this was a serious example of the offence.
The trial judge erred in finding that there was a gross breach of trust as a factor of aggravation.

107 Grounds 2 and 3 are, in essence, particulars of the ground of manifest excess. They raise the contention that the trial judge erred in his assessment of the objective seriousness of the applicant's offending.

108 The applicant submits that the sentence was manifestly excessive in light of the powerful mitigatory factors in the applicant's favour. The applicant had an intellectual disability and was assessed as having an IQ of 59. He was a victim of child abuse and neglect and had suffered from significant alcohol and cannabis abuse problems since his mid teenage years. His ability to reason was at times significantly affected.[54] All of the principles discussed in R v Verdins were applicable. The applicant submits that, in light of these mitigatory factors, a sentence at the lower end of the sentencing range was appropriate.

109 The trial judge took account of all of these matters in mitigation. His Honour also accepted that the offending was 'opportunistic and not predatory', was unplanned and was committed without violence or the threat of violence.[55] Pursuant to the Verdins principles, his Honour accepted that he must moderate the principles of general and specific deterrence in light of the applicant's disability.[56] His Honour also noted that the relationship between the applicant and the complainant appeared 'to have been that of best friends'.[57] He nonetheless accepted the prosecution's submission that the offences involved a gross breach of trust[58] and

109 found that the offending conduct was 'a serious example of what is regarded as a very serious offence'.[59]

110 His Honour acknowledged and gave careful consideration to all the mitigatory matters adverted to by the applicant. However, he correctly weighed these matters against the very serious objective circumstances of the offending. His Honour noted the very young age of the child, the ongoing nature of the abuse, his exploitation of the complainant's trust and friendship and the serious breach of trust, in that the offences occurred when the complainant's mother had entrusted the complainant into the applicant's care.[60]

111 The trial judge reviewed the current sentencing practices for the offence of incest outlined by the Sentencing Advisory Council and the chart of cases considered in DPP v DJ.[61] His Honour imposed a sentence he considered to be below the median.

112 With respect to the applicant's submission that the trial judge erred in finding that this was a serious example of the offence, it is true that the applicant's conduct lacked some of the more common and salient aggravating features that often accompany offences of this kind. But the individual words used by a judge in his sentencing reasons must be viewed in context and are not to be treated as legislative pronouncements. As the Court of Appeal (Maxwell P, Weinberg and Harper JJA) said in R v Mokbel:

A judge's sentencing remarks are not to be read as though they were the words of a statute. They must be read, and understood, in the context of the reasons for sentence taken as a whole. They must also be read and understood against the background of what was said by counsel and by the judge during the course of the plea.[62]

113 The plea was conducted on the basis that the applicant's offending was a serious example of a serious offence. The prosecutor submitted on the plea that the offending involved a gross breach of trust and was a serious example of the offence because of the young age of the victim and the extended period of time over which the offences were committed. Defence counsel did not contest these descriptions. It was acknowledged on appeal that the applicant recognised he was performing a role as a father figure to the complainant. His Honour's characterisation of the offending, when viewed in the context of the plea and his reasons for sentence, shows that he did not fall into error.

114 In my view, the sentence imposed was well within the range of a sound exercise of the sentencing discretion.

115 I would refuse leave to appeal against sentence.

[1] Video and Audio Recorded Evidence. In addition, the evidence of children and cognitively impaired witnesses is given at a special hearing at which the accused, counsel and the judge are present. Normally the VARE will be played at the special hearing and the child will then be cross-examined on it from a remote facility. The audio-visual recording of the special hearing will be played at the trial, but may be edited to exclude inadmissible evidence, see Criminal Procedure Act 2009 (Vic) ss 369-376.

[2] For a discussion of the difficulties children may experience in answering questions because of the language that is used see: Victorian Law Reform Commission, Sexual Offences: Law and Procedure : Final Report (2004), 310-313.

[3] K London, M Bruck, S Ceci, D W Shuman, 'Disclosure of Child Sexual Abuse What Does the Research tell Us About What Children Tell? ' (2005) 11 Psychology, Public Policy and Law 194.

[7] Ibid 596-7 [113] (citation omitted). See, in this Court, R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40].

[8] R v Shah [2007] SASC 68, [4] (Doyle CJ).

[9] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535.

[10] Under r 5 of the Criminal Procedure Regulations 2009, the witness may give evidence to a member of the Victorian Police who has completed a Division 5 training course, a person authorised by the Commissioner of Police to conduct the interview who has completed a Division 5 training course, or, if the interview is conducted in another State or Territory, a police officer from that State or Territory.

[14] Part 8.2 was inserted into the Criminal Procedure Act 2009 by s 50 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009.

[15] See s 8 of the Crimes (Sexual Offences) Act 1991. Special hearings were inserted into the Evidence Act 1958 in 2006 - see s 38 of the Crimes (Sexual Offences) Act 2006.

[16] Crimes (Sexual Offences) Bill, Second Reading Speech, Jim Kennan, 13 March 1991, p 147.

[17] R v NRC [1999] VSCA 184; (1999) 3 VR 537, [7] (Winneke P).

[18] Australian Law Reform Commission, Seen and heard: priority for children in the legal process, Report No. 84 (1997) ('Seen and Heard'), [14.48]-[14.50].

[19] In Seen and Heard, the Commission observed that 'recent research into children's memory and the sociology and psychology of disclosing remembered events has established that children's cognitive and recall skills have been undervalued. At the same time other research has demonstrated that adult testimony is not always reliable, showing that mature witnesses' memories can be equally fragile and susceptible to the distorting influences of suggestion and misinformation. The presumed gulf between the reliability of evidence from children and that from adults appears to have been exaggerated.' [14.19]. See also Australian Law Reform Commission, Uniform Evidence Law, Report No. 102 (2005), [18.56-57].

[20] Australian Law Reform Commission, Uniform Evidence Law, Report No. 102 (2005), [18.64].

[21] Seen and Heard, [14.20], [14.23].

[23] ALRC Report No. 102, recommendation 18-2. See also Stephen Odgers, Uniform Evidence Law, (8th ed.) Thompson Reuters (2009), 824 [1.4.3120].

[24] Sub-sections 368(3), 374(3) and 381(2) are all put in these identical terms.

[28] R v NRC [1999] VSCA 184; (1999) 3 VR 537, 540 [7] (Winneke P).

[29] In R v HRA [2008] VSCA 56; (2008) 183 A Crim R 91, 122 [107], the complainant was reminded in the VATE about something the complainant had previously said. Kellam JA did not consider the questions asked had the effect of bolstering the credit of the complainant.

[33] R v NRC [1999] VSCA 184; (1999) 3 VR 537. The applicant was effectively deprived of any realistic opportunity of testing the credibility and reliability of the complainant's evidence through cross-examination, which the adversarial system of justice allows as a means of determining where the truth lies.

[34] See R v Knigge [2003] VSCA 94; (2003) 6 VR 181, 197 [30]-[32].

[38] It may be noted that s 29(2) of the Evidence Act of 2008 permits evidence to be given a narrative form.

[41] R v ERJ (2010) A Crim R 270, 280-1 [53]; MG v R (2010) 29 VR 305, 308 [59]; Svajcer v R (2010) 200 A Crim R 587, 596 [38].

[43] Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper No 69 (2005), 473 [16.90]. See also Clarke v The Queen [2013] VSCA 206, [23].

[44] Clarke v The Queen [2013] VSCA 206, [14], [18], [22].

[45] Clarke v The Queen [2013] VSCA 206, [25] (Maxwell ACJ).

[46] Explanatory Memorandum, Evidence Amendment Bill 2008, 34-5.

[47] Stephen Odgers, Uniform Evidence Law in Victoria (2nd edition, 2013), 954 (citations omitted).

[48] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan CJ).

[49] James v The Queen [2013] VSCA 55, [4]-[15]; Tunja v The Queen [2013] VSCA 174, [4]-[7].

[50] R v Miletic [1997] 1 VR 593, 599.

[51] (1990) 19 NSWLR 677, 685. The reference to 'flagrant incompetence' is taken from the English case of R v Ensor [1989] 2 All ER 586, in which the Lord Chief Justice said, 'if the Court had any lingering doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate, then it would quash the convictions'.

[52] Re Knowles [1984] VicRp 67; (1984) VR 751, 769.

[53] Naidu v The Queen [2011] VSCA 14; (2011) 31 VR 212, 219 [33]-[34].

[54] DPP v Martin (Unreported, County Court of Victoria, Judge Lacava, 13 July 2012), [36].

[62] R v Mokbel [2011] VSCA 106, [37].

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

(Sexual Offences) Act 1991

Martin v The Queen [2013] VSCA 377

At a glance

Court

Decision date

Before

Source

Judgment (199 paragraphs)

Martin v The Queen [2013] VSCA 377 (17 December 2013)

Parties

Legislation Cited (5)

Cases Cited (13)