Parsons (a pseudonym) v The Queen [2016] VSCA 17

[2016] VSCA 17

Court of Appeal (Vic)|2016-02-23|Before: Mr J, Maxwell P, Redlich JA, Priest JA

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2016-02-23

Before

Mr J, Maxwell P, Redlich JA, Priest JA

Source

Original judgment source is linked above.

Judgment (163 paragraphs)

[1]

The applicant thereafter testified that, prior to giving that explanation in evidence, he had not told anyone of this explanation. Possible non-compliance with the rule in Browne v Dunn therefore ceased to be an issue.
Neither party thereafter made any request that either witness be recalled on this issue. No reference was made thereafter by either party or the judge to the fact that no questions concerning this explanation had been put to the complainant or her mother. The prosecution in closing the case submitted only that the reference to the G-string and the other Facebook messages showed that the applicant had a sexual attraction to the complainant and that 'there was no other reasonable explanation for these messages'. The defence in closing responded that the explanation given by the applicant for the G string and other messages was a 'credible' one.
Neither party made any request pursuant to s 11 of the Jury Directions Act 2013 that the trial judge give any directions concerning the rule in Browne v Dunn. Yet the applicant now contends (with respect to this and the other four issues to which we shall hereafter refer) that the trial judge was obliged to give a careful direction on the rule in Browne v Dunn, particularly as the imputation of recent invention 'loomed large.' He submits the jury should have been instructed that there may be many reasons why counsel may have omitted to fulfil his obligation and cross examine the relevant witnesses.
The need to have the jury consider alternative explanations for counsel's omission draws upon the conventional direction discussed by King CJ in Manunta,[17] who also emphasised the need for caution or circumspection before conclusions should be drawn from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. But the submission has no substance in the present context. Such a direction would have been irrelevant with respect to the Facebook message, the applicant having conceded that he had not provided his counsel with the explanation he ultimately gave in evidence.

[37]

No objection was taken to this cross-examination by defence counsel. It can be seen that, by the conclusion of this portion of the cross examination, there was no dispute between the parties that there had been a number of occasions when a massage took place at the complainant's home without any other person being present. As it was not an issue in dispute by the end of the trial, the absence of 'puttage' on that issue assumed no further relevance. The prosecution did not rely upon the breach to found any argument before the jury. No suggestion of recent invention was or could have been made. The prosecutor's only submission in closing was that the evidence of the complainant, her mother and JF demonstrated that the applicant had initially told a lie in his record of interview.
For completeness we should, however, address the applicant's submission that, as the prosecution 'was clearly on notice about this issue', it was inappropriate for the prosecutor to cross-examine the applicant in the manner in which she did so as to suggest there had been a breach of the rule in Browne v Dunn. We reject that contention. Notice will not ordinarily relieve a party from compliance with the rule in Browne v Dunn. In limited circumstances, pre-trial notice - where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement - has been regarded as sufficient notice to a witness of the submission ultimately intended to be put to the court. But the rule in Browne v Dunn will require more extensive cross-examination in criminal trials and in cases where all the evidence is given orally.[18] Ordinarily, where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features, which may include the time, place and circumstances of the occurrence.[19] Further in Rees v Bailey Aluminium Products Pty Ltd,[20] this Court said that 'if matters in controversy are not "put" to the witness in cross-examination, the tribunal's capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded'.[21]
At the time the complainant was cross examined, only the applicant and his counsel knew whether the applicant would maintain the claim he had made in his record of interview that there was always someone present when he conducted a massage of the complainant. The record of interview was not yet in evidence. If the assertion in the interview was to be maintained, the complainant's evidence to the contrary had to be challenged. In evidence in chief the applicant did maintain that claim. Hence, there was a breach of the rule as the complainant had not been challenged.

[79]

Again, counsel for the applicant at trial took no objection to the cross examination.
Counsel for the applicant in this Court submitted, however, that the cross-examination was improper. It was submitted that, whilst it was accurate to say that the denial of massaging the complainant's upper inner thighs was not expressly put to her in cross-examination, the complainant had given scant evidence that the applicant had massaged her upper inner thighs. The only evidence concerning the inner thigh was in relation to the events founding charge 1, which did not in terms refer to the upper inner thigh. Further, so it was argued, 'the issue was clearly raised in the sense that the defence case from the very beginning was that there was no improper massage at all'. It was also submitted that, in any event, the complainant was cross-examined to the effect that it would have been false to say the applicant massaged her so close to her vagina that he was 'almost fingering her'.
It was acknowledged on appeal by both parties that there was a misunderstanding resulting in confusion between the applicant and the prosecutor on this issue. The applicant in substantial parts of his evidence had not disputed that part of his massage involved the upper thighs. In the impugned above passage he drew the distinction between 'upper' and 'upper inner thigh.' The prosecutor acting upon the literal meaning - that he disputed massaging the upper thigh - put the questions that she did.
Having regard to much of the applicant's earlier evidence and the uncertainty as to what the applicant was in fact denying in the impugned passage, it is not at all clear that there was any breach of the rule. As the applicant points out in his submission, it had been made clear to the complainant in cross examination that what was disputed was that the complainant was massaged in the area immediately proximate to her vagina or anus. Had the prosecutor approached the matter with greater circumspection, it may have become apparent to her that there was a misunderstanding of the applicant's answers and that he was not disputing that he had massaged her upper thighs. Unfortunately, there was no objection to this cross examination or clarification of what the applicant was disputing.
Defence counsel did not regard the matter as one requiring objection or clarification in re-examination. The evidence was not the subject of argument in closing addresses. No request was made for a direction to the jury. The issue received no attention in the charge. It was not of such a nature as to give rise to any unfairness.
This ground is not made out.

[81]

When cross-examined by the applicant's counsel, the informant agreed that the applicant had 'never been convicted or found guilty of any offence'. Beyond that, however, no evidence was led concerning the applicant's good character. Moreover, there was no reference to the applicant's good character in his counsel's final address.
Ground 2 complains that the failure of the applicant's counsel to adduce evidence of the applicant's good character in a 'particular respect' resulted in a substantial miscarriage of justice. As will become clear, however, it is impossible to conclude other than that the conduct of counsel now criticised was the product of a rational forensic decision. Essentially for that reason, ground 2 cannot succeed.
Counsel for the applicant in this Court acknowledged that, notwithstanding that trial counsel did not press for a direction on good character, the judge gave directions on 'general good character'. He pointed out, however, that s 110 of the Evidence Act 2008 permitted an accused to adduce evidence that he or she is generally, or in a particular respect, a person of good character. Good character evidence 'in a particular respect' was available by way of evidence from several witnesses concerning the applicant's good reputation within the particular sporting community (that is, relating to the particular context in which the relevant conduct allegedly took place). As we understood counsel's oral submissions, the character 'in a particular respect' of which he spoke, was concerned with the absence of any history of sexual misconduct with teen-aged female students whom the applicant coached. So much was demonstrated by the evidence called on the applicant's plea in mitigation, which showed 'the plethora of good character evidence of this kind available to the applicant'. It was submitted that such evidence 'would have constituted a powerful defence to the allegations of sexual abuse', since it bore 'both on the unlikelihood of the commission of the offences and on the applicant's credibility'. Despite these matters, so counsel argued, evidence of the applicant's good character 'in a particular respect' was not adduced at the trial. The applicant thus was deprived of a direction in that regard, resulting in a substantial miscarriage of justice.
We pause to observe that, so far as evidence of good character is concerned, the plain intention of s 110 of the Evidence Act 2008 is to vary the common law 'all or nothing' attitude. It is thus open to an accused person to lead evidence that he or she is of good character 'generally' or 'in a particular respect'.[22] Evidence of good character in a particular respect might, for example, include evidence that an accused person has no prior history of sexual misconduct with children. All other things being equal, it would comprehend the kind of evidence that the applicant's counsel submitted was available to be called in this case; namely, the applicant had no history of sexual misconduct with teen-aged female students whom the applicant coached. So much is clear from Zurita,[23] in which the New South Wales Court of Criminal Appeal said:[24]

[104]

No exception was taken to these directions.
Pausing at this juncture, it may be observed that the bare record of the trial suggests, first, that trial counsel chose to raise good character in a 'very limited way' (that is, that the applicant had no prior convictions or findings of guilt); secondly, although he did not 'particularly seek one', counsel accepted that the judge should give directions of the kind that were given; thirdly, the trial judge gave the jury directions on the applicant's good character in conformity with what she had anticipated in discussion with counsel; and, fourthly, no exception was taken to the directions that were given. Moreover, it is plain that the applicant received the benefit of a direction which instructed the jury that they could use the applicant's good character as bearing on 'the credibility of his evidence and his denials of the prosecution case', and as going to the unlikelihood of guilt.
Quite apart from the bare record of the trial, however, further light is cast on trial counsel's tactics by an affidavit that he swore, which was placed before the Court in unusual circumstances. Although the Court had not sought the affidavit[26] - it seems that it had been asked for by the Registry on the initiative of the Registry's officers - the hearing in this Court initially proceeded on a misapprehension by the parties that the affidavit had been asked for by the bench. Once the misapprehension was detected, the parties were invited to provide written submissions as to whether the Court should act on the affidavit's contents. As it transpired, the respondent submitted that the Court should have regard to the whole of the affidavit. On the other hand, the applicant's counsel submitted that the Court ought have regard only to the first five paragraphs, and should ignore the balance. Given the unusual manner in which the subject of the affidavit arose, as a matter of fairness the Court resolved to act on the applicant's submissions, and to have regard only to the affidavit's first five paragraphs.[27] Ordinarily however, the court would not be prepared to receive only a portion of such an affidavit.
In those first five paragraphs, counsel attested to the fact that the calling of evidence of good character was discussed with the applicant on a number of occasions. Counsel said that he was aware that there were a number of potential witnesses available to give evidence of the applicant's reputation and of their experience of him as a coach. In counsel's view, however, the leading of such evidence would have exposed the witnesses to cross-examination on material disclosed in the hand-up brief; and in particular, material to be found in the statement of four witnesses (those statements being exhibited to counsel's affidavit).
Counsel swore that, in addition to discussing with the applicant 'the risk that would have arisen had character been opened by the defence, it was also explained to the [applicant] that the good character direction would have been of no real benefit in his case where there was evidence of improper communication between himself and the complainant via Facebook'. It was asserted that the applicant's 'defence' was 'one where he conceded that his messages to the complainant were inappropriate'. Counsel said that he 'did not request a direction as to good character as no evidence had been led for that purpose'. He also stated that his cross-examination of the informant 'occurred after a specific discussion with the trial prosecutor, and was led to prevent any speculation by the jury that as to whether the [applicant] may have had any other prior convictions or findings of guilt'.
As we have said, counsel swore that he thought that the introduction of evidence of the applicant's good character, and the leading of such evidence, would have exposed the character witnesses to cross-examination on material to be found in the statement of four witnesses. The witnesses were husband and wife, A and B; their son, C; and another sports coach, D.
In his statement to police, A said that his son was coached by the applicant. He said that his son had once called him whilst on a training camp, and told him that CPB was sitting on the applicant's knee. A also said that, whilst on a tour, he and his wife tried to raise with the applicant their concerns about the 'contact' he was having with CPB, but that the applicant 'was sort of sweeping it under the carpet'. Further, A stated that he saw the applicant 'tickle' CPB on the hips - he also did that with the boys - give her 'piggy-back' rides and allow her to sit on his knee (although A said that he never saw the applicant touch CPB 'inappropriately'). He said that he confronted the applicant 'about the way he was with [CPB]', and terminated his services as a coach.
B told police that 'everything' that the applicant did with the complainant 'crossed that boundary that a coach shouldn't cross', including 'driving her everywhere', 'being more of a father figure' and 'always doing things for her'. She spoke of a camp where the applicant had said that he was not going to attend dinner, when 'lo and behold they [that is, the applicant and CPB] walked in late together'. B thought that the applicant had again 'crossed that boundary'. In her statement, B said that she did not see 'any inappropriate touching', although she did see the applicant massage the complainant's legs. She said that she spoke to the applicant about 'setting boundaries' with CPB, but the applicant said he was doing nothing wrong. B said that she spoke to other parents at the club about the applicant's interaction with the complainant.
C told police that other athletes would 'make jokes' about the applicant and the complainant. He said that whilst on a camp, the applicant went to a cabin to give CPB a massage. They were gone 'for a long time'. C called his father and said 'something was up'. He thought that 'something wasn't right' and that 'they were doing stuff'. C stated that he thought 'they were getting pretty touchy as well'. Ultimately, C asserted that the applicant 'pretty much broke all the boundaries a coach can break'.
D was a full-time professional coach. In June 2000, he was on tour with students, parents and the applicant. One evening, a parent who was sharing a cabin with the applicant told D he was 'uncomfortable with the situation' in the cabin he shared with him. D looked through the applicant's cabin window and saw him on the bed with a junior female athlete, 'E'. They were 'laying down on their stomachs up on their elbows', and 'were animated with each other mucking around'. D expressed the view that E 'wasn't supposed to be in there at 9.00pm shoulder to shoulder with the coach on the bed'. He said that he thought the applicant's behaviour that night was 'unprofessional from a coaching point of view' and something he 'wouldn't do as a coach'.
We doubt whether much (if any) of what was contained in the statements of A, B or C was admissible, it being mainly hearsay, conjecture and non-expert opinion. Moreover, we would regard the evidence to be derived from D's statement as containing elements of tendency - requiring it to meet a high threshold of admissibility[28] - and opinion. Whether D was capable of expressing the opinions that he did was by no means clear upon a reading of his statement.[29]
Despite the doubts we harbour about the admissibility of much of the content of the statements referred to, it is plain that, at least partly based on that content, trial counsel formed the view that some of the matters about which A, B, C and D spoke could be used to impugn the credibility of evidence which might be introduced through potential character witnesses. Hence, trial counsel made a deliberate forensic decision, informed by his assessment of the content of the statements referred to, and its potential impact on any character evidence he might seek to introduce. In the circumstances, it might have been advisable for counsel to seek an advance ruling on whether any of the matters raised in the statements of A, B, C or D could be used to impugn available character evidence.[30] The failure to seek an advance ruling was not, however, the subject of any criticism in this Court.
Generally speaking, a person in the applicant's position is bound by the forensic decisions of counsel utilised on his or her behalf.[31] Where counsel at trial has made what appears to be a rational forensic decision on behalf of his or her client, it is difficult - although not impossible - for an appellate court to conclude that 'as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice'.[32] Thus, in TKWJ, Gaudron J observed:[33]

[118]

When pressed by the Court to identify with precision the evidence of good character 'in a particular respect' that was available to trial counsel - trial counsel had sworn that he 'was aware that there were potential witnesses prepared to give evidence of the [applicant's] reputation and their experience of him as a coach' - the applicant's counsel provided copies of statements of three witnesses which were contained in the depositions (and which thus must have been available to trial counsel). Among other things, those statements addressed the appropriateness of a coach massaging a student. Counsel for the applicant also referred to written character references tendered on the plea - although, it must be said, they bore dates after the date of conviction - and also to the evidence of character witnesses given on the plea. The thrust of the character references and evidence was that the applicant was regarded as having been an extremely hardworking, thoughtful and professional coach; that he had mentored and supported those whom he had coached, particularly young people; and that he was generous with his time, equipment and commitment. He was described as having been a very positive influence on the young people in his care.
In considering whether in this case there has been a substantial miscarriage of justice, the affidavit sworn by trial counsel is, in our view, something of a distraction. Indeed, in deciding this ground we are prepared to assume that the kind of evidence described above was known to trial counsel to be available and was capable of being called at trial. One of the essential questions that this Court must answer, however, is whether - viewed objectively - the failure to call the putative evidence was capable of being explained on the basis that the course taken was to obtain a forensic advantage.
Viewed objectively, it takes little imagination to identify sound (if not compelling) reasons why counsel might not have called the kind of character evidence which it is now said he should have. Such witnesses could have been - and, very likely, would have been - confronted in cross-examination with the applicant's admittedly inappropriate internet conversations with the complainant, and with the inappropriateness of an adult male coach massaging a young female with her underwear pulled down. In the hands of a skilled prosecutor, such matters might have been strong - if not devastating - fodder for cross-examination. Thus, putting to one side trial counsel's affidavit, in this case the failure to call evidence of good character in a particular respect - viewed purely objectively - presents to one experienced in criminal trial advocacy as a rational forensic strategy.
Moreover, despite the failure to call positive evidence of good character, the jury would have understood from the informant's evidence that the applicant had no prior history of sexual misconduct. Furthermore, as we have mentioned, the applicant was the beneficiary of a conventional direction on good character. Thus the jury would have understood that the applicant's good character bore both on the probability of his commission of a crime and on the credibility of his denials of wrongdoing. In these circumstances it is impossible to conclude that there has been a substantial miscarriage of justice.