Quinn (a Pseudonym) v The Queen [2018] VSCA 82

COUNSEL: I need a direction on the misconduct evidence.

HIS HONOUR: Now which misconduct evidence are you talking about?

COUNSEL: Well I suppose is it the context or the relationship evidence - - -

HIS HONOUR: Yes all right when you say the context you're talking about the other 20 occasions and the other - - -

HIS HONOUR: - - - kissing, yes, so just a context type direction for that?

COUNSEL: Well what use can be made of it and what use can't be made of it?

COUNSEL: And I suppose in that sort of broad general category Your Honour you would need to give them obviously a separate consideration direction.

COUNSEL: And that they can't use a finding on one count in the standard form as to other counts.

HIS HONOUR: Yes, yes I'll do that. Anyway, when you say the misconduct evidence you're referring to the - really the context evidence of the other sexual acts.

1. Following the exchange set out above defence counsel requested:
   • A motive to lie direction;
   • A prior inconsistent statement direction; and
   • A direction in respect of admissions.
2. The trial judge confirmed with defence counsel that he was not seeking any other directions and then asked the prosecutor what directions she sought. The prosecutor referred to a potential direction which had been sought by defence counsel pursuant to s 43 of the Jury Directions Act relating to the prosecutor's failure to have re-examined the complainant during the special hearing as to whether it was possible that she had forgotten some of the texts comprising Exhibit B. Thereafter, the following exchange took place between the trial judge and the prosecutor:

COUNSEL: So there were a number of vices attached with going down the course my learned friend asserts I should have done. And prior to the special hearing, she was not shown either the bundle, the hundred and something pages comprising the full download. Nor was she shown the 10 page extract. In addition Your Honour I'd submit there needs to be a direction under s 29 of the Jury Directions Act.

HIS HONOUR: Hold on, well I'm not asked to give one so - or you are?

COUNSEL: Well I'd submit that it's appropriate in as much as there's context evidence being led Your Honour of the uncharged acts. The other misconduct. And it's important, particularly given the previous ruling. And the Crown stepped back in April from use of the texts and so forth as tendency evidence.

COUNSEL: So unless Your Honour considers it inappropriate, it seems to me though that it goes beyond the use of the text message to the other uncharged acts.

HIS HONOUR: Sorry, s 29 then you say would have an application in terms of the - we'll use the term, the uncharged sexual act.

COUNSEL: Yes Your Honour. Where [the complainant] refers to 21 other occasions of sexual intercourse.

1. Mr Carr placed reliance upon the opening words of the exchange set out above '[i]n addition Your Honour I'd submit there needs to be a direction under s 29 of the Jury Directions Act.' He submits that this was a request for a direction in respect of Exhibit B. In this regard, he points to the fact that the request followed on immediately from a discussion between the prosecutor and the trial judge regarding a potential s 43 direction in respect of the prosecutor's failure to re-examine in respect of the text messages. He also points to the statement '[a]nd it's important, particularly given the previous ruling. And the Crown stepped back in April from use of the texts and so forth as tendency evidence.' He submits that the reference to the evidentiary ruling is a reference to the trial judge's ruling as to the admissibility of the text messages. In addition, he points to the specific reference to the Crown eschewing any reliance upon the texts as tendency evidence.
2. As against the matters set out above, the following matters cast doubt as to whether the prosecutor was requesting a s 29 direction in respect of Exhibit B. First, the prosecutor's use of the phrase 'in addition' occurred in the course of an exchange during which the prosecutor was asking for a series of discrete directions. It does not follow from the fact that the prosecutor had immediately beforehand been seeking a direction in respect of Exhibit B, that the prosecutor was seeking an additional direction in respect of Exhibit B. Second, the prosecutor stated that the s 29 direction was appropriate '... in as much as there's context evidence being led Your Honour of the uncharged acts. The other misconduct.' This is not a reference to Exhibit B. It is a reference to the uncharged act evidence.
3. Whatever uncertainty arose from the exchange extracted above, the trial judge moved to clarify what evidence was the subject of the request for a s 29 direction:

HIS HONOUR: Sorry, s. 29 then you say would have an application in terms of the - we'll use the term, the uncharged sexual act.

COUNSEL: Yes Your Honour. Where [the complainant] refers to 21 other occasions of sexual intercourse.

1. This exchange records the prosecutor's position that the application of s 29 was being raised in respect of the uncharged act evidence. Thereafter, an exchange took place, at the conclusion of which the prosecutor withdrew any request for a s 29 direction in respect of the uncharged act evidence. The prosecutor did so because she was content for the trial judge to provide a direction on context evidence, rather than a direction pursuant to s 29: [35]

HIS HONOUR: It's before them as to context isn't it?

COUNSEL: That's correct and that's why I'm raising this as an issue for consideration.

HIS HONOUR: Well don't I just tell them, as directly as I can that it's only there as context. I mean, without

HIS HONOUR: - - - cross-examination picking up - it's in its true context, the true and realistic context without that, it'd be three incidents occurring just out of the blue.

HIS HONOUR: So I've got to tell them something about it and

COUNSEL: Your Honour probably the direction on context evidence as it stands in the criminal charge book would be appropriate.

HIS HONOUR: If you can find it, they've hidden it somewhere recently. But anyway I'll hunt it down.

COUNSEL: I can find it over the weekend and email it to Your Honour's associate.

COUNSEL: There's one further direction that I would seek Your Honour.

HIS HONOUR: This is all very rough because I haven't had any of these discussion with either of you, I didn't know necessarily what either would be asking for. But I had in mind saying something along these lines that, you have evidence touching upon occasions other than the charged occasions - the 20 or so events. It's led purely to place the charged acts in a true and realistic context or setting. To show that they're not just three incidents arising out the blue. That evidence of the other occasions is not to be used by you in any way other than in this way. Remember this, you have to be satisfied beyond reasonable doubt that the particular charged act took place. If you're not so satisfied of that you must acquit. And that would be the position even if you accepted that there had been other occasions of sexual contact.

HIS HONOUR: Now does that deal with the matter that you're raising or not?

1. The direction foreshadowed by the trial judge, as extracted above, was a context direction in accordance with clause 4.15.8 of the Criminal Charge Book. The exchange that followed between the trial judge and the prosecutor records the prosecutor's acceptance that a context direction of the type foreshadowed by the judge dealt with the form of the direction sought by the prosecutor in respect of the uncharged act evidence. At that point, there was no request before the trial judge by either counsel for a s 29 direction, either in respect of Exhibit B or the uncharged act evidence.
2. Shortly after the exchange set out above, defence counsel, referring to the uncharged act evidence, expressed concern as to the utility of a context direction in respect of such evidence. In response, the trial judge stated:

COUNSEL: Well with respect Your Honour in my submission, that's not sufficient because it doesn't really tell the jury anything. What does it tell the jury?

HIS HONOUR: Well that they're in a relationship. It's not just those three events.

COUNSEL: They're in a relationship, and most jurors would start to reason along tendency.

HIS HONOUR: Well, you've not asked me to give an anti-tendency, but I can if you want.

78 Notwithstanding the trial judge's express invitation to defence counsel to request a s 29 direction, no application was made at that time for a s 29 direction in respect of the uncharged act evidence.

1. At the commencement of the sixth day of hearing an exchange took place between the trial judge and defence counsel regarding the admissibility of the uncharged act evidence. Counsel asked the trial judge to revisit his ruling as to the admissibility of the evidence. His Honour refused to do so. Thereafter, the trial judge asked counsel whether he was requesting any form of direction under s 29 of the Jury Directions Act. Defence counsel confirmed that he was seeking a direction under s 29 in respect of the uncharged act evidence.
2. Immediately prior to the prosecutor and defence counsel making their addresses to the jury the only request for a s 29 direction had been made by defence counsel in respect of the uncharged act evidence. No s 29 direction had been requested in respect of Exhibit B.
3. As to the uncharged act evidence, the trial judge gave a context direction as requested by the prosecutor and a s 29 direction as requested by defence counsel:

This evidence has been led only for the very limited purpose that I have described. You must not use that evidence for any other purpose. That evidence of those other occasions is not to be used by you in any way in establishing the guilt of the accused man of any of the particular charged acts. It is before you purely as to context.

You certainly must not use this evidence of these other occasions to reason that [the appellant] is the kind of person who is likely to have committed the particularised offences and to use that conclusion as evidence of his guilt of any of those offences; that is totally prohibited.

As I have told you, this is context evidence only, that is all it is, and you must not use it in any way as establishing his guilt of the six charges before you.

1. Exhibit B consists of ten pages. A text message exchange on 28 April 2015 commencing at 12:07:29 and concluding at 12:21:25 was admitted into evidence as a specific admission by the appellant that he had engaged in the complainant's first act of sexual intercourse, constituting charge 1. The text message exchange was admitted as direct evidence that the appellant had committed the offence charged. This evidence did not invite tendency reasoning on the part of the jury. Had there been a request for a s 29 direction in respect of Exhibit B, the 28 April 2015 text message exchange would have to have been excised from any s 29 direction. The trial judge engaged in comprehensive exchanges with both the prosecutor and defence counsel regarding the form of directions which they sought. However, there was no exchange between the trial judge and either counsel as to the excision of the 28 April 2015 text message exchange from any s 29 direction. The absence of any such exchange is consistent with there having been no request for a s 29 direction in respect of Exhibit B.
2. As noted earlier in this judgment, the appellant was granted leave to appeal in respect of Ground 2 on the basis that defence counsel had requested a s 29 direction in respect of Exhibit B. The appeal was conducted on an entirely different footing, namely, that the request was made by the prosecutor. This observation is not made by way of criticism of Mr Carr. Rather, the significant shift in the forensic underpinning of the appellant's argument in respect of Ground 2 serves to highlight the dangers inherent in focussing upon a few lines of transcript, couched in inconclusive terms. When the totality of the exchanges between the trial judge and the prosecutor and defence counsel are considered, the better view is that no request was made by either counsel for a s 29 direction in respect of Exhibit B. The absence of any such request is reflected in the content of the judge's charge which, consistent with defence counsel's request, included an unimpeachable s 29 direction in respect of the uncharged act evidence.
3. Neither the prosecutor nor defence counsel took any exception to the judge's charge despite being invited to do so. I reject Mr Carr's submission that the failure of the prosecutor and/or defence counsel to have raised with the trial judge the absence of a s 29 direction in respect of Exhibit B was a consequence of 'an oversight'.
4. The eloquence with which Mr Carr advanced his submissions cannot conceal an underlying contention that the trial judge and counsel were seriously remiss in the discharge of their respective duties. The former by reason of his failure to give a direction which, it was contended, he had been requested to give. The latter by reason of oversight which, presumably, was a consequence of inattention whilst the trial judge delivered his charge.
5. The appellant bears the onus of proof in establishing an error of law constituted by failure on the part of the trial judge to have given a s 29 direction in respect of Exhibit B, in circumstances where the appellant contends he was requested to do so.[36] The appellant has not established that any request was made by the prosecutor for a s 29 direction in respect of Exhibit B.

S 16 Jury Directions Act

1. I have concluded that no request was made by either defence counsel or the prosecutor for a s 29 direction in respect of Exhibit B. There remains the question of whether the trial judge should nevertheless have exercised the residual power conferred by s 16(1) of the Jury Directions Act to give a s 29 direction in respect of Exhibit B.
2. S 16(1) provides:

The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

1. In his report of 14 November 2017 the trial judge stated:

As to Ground 2 of the Appellant's Further Revised Written Case dated 23 October 2017, that I failed to give the requested s 29 anti-tendency jury direction in relation to Exhibit B (the text messages), I was not asked to give such a direction in relation to the texts and nor did I believe that it was necessary to give such a direction. There were not substantial and compelling reasons for doing so and I believe that adequate directions were given in other parts of the Charge dealing with those texts.[37]

1. The trial judge's reference to 'substantial and compelling reasons' was plainly a reference to s 16 of the Jury Directions Act.
2. Exhibit B comprised ten pages of text message exchanges between 25 April 2015 and 30 April 2015. The prosecutor in her final address to the jury focussed on two particular email exchanges. The first, commencing at 12:07:05 and concluding at 13:54:10 on 26 April 2015 was said to constitute a general admission by the accused as to the existence of a past sexual relationship and the anticipation of its resumption. The second text, commencing at 12:07:29 and concluding at 12:21:25 on 28 April 2015 was said to constitute a specific admission in relation to charge 1. These two text exchanges were the subject of a Burns direction.
3. The balance of the text messages which comprise Exhibit B include several sexually charged exchanges, consistent with the appellant not merely having a sexual interest in the complainant, but being willing to act on that interest, for example:

Appellant: I'm really really really attracted

Appellant: To you really really really

Appellant: Like really...

Appellant: Breathlessly

Appellant: Honestly I lost my breath like I really did wow

...

Appellant: I'm lost and I'm found & smell like I sound ahahahaha

SEE YOU TOMORO PUSSY PRINCESS

LOLOLOLOL

MUHAHAHA

your gap is mine reowwwww!

[emoticon]

...

SS: My pussy looks better than that [emoticons]

Appellant: Show me

SS: I don't need to you already know what it looks like unless you forgot then when I'm with you, you can see it hehe shhhh

...

SS: Brb shower

Appellant: Wash your noony

SS: I will very well baby

...

Appellant: Do you have any idea how pink your bum hole is

Appellant: Ahahahahha

...

Appellant: Monday night missions

Tuesday look at all those chickens

Wednesday wishes

Thursday decisions

Pants off Friday

Sleep in Saturday

Sunday Sex.[38]

1. The sexually charged nature of these exchanges meant that, absent a specific direction from the trial judge, it was highly likely the jury would deploy the evidence to engage in tendency reasoning.
2. I am mindful of a number of authorities which have emphasised the heavy burden on an appellant to establish that, notwithstanding the position taken by trial counsel, there were nevertheless substantial and compelling reasons for a judge to have given a direction which was not requested.[39]
3. In Gul v The Queen[40] Ashley and Priest JJA rejected a contention that a conviction should be overturned on the ground that there were substantial and compelling reasons for the trial judge to have given a direction. Their Honours considered that there were sound forensic reasons why counsel had not sought a direction from the trial judge.[41]
4. In the present case, there was no sound forensic reason for defence counsel to have refrained from requesting a s 29 direction in respect of Exhibit B. Given the sexually charged nature of the text exchanges contained in Exhibit B there was a very high risk that the jury would engage in impermissible tendency reasoning to the effect that the appellant not only had a sexual interest for the complainant, but was prepared to act on that interest. It is not possible to discern any rational basis for distinguishing between the uncharged act evidence, which was the subject of a request by defence counsel for a s 29 direction, and Exhibit B, which was not.
5. There were substantial and compelling reasons for the trial judge to give a s 29 direction in respect of Exhibit B even though he was not requested to do so. His failure to do so has the consequence that the convictions in respect of charge 2, 3, 4, 5 and 6 cannot stand. However, for the reasons set out in the judgment of Weinberg and Priest JJA the position in respect of charge 1 is quite different. Conviction in respect of that charge was inevitable by reason of the specific admission contained in Exhibit B. There has been no miscarriage of justice in respect of the appellant's conviction in respect of charge 1.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant.

[2] Given that the conviction on charge 1 will stand, it will be necessary to make orders with respect to the appellant's sentence.

[3] R v Beserick (1993) 30 NSWLR 510, 515 (Hunt CJ at CL); R v Vonarx [1999] 3 VR 618, 622 [13] (Winneke P, Callaway JA and Southwell AJA).

[4] R v AH (1997) 42 NSWLR 702, 708-9 (Ireland J).

[5] Murdoch (a Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451, 474 [93] (Priest JA). Cf Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680, 709-10 [125]-[127] (Redlich, Weinberg and Coghlan JJA).

[6] R v AH (1997) 42 NSWLR 702, 708-9; R v Lock (1997) 91 A Crim R 356; R v Fordham (1997) 98 A Crim R 359, 367; Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, 233 [97]; R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536, 540-1 [24]-[26].

[7] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 624 [42] (French CJ, Hayne, Crennan and Kiefel JJ).

[8] For example, see Steadman v The Queen (No 1) [2013] NSWCCA 55, [10]; Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463, 487 [80].

[9] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 ('Leonard').

[10] Leonard, 556 [48]-[52] (emphasis added).

[11] R v AH (1997) 42 NSWLR 702.

[12] Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463.

[13] At [41]-[43] below.

[14] Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258.

[15] Otherwise referred to as a tendency warning or an anti-propensity warning.

[16] In our view, there were 'substantial and compelling reasons', within the meaning of that expression in s 16(1) of the JDA for giving a propensity direction, even if the direction had not been requested under s 12.

[18] See JDA, ss 11 and 12.

[19] JDA, s 14(1).

[20] JDA, s 29(2).

As to Ground 2 ... that I failed to give the requested s 29 anti-tendency jury direction in relation to Exhibit B (the text messages), I was not asked to give such a direction in relation to the texts and nor did I believe that it was necessary to give such a direction. There were not substantial and compelling reasons for doing so and I believe that adequate directions were given in other parts of the Charge dealing with those texts.

[22] Section 16(1) provides:

16 When trial judge must give direction regardless of parties' views

(1) The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

[24] See [18] above.

[25] R v Grech [1997] 2 VR 609, 612.

[26] R v Grech [1997] 2 VR 609, 614; R v Best [1998] 4 VR 603, 618; R v Macfie [2002] VSCA 51, [3]-[7] (Callaway JA), [18]-[19] (Buchanan JA); R v DCC [2004] VSCA 230; (2004) 11 VR 129, 131-2 [2]-[5]; R v BJC [2005] VSCA 154; (2005) 13 VR 407, 420-1 [37]-[40]; R v DD [2007] VSCA 317; (2007) 19 VR 143, 159 [60]; Murdoch (a Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451, 481 [129].

[28] Spelling, grammar and punctuation as in the original.

[29] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 480-1 [29]-[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) ('Baini'); Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85] ('Andelman').

[30] Baini, 479-80 [27]; Andelman, 677-8 [85].

[31] Toby Quinn (a pseudonym) v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 12 October 2017) [7]-[11] (citations omitted).

[32] [2013] VSCA 272; (2013) 40 VR 451, 474 [93].

[33] DPP v Martin (a pseudonym) [2016] VSCA 219 [106]; WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406, 412 [38]; Hothnyang v The Queen [2014] VSCA 64 [20]; Ashley v The Queen [2016] VSCA 246 [83].

[34] Not the same counsel who appeared in the appeal.

[35] See Judicial College of Victoria, Victorian Criminal Charge Book (at 14 March 2018) 4 Evidentiary Directions, 'Charge: Other Forms of Other Misconduct Evidence' [4.15.8].

[36] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 477 [18], 491 [58]; Theodoropoulos v The Queen (2015) 51 VR 1, 43 [164].

[38] Spelling, grammar and punctuation as in the original.

[39] Dunn (a pseudonym) v The Queen; Watts (a pseudonym) v The Queen [2017] VSCA 371 [6], [81]-[86]; Dunn (a pseudonym) v The Queen [2017] VSCA 95 [22].

[40] [2017] VSCA 153 ('Gul'). See also Ritchie (a pseudonym) v The Queen [2018] VSCA 31 [63].