R v D D [2005] VSCA 308

Court of Appeal (Vic)|2005-12-20|Before: CHARLES, BUCHANAN and EAMES, JJ.A.

Criminal law - Incest, indecent act in the presence of child under 16, indecent assault - Complainant making statutory declaration recanting her evidence, but later retracting statutory declaration - Other evidence - Verdict unsafe - Miscarriage of justice - Whether convictions should be quashed and, if so, whether judgment and verdict of acquittal should be entered or new trial directed.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 The applicant was presented in the County Court at Melbourne on 29 August 2000 for trial on 66 counts. All counts alleged sexual misconduct by the applicant against his stepdaughter RML over the period from July 1998 to March 1999, when she was 11 years old. He pleaded not guilty to all counts. The offences included 25 allegations of indecent assault, 26 allegations of incest, 14 counts of indecent act in the presence of a child under the age of 16 years, and one count of attempted incest. The relevant maximum penalties varied from imprisonment for 25 years for incest, to 10 years for indecent assault, and indecent act with a child under the age of 16 years.

2 The trial commenced on 31 August. Five witnesses were called by the Crown, RML, (the complainant), SL, (her sister), FL, (the complainant's mother), Dr Christine Sanderson, (who medically examined the complainant) and the informant Detective Senior Constable Bone. Also tendered were a VATE videotape of an interview conducted by the Geelong Community Policing Squad with the complainant, and a transcript of that interview, a tape recording of an interview between the applicant and the police, and an admission of fact.

3 At the conclusion of the complainant's evidence in chief, the judge raised concerns about the evidence on several counts. Before cross-examination commenced, the judge directed the jury to acquit the applicant on 11 counts, and the jury did so.

4 It was made clear by cross-examination and the record of interview, that the applicant's defence to each count was that the behaviour alleged simply did not occur. The jury ultimately returned verdicts of not guilty on a further 34 counts, but verdicts of guilty on the remaining 21 counts (counts 1-8, 46-47, 54-55 and 58-66). The counts on which the applicant was found guilty involved digital-vaginal penetration (counts 2, 5, 8, 47, 55, 58, 62, 64 and 66), attempted penile-vaginal penetration (count 59) and indecent assault or indecent acts (counts 1, 3, 4, 6, 7, 46, 54, 60, 61, 63 and 65).

5 On 12 September 2000 after passing individual sentences and making orders for cumulation, the judge imposed a total effective sentence of nine years' imprisonment and fixed a non-parole period of six years. The applicant has now served nearly five years and five months in custody.

6 In this judgment I shall refer throughout to the applicant as "the applicant" or DD, to the complainant as RML, and to her mother as FL.

The circumstances of the alleged offending

7 The offences were alleged to have been committed on RML between July 1998 and March 1999. Due to the length of time which has elapsed between the conviction and the making of the present application, a complete revised transcript of the trial proceedings is not now available. The transcript of the complainant's VATE videotaped interview conducted on 18 April 1999, and the transcript of her evidence at the applicant's committal on 27 August 1999 are, however, still available, and an incomplete trial transcript containing the evidence of the complainant, her mother and sister, the medical witness and the informant remains available.

8 The prosecution case was that the applicant lived with FL, who was his de facto wife, and her three children from a previous marriage. The applicant and FL conducted a business which involved selling children's plaster painting kits at various craft markets in Western Victoria. FL usually took the younger children with her to the markets closer to home. In respect of the Geelong Saturday market it was her practice to spend the preceding night at her sister's home in Geelong. If she went to the Point Lonsdale market, which occurred on every second Sunday, she stayed an additional night at Geelong. She followed this routine from Christmas 1998 until Christmas 1999. For a period she started leaving the children at home with the applicant. Over a sixth month period prior to April 1999 RML accompanied the applicant to markets which were further afield, because her mother had decided that RML was both old and experienced enough to become actively involved in selling their goods.

9 The first incident comprising counts 1, 2 and 3 allegedly took place in July 1998. RML said that on this occasion, while FL was away overnight, the applicant told RML that he was going to teach her about sex. The applicant allegedly directed RML to undress and put on a black nightgown, and produced some chocolate bodypaint. RML said he massaged her shoulders, undressed her, laid her on the kitchen table and painted her with the bodypaint. He then licked the bodypaint off her stomach, her chest, and her back and inserted his fingers into her vagina. RML said he took her into the shower where they showered together and that he masturbated in front of her to ejaculation. Guilty verdicts were returned on these three counts.

10 The second incident comprising counts 4, 5 and 6 was said to have occurred in October 1998 while FL was away overnight. RML said that the applicant undressed himself, painted chocolate bodypaint all over her and directed her to apply it onto him as well. He licked some of the chocolate bodypaint on her stomach, breasts and back. He inserted his finger into her vagina and afterwards they showered together and again the applicant masturbated to ejaculation in her presence. Guilty verdicts were returned on these three counts.

11 The third incident comprising counts 7 and 8 was alleged to have occurred between July and December 1998, during daytime while FL was out and prior to the arrival of a friend of the applicant called Gary. It was alleged that the applicant directed RML to put on the black nightgown, that he undressed her and directed her to lick his penis, which she refused to do. While RML lay on the couch, he licked her vagina and inserted his fingers into her vagina. Guilty verdicts were returned on these two counts.

12 Counts 9-38, 43 and 45, upon which the applicant was acquitted, were alleged to have occurred over a 10-week period on nights when FL stayed in Geelong to attend the Geelong market on the following day. It was alleged that on each occasion the applicant licked RML's vagina, inserted his finger into her vagina and then masturbated in her presence. The judge directed the jury to return verdicts of not guilty on some of these counts, and the others were returned by the jury's verdict.

13 Counts 39-42, 54-57 and 63-66 related to three occasions when the applicant took RML with him to Woodend on 17 January, 21 February and 21 March 1999. RML alleged that both on the way to Woodend and on the return trip, the applicant stopped the car by the roadside where he proceeded to assault her indecently by taking down her pants and licking her on the vagina, and then inserted his finger into her vagina. The jury returned verdicts of not guilty on counts 39-42, but guilty on the other counts.

14 Counts 46 and 47 took place on an occasion when the applicant took RML with him to Colac on Australia Day, 26 January 1999. RML alleged that at about 5 a.m. while driving to Colac, the applicant stopped the car in a remote location, stepped out of the car, walked around and opened the passenger door. He then pulled down her pants and put up her legs so that her feet touched the roof of the car. She claimed that he licked her vagina and inserted his finger into her vagina. Convictions were recorded on these two counts.

15 Counts 50-53, upon which the applicant was acquitted, involved allegations of repetitions of the conduct comprising counts 46 and 47 and were alleged to have been committed during the return journey from Colac on Australia Day.

16 Counts 58-60 related to an occasion when the applicant took RML with him to an annual festival at Laver's Hill on 28 February 1999. They left home very early in the morning. RML alleged that she was sleeping in the front seat of the car when the applicant allegedly pushed her clothing down and inserted his finger into her vagina. Before arriving in Colac, the applicant stopped the car. RML said that as there were too many other vehicles around, the applicant drove on to a more secluded and dark area where he again pulled down her lower clothing and attempted to insert his penis into her vagina. The applicant failed because RML resisted and pushed him away. RML claimed he again masturbated himself in her presence. Verdicts of guilty were returned on these counts.

17 Counts 61 and 62 were alleged to have occurred at home in March 1999, before the family went to the Bendigo Easter Festival and on to Echuca. RML's account of this offending was that she was in the children's lounge with the applicant when he undressed her and she was made to lie on an exercise machine. The applicant allegedly removed all his clothing, inserted his finger into her vagina and masturbated to ejaculation in her presence. Convictions were recorded on these two counts.

Evidence supporting RML's version of the offences

18 FL gave evidence that on the morning of 18 April 1999, she was due to go to the Ballarat market and the applicant was going to take RML with him to Woodend. She went into RML's room to tell her to hurry up and claimed that RML said "I don't want to go because he's been fondling me, touching me up". FL said she went into the lounge and told the applicant that RML was not coming with him. When he asked why, FL told him that "apparently" he "had been touching her up". FL said that the applicant responded that he was glad that "it was out in the open" and that it had been going on for a while. FL said that the applicant told her that it started on an occasion when FL was in Geelong. She alleged the applicant said he had had a few drinks and RML had consumed a stubby, and that it was all over now and he was glad that it was out in the open. FL allegedly said to the applicant that he was a very foolish man to which he replied "I know".

19 RML's sister, SL, was called to give evidence at the applicant's trial. Her evidence was not transcribed and the tape recording no longer exists. In the deposition materials in this matter, there is a statement by SL saying that she overheard part of the conversation between FL and RML on the morning of 18 April 1999 and part of the conversation between the applicant and FL before the applicant went to Woodend that day.

20 FL's evidence included that after the conversation with the applicant, she took RML to Geelong, and that during the trip RML proceeded to recount what the applicant had been doing. FL's evidence was generally confirmatory of the trips the family were alleged to have made. At Geelong RML was referred to the Geelong Community Policing Squad, where she participated in a VATE interview. She was subsequently examined by Dr Sanderson. After conducting a genital examination, Dr Sanderson found no abnormality for a post-pubertal girl. She said that this result did not exclude the possibility of past sexual abuse.

21 The applicant participated in an interview with the police on 18 April 1999. That is the very day on which FL confronted him with RML's allegations. In that interview the applicant denied all allegations of sexual offending. Some of the applicant's answers might, however, have been regarded by the jury as supporting the evidence both of RML and FL. For example, it was put to the applicant that earlier that day FL had put to him that he had been touching RML. The applicant said of this that FL "came out and said that [RML] said that I had been playing with her and she'd been playing with me". I said "Look we'll sort it out when I get home". He recalled having said something about having a beer with RML and that it had got out of hand. He said that when FL had been on a "Pokies trip", he and RML had drunk a few cans of beer together. He said that RML wore a see-through negligee and that he had massaged her on the shoulders but he had not done anything of a sexual nature. He said that this massaging had continued since then and "sort of became part of life".

22 FL's evidence also was that on the following day, 19 April, she was driving on the Hamilton Highway to Geelong. She saw the applicant's car go past her, but he made a U-turn and came up behind her. They then had a conversation at Eastern Beach. She said the applicant was very upset and said that he was sorry for what he had done. He admitted committing acts such as masturbating in front of RML, saying that he regarded RML as a smaller and younger version of FL. FL said that she and the applicant met and spoke on subsequent occasions. On one of those occasions she said the applicant told her that he had a psychological problem from his past, and wanted to see a psychiatrist and work out why he had done these things. She said he was very upset and apparently suicidal. She said that her association with the applicant continued thereafter, and that he never denied the conduct which he had admitted to her. She agreed in cross-examination that she had resumed a sexual relationship with the applicant after April 1999.

23 The defence case was a denial that the applicant had committed any of the offences alleged. He stood mute and did not call any evidence.

Subsequent proceedings by the applicant

24 The applicant initially sought leave to appeal by notice dated 25 September 2000 against sentence only, the sole ground being that the sentence was manifestly excessive. An application under s.582 of the Crimes Act 1958 for leave to appeal was dismissed by a single judge of this Court. A notice of election not having been received by the Court, the Registrar on 11 April 2001 ordered that the applicant's application for leave to appeal against sentence be dismissed.

25 On 4 March 2003 a notice of application for an extension of time in which to lodge an application for leave to appeal against conviction was filed, together with a supporting affidavit. The application was opposed by the Director of Public Prosecutions, and on 16 May 2003 the Registrar of this Court refused the application for an extension of time in which to lodge notice of application for leave to appeal against conviction. On 26 May the applicant filed a notice of election to have the application determined by three members of the Court. Then, on 22 October 2003 a letter was sent by the applicant's solicitors seeking an adjournment of the hearing which was to take place on 29 October. The reasons given were that legal aid had been applied for some time before but confirmation of funding had not then been received, and, secondly, the solicitors had been made aware, through the applicant's family, that further evidence was likely to come to light in the near future. The letter continued "Specifically, we have been advised that the complainant in the original trial wishes to withdraw her original complaint". The applicant and his legal advisers, however, made a conscious decision not then to proceed on the basis that RML had already recanted her evidence at trial or was likely to do so, but instead argued other perceived merits of his case. On 29 October 2003 this Court heard the applicant's applications for an extension of time to appeal against both conviction and sentence. On 30 October, the court gave judgment, dismissing both applications.[1] The court considered the bases upon which this Court will grant an application for an extension of time and followed the decisions of R. v. Darby[2]; and R. v. O'Keefe[3].

26 By notice dated 13 December 2004 the applicant made a further application for an extension of time within which to lodge notice of application for leave to appeal against conviction. The application was supported by a number of affidavits, and was opposed by the Crown relying on an affidavit of Adrian Mark Castle sworn 6 May 2005. On 10 May 2005 the Registrar refused this application for an extension of time, and by notice dated 16 May the applicant elected to have this further application determined by the court. On 11 August the Court of Appeal granted the applicant an extension of time to lodge notice of appeal against conviction and further affidavits were duly filed on behalf of the applicant and the Crown in relation to this application.

The complainant's recantation of her allegations

27 The principal basis of this new application for an extension of time is the fact that RML on 22 November 2003 made a statutory declaration in the following terms -

"I solemnly and sincerely declare that the statement I made years ago is false in the matter of [DD] v. The Queen where [DD] sexually assaulted me a number of times was all made up by my mother [FL]. She told me to go along with it because she would get money if I said what I said. I regret what I have done and I am doing everything in my power to get my word out and tell someone what really happend. My mum told me that if I said he sexually assaulted me She would get Money. I was eleven years old. I trusted her in what she said. I didn't know any better. I want to set the records strait that nothing happened between [DD] and myself. I apologise for everything that has happened."

The circumstances leading to the making of this statutory declaration are set out in an affidavit sworn by David Alec Langton on 10 February 2005. Mr Langton swore that on 17 September 2003 he received a telephone call from Stanka D, the ex-wife of the applicant, who said that RML had disclosed to her that the evidence she gave against the applicant at trial was untrue, and that she had apparently been influenced by her mother to give this evidence. Mr. Langton said that RML should be advised to obtain independent legal advice, and that she should attend a solicitor with a view to swearing an affidavit detailing the circumstances in which she gave her evidence and the reasons for now wishing to withdraw the allegations. He advised that Stanka D should not be involved in any such conference. Over the following weeks, Mr. Langton had further conversations with Stanka D, who said that she had assisted RML to approach a number of solicitors in Geelong as well as the police, but that all of these bodies had been either unwilling or unable to assist RML in making either a statement or an affidavit withdrawing her original allegations. Mr. Langton's affidavit included the following statement -

"On the 24th October 2003, I spoke with Daniela Lambarda of Ryan Carlisle Thomas Solicitors. Ms Lambarda advised that [RML] had attended a conference with her earlier that day. Ms Lambarda further stated that she had advised [RML] of the penalties relating to perjury and that upon hearing this [RML] had 'gone a bit pale'. [RML] had nevertheless continued to express interest in swearing an affidavit. Ms Lambarda lastly stated that in very general terms, [RML] had instructed that the applicant had sexually interfered with her, but not as often as she had alleged in her evidence at trial."

Mr Langton's affidavit continued that he was informed by Stanka D that there were ongoing difficulties in organising for RML to swear an affidavit, and he then recommended that she approach Marita Altman of Lethbridges Solicitors. On about 22 November 2003 Mr Langton was informed by Stanka D that RML had completed a statutory declaration stating that her allegations of sexual assault were untrue. In response, Mr Langton advised that whilst the statutory declaration was very significant it would be preferable to have a more detailed affidavit sworn by RML following advice from her solicitor. Mr Langton's affidavit continued -

"Over the following months I had a number of conversations with Ms Altman. Ms Altman generally advised that [RML] was somewhat unreliable and that she was having great difficulty in maintaining any type of contact with [RML]. However, she advised that [RML's] instructions were to the effect that, whilst some things did happen, it did not happen to the extent alleged by her at trial. She advised that [RML] had not spent sufficient time with her, or provided sufficient instructions to enable the swearing of a sufficiently detailed affidavit. Ms Altman advised that she gave [RML] the brief to take away with her so that she might examine it and identify what was true and what was not with a view to swearing an affidavit."

Mr Langton swore that he spoke with a number of members of the applicant's family in May 2004 who told him that [RML] had seemingly lost interest in pursuing the matter any further and they were not sure where she was currently living.

The retraction of the recantation

28 Before this application came on for hearing, investigations were made by the police of various matters alleged in the several affidavits sworn in support of this application. An affidavit sworn by Adrian Mark Castle on behalf of the Crown on 12 September 2005 deposes to the fact that RML had been located in Queensland and contacted by telephone. RML had said that she was willing to speak to the police and to make a statement. Accordingly two police officers spoke to RML in Queensland and obtained the following statement also made in the form of a statutory declaration as follows, substituting initials and first names in the case of members of the applicant's family -

"I was born on the 26th of April, 1987, and I am 18 years of age. I am employed as a carnival worker.

In April 1999, I was interviewed by police at the Geelong Community Policing Squad on video. The interview was about sexual assault that occurred between me and DD. DD was my step dad at the time.

In August, 1999, I gave evidence at the Geelong Magistrates Court about the contents of the video.

In September, 2000, I gave evidence at the Geelong County Court about what happened with DD.

On today's date, Tuesday the 16th of August, 2005, two detectives from the Victoria Police attended at the Exhibition Showgrounds in Brisbane where I am currently working. In the police rooms at the showgrounds I was shown three transcripts.

The first transcript was about the initial video interview I had with the police at the Geelong Community Policing Squad.

The second transcript was about the evidence I gave at the Geelong Magistrates Court in August, 1999.

The third transcript was about the evidence I gave at the Geelong County Court in September, 2000.

I am able to say that the contents of all three transcripts are true and correct accounts of what happened between me and DD.

I was also shown a copy of a statutory declaration made by me which was dated the 22nd of November, 2003.

In the statutory declaration I basically said that I made up the story about DD sexually assaulting me. I said that I made up the story because my mum, FL would get paid some money. I went on to say in the statutory declaration that I was really sorry about everything that happened.

The hand writing on the declaration is mine except for the part at the end where it says 'Declared at Werribee...'

At the time I made the declaration I was living at 10 Riverside Court, Werribee, with a chick named Rose. I was kind of homeless at the time.

Some time in 2003 I had a conversation with a Tabatha D in North Geelong. Tabatha D is the daughter of DD. She is about twenty two years of age.

I was babysitting my brother at my dad's house. Tabatha D said it would be easy to make a quick buck by making a stat dec to say that DD didn't sexually assault me. At the time I was really angry at my mum for kicking me out of home. Tabatha D said to blame the making up of everything about DD on my mum. The whole idea was to pretend that DD was falsely convicted so he would get money from the government. Tabatha D told me I would get twenty five percent of whatever DD would get. At the time I was really desperate for money. I had nothing. As far as I knew the whole thing was Tabatha D's idea.

Not long after the conversation with Tabatha D, a Stanka D started to take me to some solicitor's offices. Stanka D was married to DD's brother. I don't know the brothers name. Stanka D wanted me to see a solicitor to make an affidavit about what I discussed with Tabatha D I think we saw two or three solicitors. None of the solicitors would take the affidavit. I don't think they believed what I was saying. I can't really remember what we had discussed. One solicitor stated that they couldn't help me because they had helped my mum out and it was a conflict of interest. I was going along with Stanka D because I still though (sic) I might make some money out of it. I also wanted to try and get some legal advice about seeing my little sister, Josephine. At the time my mum wouldn't let me see Josephine. Mum had an intervention order on me.

Stanka D also took me to the Corio and Geelong Police Stations. The police weren't interested in anything Stanka D had to say. I had no intention of saying anything to the police any way. I was only going along because I felt pressured by Stanka D and Tabatha D.

Because no solicitor would help me with an affidavit I made the stat dec. Tabatha D gave me the blank form and I filled it out at Riverside Court. Tabatha D was telling me what to write. It is my signature but I can't recall signing the stat dec or going to the pharmacist to get it witnessed. I was drug fucked at the time. I was using eccies, speed and dope. Tabatha D took the stat dec from me. I had no idea what she did with it. The stat dec is dated the 22nd of November 2003, but I can't say if that is when I signed it.

In early 2004 Stanka D & Belinda D took me to a solicitor's office in Lonsdale Street, Melbourne. Belinda had married DD's son, Bradley. The solicitors name was Marita OLTMAN. I'm not one hundred percent about the spelling of her surname. We went there because Marita wanted to talk about the stat dec and Stanka still wanted to get an affidavit done. Once again I went because I wanted to get some advice about getting to see my little sister, Josephine.

Marita said that my story in the stat dec wasn't consistent. I don't know why she was saying it. I didn't want to tell Marita that I had made it all up because I was scared of Tabatha's family. It is a big family and I didn't want to tell the truth about the stat dec. Marita said to me straight out that she didn't believe the stat dec. I can sort of recall Marita telling me to try and remember which allegations were true and which were false and to let her know. Some time later I went back and saw Marita I couldn't tell her anything. I just wasn't interested anymore. I just wanted to try and see Josephine.

Later that day I was with Stanka out the front of my dad's house in North Geelong. Stanka was talking to DD on her mobile phone. DD had rung her. As far as I knew DD was at Ararat Prison doing time for my matters. Stanka told me that DD wanted to talk to me. I didn't want to talk to DD so Stanka held the phone to my ear. DD said he was sorry for sexually assaulting me. He then went on to say that if I went along with what I had written in the stat dec he would make it worth my while. I didn't say anything.

Since then I lived at Hamlyn Heights up until about February this year. I then got a job doing some shows in Victoria and eventually went with the work up to Queensland. The main reason I came to Queensland was to hide from the D family. I was scared of what would have happened if I didn't go along with the stat dec.

Just before my eighteenth birthday in 2005 Tabatha rang me. Tabatha said that if I don't go along with the stat dec she said they would use it against me. She said they would put me up for perjury. I told Tabatha to fuck off and leave me alone. I didn't want to get involved. A short time after this I changed my mobile number. I didn't want Tabatha or any of her family to be able to contact me.

I have never ever said to any member of the D family that DD did not assault me.

I have never ever said to any member of the D family that my mum wanted to get rid of DD. At the time of the assaults she was happy with him, they got along well...".

Additional affidavit material relied on as supporting the recantation by RML of her original allegations

29 A number of affidavits were sworn in support of the claim that RML had retracted her allegations against the applicant. Stanka D, the applicant's former wife, in an affidavit dated 5 November 2004 swore that in approximately September 2003 she spoke with RML on the telephone, and that RML stated that "DD didn't do it" and that she wanted to "try and fix things up". RML further stated that her mother had wanted to "get rid" of the applicant and as such pressured RML to give evidence against the applicant and had "put words in her mouth" and Stanka D stated that RML said she did not know how to go about withdrawing her allegations. Stanka D said that on 30 September 2003 she and RML went to the Geelong police station. She said that whilst travelling to the station in the car RML repeated that the applicant "didn't do anything". She further spoke of her mother "wanting the money and getting him out of the way". Stanka D said she waited in her car while RML entered the police station. RML later returned saying that the police were not able to assist her in making any further statement. Stanka D said they drove directly to the Corio police station where they spoke with a police officer behind the counter. The police were not willing to take a statement from RML until they had had an opportunity to speak to the informant, who was on leave. Stanka D said she took RML to the Geelong office of Legal Aid, which declined to assist because they were already acting for RML's mother. Stanka D swore that on 24 October RML went to Ryan Carlile Thomas, solicitors in Werribee. Stanka D swore that after the conference RML stated that she was told that she should "leave one or two counts on DD for her own safety or she could be up for perjury". RML allegedly further stated that she was going to say that the applicant "did something" because she "didn't want to be questioned why it all started in the first place".

30 DFG, the sister of the applicant, swore an affidavit on 8 November 2004 saying that on 18 November 2003, she had a conversation with RML in the lounge room of Tabatha D's house. RML at this time stated that the applicant "didn't do anything" and further stated that she was "going to do everything she could to get him out". In approximately June 2004 Tabatha D and DFG took RML to lunch in order to see if she still wished to withdraw the allegations she had made against the applicant. RML indicated that she did wish to do so, but offered a number of reasons why she had not returned to the solicitors, Lethbridges, in order to provide further instructions.

31 Bradley D, the applicant's son, swore an affidavit dated 5 November 2004 in which he set out the circumstances in which RML completed the statutory declaration withdrawing the allegations against the applicant. Bradley D swore that he did not place any pressure on RML, nor was he aware of any other person placing pressure on her to make the statutory declaration.

32 Belinda D, the applicant's daughter-in-law (married to his son Bradley) swore an affidavit saying that at some time in 2004 she drove RML and Stanka D to Melbourne so that RML could attend an appointment with Lethbridges, for the purpose of swearing an affidavit withdrawing the allegations against the applicant. Belinda D swore that RML then had an amount of paperwork in a folder. Belinda D said RML was complaining that she had to examine all of the paperwork in order to identify which of her allegations were true and which were false. Belinda D said she advised RML to go through the paperwork "bit by bit" until it was finished. RML expressed a belief that she had to leave at least one of her original allegations remaining. Belinda D said that at this point she said to RML "Well did he do it anyway?". RML replied "No" and then laughed slightly. Belinda D said RML appeared to be treating the whole process as something of a joke.

33 Tabatha D, the applicant's daughter, swore an affidavit on 5 November 2004 in which she said that on 8 October 2003 RML was asked to leave her mother's home. She subsequently lived with her father for a short time. Tabatha D said that at this point she offered RML accommodation at her home and RML duly came to live with her. Tabatha D said that during the time they lived together RML and she spoke a great deal about their extended family and about the allegations RML had made against the applicant. Tabatha D swore -

"Approximately a week after [RML] came to live with me, we were at home and generally discussing the applicant and our grandfather. At this point [RML] stated words similar to 'I went along with it but nothing happened. I thought I had to go along with it because I knew I would get into trouble. I am going to do everything I can to help.'"

Tabatha D said that throughout the time RML lived at her home, she generally expressed the view that her mother had pressured her to make the allegations against the applicant and that she had since realised that her mother had been extremely manipulative of her.

34 Elspeth Janet Matthews-Williamson, a long-time family friend of the applicant, swore an affidavit on 17 February 2005. Ms Matthews-Williamson had spent a considerable time at the house of DFG (the applicant's sister) during which time she became aware that RML wished to see a solicitor in Melbourne with a view to withdrawing the allegations that she had made at trial against the applicant. She said that she was aware that RML did not wish Stanka D to accompany her to the appointment with the solicitor due to personal differences. Ms Matthews-Williamson said she had known RML since she was a small child and offered to accompany her. In her affidavit Ms Matthews-Williamson swore -

"We then attended a conference with Ms Marita Altman. Throughout the conference [RML] was generally having difficulty in focussing. She frequently referred to her mother [FL] having an intervention order against her, which she apparently proposed to extend, which would prohibit her from seeing her younger sisters. Ms Altman explained that this was a separate matter and directed her attention to paperwork that had previously been provided to her. Ms Altman asked [RML] if she had examined the paperwork being transcripts of her statement to police and evidence in court. [RML] replied that she had done so. Ms Altman asked where the paperwork was. [RML] generally expressed the view that she couldn't see the point in 'dragging out' the process. She expressed the view that if she had already said the accused had done nothing to her, then that should be the end of the matter. The conference ended with Ms Altman asking for the transcripts alongside handwritten notes about which of her allegations were true, and which were false. [RML] assured Ms Altman that she had examined all relevant paperwork and made the necessary notes. Ms Altman asked 'When can you get it for me?'. [RML] replied that she could send it to Ms Altman via facsimile the following week. I had difficulty believing this, because I was aware that there was a large amount of paperwork which would be almost impossible to send via facsimile."

Ms Matthews-Williamson said that as soon as they left the conference, RML laughed and said that in reality she had not examined any of the relevant paperwork. Throughout the conference she said she gained the impression that RML seemed to have no comprehension about why she had to go through the necessary process.

Further material following RML's withdrawal of her recantation

35 In response to the contents of the statutory declaration made by RML on 16 August 2005, Stanka D made a further affidavit on 28 September 2005. In this affidavit Stanka D swore that she never put any pressure on RML. When she saw her, the statutory declaration had already been completed. RML rang her and said she had the statutory declaration completed and asked Stanka D what she should do. She and Bradley D took RML to a chemist in Werribee. RML asked for a witness and then signed the statutory declaration in front of a female pharmacist. Stanka D said that at that time RML appeared perfectly fine and not under the influence of any drugs. Stanka D said that RML told her that she (RML) was alone in the house and that Tabatha D was not there.

36 Stanka D referred to the visit she made with Belinda D and RML to the offices of the solicitors, Gerard Lethbridge & Associates. Her version of what happened after the visit to the solicitors was as follows -

"[RML] asked to be dropped off at her father's house. We were parked out the front of those premises. [RML] kept talking to me. I knew that [DD] was due to call me from prison as it was a Wednesday. The phone rang and I turned it off. [RML] asked me who had called and I said it was [DD]. I told her that I didn't want her in the car whilst I was talking to [DD]. She said that it was okay, that she didn't mind. The phone rang again and I said 'It's [DD]. Can you get out?'. She said 'No, you can answer it'. I answered the call, it was [DD]. I asked him if he could call back later as I with [RML]. She asked in a loud voice whether she could speak to [DD] and she yelled out a greeting to [DD]. I said no. [DD] also heard her speaking and said 'I don't want to speak to her'. [RML] also asked whether she could go and visit [DD]. I said goodbye to [DD] and turned the phone off. [RML] also said 'See ya' in a really loud voice. After the conclusion of the telephone call she asked if she could visit [DD] after the phone call and I refused. I am aware that all of the phone calls from Prison are tape recorded and the contents of the alleged confession by [DD] would be tape recorded. I deny that I told [RML] that [DD] wanted to talk to her and deny that I held the phone to her ear."

Later in this affidavit, Stanka D said that RML told her that DD never assaulted her. She said that RML told her that her mother wanted to get rid of DD and that "her mum was after money and thought she could make a claim from the allegations that [RML] was making."

The arguments of the applicant

37 Mr Priest for the applicant submitted that the evidence of the retraction contained in the supporting affidavits is fresh evidence, which was not available to the applicant at the time of trial and could not have been available irrespective of the exercise of due diligence. He argued that if the fresh evidence is credible or capable of belief, and if it raises a significant possibility that the jury acting reasonably would have acquitted if the evidence had been before it at the trial, then a miscarriage of justice has occurred and the convictions should be set aside.

38 The argument continued that a retraction by a central witness in a criminal trial is a matter of great moment. The fresh evidence here concerned not just a central witness, but the only witness of the alleged incidents. Mr Priest put it that the evidence would have been especially powerful in the minds of the jury in the present case given that RML made the allegations of sexual offending when she was only eleven years old, there was no corroboration, the applicant denied the allegations, the complainant was cross-examined at trial on the basis that none of the allegations were true, and the jury at trial acquitted the applicant of 45 of the 66 counts laid, on 34 counts by ordinary verdict. He argued that the fresh evidence revealed both total and qualified recantations (although some of the qualified recantations are based on hearsay).

The relevant law

39 Counsel for the applicant and the Crown in this Court both accepted that the relevant law had been correctly set out in The Queen v. AHK[4] by Winneke, P. as follows -

"Where in this State the Court of Appeal is asked to set aside a conviction pursuant to s.568(1) of the Crimes Act 1958 on the grounds of 'fresh evidence', and where (as in my opinion is the case here) there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the 'fresh evidence' was not adduced at the trial. The fundamental question for the Court, in each such case, is whether it perceives that a miscarriage of justice has occurred.[5] In answering this question authorities binding on this Court have laid down three general considerations which should guide the court in coming to its conclusion. The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial. The second and third considerations, which are inter-related, are that the 'fresh evidence' is apparently credible or plausible or, at least, capable of belief and, in the view of the court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court considers that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial' (per Mason and Dean, JJ., Gallagher v. R. (supra) at 402). It is in respect of these last considerations that there has been, over the years, some difference of judicial opinion although it was the test adopted by this Court (albeit with a qualification) in R. v. Nguyen & Tran[6]. However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive "fresh evidence" if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand[7].

In this case the 'fresh evidence' which the Court is asked to accept and rely upon is of a different character from that which an appellate court is commonly asked to consider; namely evidence from a witness not available at trial whose evidence is apparently relevant, plausible and cogent and which, if available to the jury in the context of the other evidence which they had before them, might reasonably have led them to a different result or, put another way, leads an appellate court to the view that there is a distinct possibility that the jury would have acquitted if such evidence had been available. The evidence with which this Court is confronted is evidence of a different kind; namely evidence of a recantation by the Crown's principal witness of significant parts of the evidence which she gave at the trial. Although evidence of this sort has been treated by the courts as a species of fresh evidence, the courts have treated it as "fresh evidence" in respect of which the ordinary tests cannot be applied without qualification.[8] The reasons, enunciated by the courts, for the qualification are clear. If appellate courts were to act without extreme caution upon a declaration by a witness that he has committed perjury at trial "the whole administration of both civil and criminal justice would be undermined".[9] Furthermore, the fact that a witness, following the trial, has given a new version of events might show that he or she is 'now unreliable' but 'it is a fallacy to assume from this that he (or she) was also unreliable at the trial. Witnesses may have second thoughts "for a variety of different reasons'.[10] However, as the courts have been at pains to point out, every case must depend upon its own facts but much depends upon the reason or reasons assigned by the witness for having recanted his or her testimony. Much also depends upon the significance of the witness's evidence given at trial and whether the other evidence, not impugned, supported the conviction."

40 Winneke, P. went on to consider various cases where appellate courts had applied these principles in different ways, such as R. v. Flower[11], where the court declined to act on the witness's recantation, regarding it as unreliable, particularly in light of the absence of any acceptable explanation for the change in story. An example of the contrary is R. v. Geesing[12], where all members of the court came to the conclusion that although the recanting witness was "unreliable and untrustworthy", they were left with "serious misgivings about the truthfulness of the evidence" which he gave at trial and that there was a serious risk that the witness's evidence at the trial was false.

41 In AHK the court concluded that the evidence of the recantation, being "fresh evidence", was credible and that the jury at trial acting reasonably might have entertained a reasonable doubt about the guilt of the applicant, and accordingly that the jury's verdict on the relevant counts should be set aside and a re-trial ordered.

42 A different result was arrived at in the recent Petition for Mercy, In the Matter of GAM[13] where the petitioner had been found guilty of numerous offences against his step-daughter, who was aged 13 at the time of the alleged offences. The fresh evidence in this case again came in the form of a statutory declaration made on 27 January 2004. This recantation was, however, withdrawn by the complainant only a week later on 4 February 2004 in a second statement which the court concluded carried conviction. Callaway, J.A. said[14] that -

"All the material supports the view that the statutory declaration was made at the complainant's mother's suggestion and that its purpose was to enable the petitioner to come home. I do not consider that a statutory declaration, made for that purpose and promptly and convincingly recanted, has sufficient cogency, in the circumstances of this case, to warrant a new trial. In particular, on the whole of the evidence, I am not persuaded that there has been a miscarriage of justice within the meaning of s.568(1) of the Crimes Act."

The Crown's arguments

43 Mrs Quin for the Crown submitted that the "fresh evidence" would not necessarily have altered the jury's view of the credit of the complainant to such an extent that the jury would reject her evidence when considered with all the other evidence in the trial. She submitted, correctly, that all the fresh evidence would have to be assessed having regard to the evidence that was given at the trial including the VATE tape and cross-examination of the complainant and evidence of the complainant's mother FL. She noted that the applicant had participated in a record of interview but stood mute at the trial. The question remained therefore whether the fresh evidence was sufficiently relevant, cogent and plausible to raise a doubt as to the applicant's guilt in the circumstances.

44 Reliance was placed on the circumstances of the making of the recantation. It was argued that at the time of making the recantation, the complainant, then aged 16, was virtually homeless and in need of money. She had had a falling out with her mother and was reliant on members of the applicant's family for accommodation. The recantation involved implicating the complainant's mother in the making of the initial allegations. At the time of the recantation the complainant was extremely angry at her mother. The complainant also maintained that at the time of the making of the recantation she was promised financial reward.

45 The recantation had not been retracted for nearly 21 months. Attempts had been made by members of the applicant's family and friends to have the complainant formalise the recantation in the presence of an independent third party apparently throughout 2004, but this had not happened. No attempt had been made by the applicant to rely on the statutory declaration in any formal proceedings until December 2004. This delay had occurred even though the material filed on behalf of the applicant suggested that the complainant had spoken to various members of the applicant's family about retracting these allegations even prior to the hearing by this Court on 29 October 2003 of the application for an extension of time.

46 Mrs Quin argued that the case against the applicant depended principally on the complainant's evidence, but that there was also evidence from the complainant's mother which amounted to admissions made by the applicant. FL's evidence, it was argued, was that the applicant admitted to her carrying out the sexual behaviour alleged by the complainant and that he was sorry. Her evidence was that the applicant said to her that he viewed the complainant as a smaller version of her, dressing in her clothes. He had also admitted in his record of interview to an occasion when he and RML were drinking beer and she was dressed in her mother's nightwear and things "got out of hand". Mrs Quin submitted that the different findings of the jury in relation to the various counts on the presentment were explicable by a careful analysis of the complainant's evidence and the lack of detail that she was able to provide in her evidence in relation to some of the counts.

47 Next it was argued that it would be necessary for the Court to make a finding that the complainant was "completely untrustworthy" before allowing the appeal, and that such a description did not fit the complainant's evidence. Mrs Quin accepted that the credit of the complainant may have been challenged more forcefully by the applicant's counsel at the trial on the basis of the new evidence, but submitted that the fresh evidence when considered with the other evidence in the trial was not such as to warrant the view that there was a significant possibility that the jury would have reached a different result.

Conclusion

48 On all this material Mr Priest submitted that there was a real risk that an innocent man had been convicted, and that the complainant has been found to be so unreliable that verdicts of acquittal should be entered. But, as Widgery, J. said in R. v. Flower[15]:

"If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness's state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness's account in this court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony."

The difficulty expressed in this paragraph was shared by the members of this Court in GAM[16].

49 RML's recantation of her testimony may possibly have been the result of pressure exerted on her by members of the applicant's family. Her later withdrawal of that recantation includes suggestions that various considerations may have operated on RML to make the statutory declaration in which she withdrew her trial evidence. In her statement of 16 August 2005, she said that she "felt pressured by Stanka and Tabatha", that she was really angry at her mother for kicking her out of home, that she thought she could make some easy money out of doing so at a time when she was really desperate for money, that Tabatha was telling her what to write, that she could not recall signing the statutory declaration or going to the pharmacist to get it witnessed because she was "drug fucked" at the time, using "eccies, speed and dope" and also that she was scared of Tabatha's family. Furthermore, RML's evidence at trial by no means stood alone. It was supported both by FL's evidence and, to an extent, by the admissions of the applicant in his police record of interview, even though he vigorously denied committing any sexual offence upon RML.

50 RML's recantation was made in her own words and handwriting, although she later said that Tabatha was telling her what to write. RML's recanting words claim that her evidence was all made up by her mother who wanted money and, it was later suggested, to get rid of the applicant. The possibility that RML was subjected to pressure by both Stanka and Tabatha at the time she made the statutory declaration is not to be discounted, although both have denied applying any such pressure in their affidavits.

51 Thereafter, however, some 21 months elapsed before the recantation was itself retracted. The intervening period is very substantial. The length of this period marks out a real and significant difference between the present case and GAM, where the recantation was retracted only a week after it was made. The affidavit evidence demonstrates a substantial number of attempts over a period of months to translate the making of the statutory declaration into affidavit form, by visits to the offices of a number of different solicitors. One obvious explanation for the repeated failures of these attempts was that RML had been warned that if she withdrew all her allegations against the applicant, she might be charged with perjury, an offence which usually carries a gaol sentence. On numerous occasions thereafter, RML is alleged to have said that the applicant did some, but not all, of what she had claimed at his trial, and that although he had sexually interfered with her, he had not done so as often as she had alleged. Admissions by RML that her evidence was either all untrue or exaggerated are to be found in the affidavits of not less than five deponents, and in Mr Langton's affidavit by hearsay from two different solicitors who had spoken to RML.

52 In the result I am left, as was Winneke, P. in AHK[17], in a state of considerable unease as to the applicant's convictions. There is now a substantial body of evidence (emanating, no doubt, largely from members of the applicant's family and his friends) which makes a considerable case at least that while the applicant may have interfered sexually with RML, he did not do so as often as she claimed in her evidence. This would also be consistent with the applicant's police record of interview, which conceded some sexual misbehaviour with RML but vigorously denied any of the more serious allegations against him (such as digital penetration, or the licking of RML's vagina) made by RML. Relevant in this respect also is the fact that although RML in her statement of 16 August 2005 denies that she ever said to any member of DD's family that DD did not assault her, she makes no mention of her conversations with either Daniela Lambarda of Ryan Carlisle Thomas, or Marita Altman of Lethbridges. Both solicitors had, according to Mr Langton, informed him that RML had said that DD had not interfered with her as often as she had alleged at trial. Mr Castle's affidavit of 12 September 2005 included the statement that when the Victoria Police were asked to investigate RML's retraction of her trial evidence, copies of all the applicant's affidavit evidence (which presumably must have included Mr Langton's affidavit) were supplied to them. It is therefore significant that although RML denies the oral recantations allegedly made to members of DD's family, she does not deny the partial recantations allegedly made to the two solicitors. On the contrary, RML's description of her meeting and discussion with Marita Altman confirms that RML probably said to her that some of her evidence was false, since she recalled "Marita telling me to try and remember which allegations were true and which were false and to let her know."

53 The retraction by RML of her recantation also includes a claim, strongly denied by Stanka D, that there was a conversation by mobile telephone between RML and the applicant, the latter then being in Ararat Prison. RML claimed that the applicant said he was sorry for sexually assaulting her. I have considerable reservations as to this aspect of RML's statement of 16 August 2005. I should have thought it highly unlikely that the applicant would have spoken thus or to RML at all, she being the person whose evidence put him in prison, or that he would have apologised for his behaviour. The version given by Stanka D to me rings more true than that of RML.

54 My sense of unease was made the greater by the fact that RML's recantation was left standing for 21 months and supported both by corroborative statements made to several members of DD's family and to two solicitors, and her visits to various solicitors' offices to convert the declaration into affidavit form.

55 While these proceedings do not, of course, amount to a retrial, it is to be observed that no affidavit was tendered from FL to answer the very serious allegation made against her that she had, in effect, conspired with RML to pervert the course of justice. The statements of RML in her retraction of her recantation concede that for a considerable time after the making of the statutory declaration she was, it would seem, willingly visiting the offices of solicitors for the purpose of converting the statements in her statutory declaration into affidavit form. Nor was there any denial on the part of the Crown of the assertion made by Stanka D that all calls from prison are taped, an assertion which, if true, must have been known both to the applicant and Stanka D and which would have made it even more unlikely that he would have confessed to sexually assaulting RML at a time when he must have known that his family members were making endeavours to appeal against his conviction on the ground that false evidence had been given against him.

56 If all this material had been before the jury, the jury might, in my view, reasonably have been led to a different result, or, as it was put by Winneke, P. in AHK[18] there is a distinct possibility that the jury would have acquitted if such evidence had been available.

57 It follows that I think a miscarriage of justice has been established and that the convictions of the applicant must be set aside. We were asked by Mr Priest then to enter verdicts of acquittal. I do not agree. I have no doubt that there was evidence before the jury which, at the time, entitled the jury to convict the applicant. It follows that it is a question for the Director of Public Prosecutions now to decide whether the applicant should be retried on the counts on which he was convicted.[19]

59 For the reasons given in his judgment, I agree with Charles, J.A. that the convictions should be set aside. I also agree that a new trial should be ordered, rather than verdicts of acquittal being entered by this Court.

[1] [2003] VSCA 173; [2003] 6 V.R. 538.

[2] Unreported, Gowans, J., 2 May 1975.

[3] [1979] VicRp 1; [1979] V.R. 1.

[4] [2001] VSCA 220 at [8] and [9].

[5] cf. Gallagher v. R. [1986] HCA 26; (1986) 160 C.L.R. 392 at 395 per Gibbs, C.J.

[6] [1998] 4 V.R. 394 at 400-401 per Kenny, J.A.

[7] See R. v. McIntee (1985) 38 S.A.S.R. 432 at 435 per King, C.J.

[8] Davies & Cody v. The King [1937] HCA 27; (1937) 57 C.L.R. 170 at 183-4; R. v. Flower [1966] 1 Q.B. 146 at 150-151; R. v. Poulter (1978) 19 S.A.S.R. 370 at 376; R. v. Geesing (1985) 38 S.A.S.R. 226 at 230.

[9] cf. Davies & Cody v. The King, supra, at 183-4.

[10] R. v. Flower, supra, per Widgery, J. at 150.

[11] [1966] 1 Q.B. 146.

[12] (1985) 38 S.A.S.R. 226.

[13] [2005] VSCA 234, decided 29 September 2005.

[14] [2005] VSCA 234 at [39].

[15] [1966] 1 Q.B. 146 at 150-151.

[16] [2005] VSCA 234 per Callaway, J.A., at [28], and per Chernov, J.A. at [44].

[17] [2001] VSCA 220 at [10].

[18] [2001] VSCA 220 at [9].

[19] Dyers v. The Queen (2002) 210 C.L.R. 285 at 297 per Gaudron & Hayne JJ., at 317 per Kirby, J.

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties