R v Gell [2006] VSCA 255

"1. The trial miscarried by reason of the trial judge's having failed properly or at all to direct the jury against engaging in impermissible propensity reasoning. In particular, the judge erred by failing adequately or at all to direct that, were the jury to find that the applicant had engaged in sexual conduct with the complainant:

(a) [J] on one or more occasions; and/or

(b) [K] on the alleged occasion

they must not reason that he was the kind of person who was likely to have committed the offence the subject of their separate consideration.

2. The trial miscarried by reason of the prosecutor's cross-examination of the applicant on the issue of whether the complainants were 'lying' and the trial judge's having failed properly to direct the jury on the law following their question: 'Can you tell us a reason why [the complainant] would make up these allegations and put herself through this hardship if it were not true?' In particular, the learned judge erred by, inter alia, failing to direct that:

(a) the applicant was not required to prove his innocence or anything else;

(b) the applicant was not required to prove a motive for what was said to be a false charge;

and

(c) it was unfair to expect him to do so and to ask of him whether one or more of the complainants had lied.

3. The trial miscarried as a consequence of the trial judge's having failed properly to direct the jury on its use of complaint evidence and the delay in its being made. In particular, the learned judge erred by, inter alia, not directing that:

(a) evidence of complaint was admitted only for their consideration to throw light on the credibility of the complainant;

(b) it does not provide evidence of the facts stated in the complaint or to the truth thereof;

(c) the jury must consider whether and, if so how, the complaint or delay in its having been made might go to show how the complainant reacted in a manner which might be expected of her if she had been subjected to the acts of the nature alleged; and

(d) any delay, if accepted by the jury, could be taken into account in assessing the credibility of the complainant and to cast doubt upon the reliability of the evidence given by her.

4. The trial miscarried by reason of the learned trial judge's having failed properly to direct the jury on the good character of the applicant. In particular the learned judge erred by, inter alia, failing to direct that, subject to their assessment of the entirety of the trial's evidence, the jury could nevertheless use the applicant's good character as evidence of:

(a) his being less likely to have committed the offences alleged against him; and

(b) his being more likely to have given truthful evidence.

5. The trial miscarried by reason of the trial judge's having failed properly or at all to direct the jury against their impermissibly reasoning that the determination of the applicant's guilt turned solely on a determination of who (between the applicant and the complainants) they chose to believe.

In particular, the learned judge erred by not directing that:

(a) even if they prefer the evidence of the prosecution, they must not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence;

(b) even if they do not positively believe the evidence of the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

6. The trial's miscarriage was further contributed to by the judge's repeatedly directing the jury that counts 3 to 7 alleged the offence of 'rape'.

7. The trial miscarried as a consequence of the cumulation of some or all of the errors and matters alleged in grounds 1 to 6."

(Transcript references omitted.)

5 In my opinion, ground 7 should be upheld. It is unnecessary to decide whether any of the other grounds would have been sufficient in itself.

6 That ground does not mean that "several nothings make a something". It means that there were several errors or irregularities, none of which may have been sufficient in itself, but which taken together amounted to a miscarriage of justice within the meaning of those words in the opening part of s.568(1) of the Crimes Act 1958. The law on the subject was lucidly explained by Batt, J.A. in R. v. Kotzmann[1]. Another case where an aggregation of errors ground succeeded is R. v. Glennon (No. 3).[2] I turn to consider the errors and irregularities that support ground 7.

Cross-examination and jury question

7 The applicant gave sworn evidence at the trial. The cross-examination began as follows:

"[PROSECUTOR]: Mr Gell, I'm going to state something remarkable here. There is nothing that I can say to you and no question that I can ask you that will have you make an admission that you have sexually offended against either or both [J] and [K], is there? --- No.

So that means, doesn't it, that these proceedings are starkly black and white; that they say, they being [J] and [K], that you have sexually offended against them, they have described it before this jury what they say took place, and you deny that absolutely? --- Absolutely.

There is no half measure in there, is there? --- No.

So someone is lying? --- Obviously.

[DEFENCE COUNSEL]: Your Honour, can I say with regard to this line of cross-examination, it's not for one witness to make a comment as to what is in the mind of another witness. Whether somebody is lying, mistaken, deluded, fantasising, who knows? It's really not for him to say.

HIS HONOUR: I think you're anticipating a question. He hasn't asked that question.

[DEFENCE COUNSEL]: Well, the previous question, put as it was, was somebody is lying.

HIS HONOUR: Yes, but he's putting an assertion; he can put that."

8 Counsel's objection was well founded. An accused person cannot be asked whether, in his opinion, a prosecution witness is lying.[3] His opinion is irrelevant, the question invites him to speculate and the potential for prejudice is considerable.

9 Within a few minutes the jury intimated that they wished to ask a question. The judge told them that any questions should be put at the conclusion of the accused's evidence. The terms of a jury question, probably the same question, were revealed shortly thereafter during a break in the cross-examination. The question was this:

"Can you tell us a reason why [J] would make up these allegations, and put herself through this hardship, if it's not true? Just one reason."

10 Defence counsel said that the problem could be dealt with by a reminder concerning the onus of proof. That was not correct. A good deal more would have been required, assuming that the damage could be repaired.[4] Counsel did later expand his request for a direction, but it still did not cover all the points that needed to be addressed. The direction that was given did little more than reiterate the burden of proof and warn the jury not to speculate.

11 Although the prosecutor had not asked expressly why [J] would lie, that question had now been asked by the jury. It was problematic for at least four reasons: first, it showed that the jury were tempted to speculate; secondly, it was unfair to the applicant, who was not in a position to see into the mind of the complainant; thirdly, it was calculated to undermine the onus of proof; and, fourthly, the fact that an accused person cannot suggest a motive for the complainant to lie is generally irrelevant.[5]

12 In addition to the objectionable character of counsel's questions at the start of the cross-examination and the impermissibility of the jury's train of thought, the questions counsel asked were also likely to lead to the problem identified in ground 5, on which Mr Kassimatis relied as one of the particulars of ground 7.

Other errors and irregularities

13 Mr Kassimatis rightly submitted that the foregoing was the strongest part of his case, but it is necessary to mention three other matters that arose in the course of the trial.

14 First, because there were two complainants, it was necessary not only to give a separate consideration direction but to warn the jury against propensity reasoning. The law on that subject goes back to R. v. T[6] and beyond. It became of greater importance following the amendments to s.372 of the Crimes Act, pursuant to which severance is ordered much less frequently than used to be the case. I pointed that out in R. v. TJB[7]. Phillips, C.J. concurred in my judgment and Buchanan, J.A., who also concurred, emphasised that point.[8] See also R. v. DCC[9] and R. v. BO[10].

15 The judge gave an unembellished separate consideration direction. Nothing was said that could amount to a warning not to reason that, if the applicant was guilty of an offence against one of the complainants, he was the kind of person who was likely to have offended against the other complainant. The redeeming feature may have been that the jury acquitted the applicant on the sole count relating to K. For that reason, if for no other, this point might not have succeeded on its own.

16 Secondly, evidence was elicited on behalf of the applicant that he had no previous convictions. The judge gave the following direction on the subject of good character:

"There is evidence that the accused man is a person of good character. There are no prior convictions against him, and that is a matter that you should take into consideration in considering him, in considering his evidence and in considering the truthfulness of his evidence. There is no suggestion that he has offended in any way in the past and so that, if you like, strengthens his presumption of innocence. That does not mean that he has not committed these offences but it does mean that you are dealing with someone who starts off with a clean sheet and that stands in his favour."

17 Again, the ground impugning that direction might not have succeeded on its own. There may have been a question whether a character direction was obligatory in this case.[11] The direction that was given did identify the two ways in which good character may be relevant but said very little about either of them. It fell short of the usual direction.

18 Thirdly, in the course of the charge, the learned judge referred to counts 3, 4, 5, 6 and 7 as counts of "rape". When defence counsel took exception, the judge at first asked what was wrong with what he had said. His Honour then said that sexual penetration of a child under 16 was rape, that the penalty was the same and that it was the same section. With respect, all of that is mistaken. Taking part in an act of sexual penetration with a child under 16, like its predecessor, carnal knowledge, is a significantly different offence from rape. The sections are different and the penalties are 10 years' imprisonment in comparison with 25 years' imprisonment.[12] Both are serious offences, but rape carries even greater social stigma.

19 The judge did agree to redirect, but the redirection was coloured by his Honour's misapprehension. He said:

"Finally, you will notice I used the word 'rape' and I used it rather loosely. The counts of sexual penetration on the presentment describe the offence and that is probably how I should have described it to you more properly, as taking part in an act of sexual penetration, but I used the abbreviated term. It does involve the same elements, of course, except, as I have already said to you, where an alleged victim is under the age of 16 years then consent is not a defence. Where you see the words 'took part in an act of sexual penetration' those are the counts which I, in an abridged way, called 'rape', but those are the counts that I was referring to."

20 This ground would probably not have succeeded on its own, but it added an element of prejudice to a trial that had already gone wrong as a result of the prosecutor's questions at the start of his cross-examination and the failure of the judge to rule those questions inadmissible and to give the jury a full and detailed explanation as to why the questions were unfair and why their own question was misconceived.

22 The reasons of Callaway J.A, which I have had the advantage of reading in draft, explain why I joined in the orders made on 21 November this year.

[1] [1999] VSCA 27; [1999] 2 V.R. 123 at 157 [114].

[2] [2005] VSCA 262; (2005) 12 V.R. 421. See especially 427 [18].

[3] R. v. Cupid [2004] VSCA 183 at [36]; R. v. Buckley [2004] VSCA 185; (2004) 10 V.R. 215 at 217 [8] - [20]; and R. v. Bajic [2005] VSCA 158; (2005) 12 V.R. 155 at 169 [73] - [84].

[4] Compare R. v. Buckley at 218 [9] and R. v. Bajic at 171 [83]-[84].

[5] Compare R. v. Cupid at [28] and R. v. Bajic at 169 [77].

[6] (1996) 86 A.Crim.R. 293 at 299.

[7] [1998] 4 V.R. 621 at 633.

[8] At 634.

[9] [2004] VSCA 230; (2004) 11 V.R. 129.

[10] [2006] VSCA 247.

[11] See Melbourne v. R. [1999] HCA 32; (1999) 198 C.L.R. 1.

[12] As late as the sentencing remarks his Honour said that the maximum penalty on counts 3, 4, 5, 6 and 7 was 25 years' imprisonment, so the sentence passed at the first trial will be of little assistance if the applicant is found guilty at the new trial. See R. v. Beary [2004] VSCA 229; (2004) 11 V.R. 151 at 157 [15]-[21] and 163 [39].