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[2007] VSCA 55
Court of Appeal (Vic)
2007-03-20
MAXWELL P, EAMES and ASHLEY JJA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Conviction - Incest, indecent act with child under 16 - Admissibility of evidence - Evidence of uncharged acts to be given by non-complainants - Evidence of complaint - Whether admissible as recent complaint evidence - Defence counsel prevented from arguing valid objections to admissibility - Appeal allowed.
1 On 15 June 2006, a County Court jury found the applicant guilty on four counts of incest and five counts of committing an indecent act with a child under 16. All but one of those counts related to his stepdaughter ("A"). One of the indecent act counts related to a different girl ("B"). The applicant was acquitted of three further counts of committing an indecent act, all relating to a third girl ("C").
2 On 14 July 2006, the applicant was sentenced to five years' imprisonment on each of three of the counts of incest, and two years and six months' imprisonment on the fourth. On the indecent act counts, he was sentenced to terms of imprisonment ranging from four months to 18 months. With cumulation, the total effective sentence was 12 years' imprisonment. The Judge ordered that he serve a minimum of nine years before being eligible for parole.
3 The applicant sought leave to appeal against both conviction and sentence. In written submissions dated 14 March 2007, the Crown conceded that the applicant should be granted leave to appeal against his convictions, the convictions should be quashed, and a re-trial directed. That concession was, in our opinion, correctly made.
4 On 20 March 2007, the Court granted the applicant leave to appeal against conviction, allowed the appeal, quashed his convictions and directed that there be a retrial. These are our reasons for making those orders.
Defence objections not entertained
5 The trial at which the applicant was convicted was his fourth trial on these charges. The first trial began on 11 November 2005, but was aborted on 21 November after a copy of a statement by B was unintentionally handed to the jury by the Judge's associate. The defence application for discharge of the jury was not opposed by the Crown.
6 The second trial commenced on 22 November 2005, before the same judge. Prosecuting and defence counsel were unchanged. On 6 December 2005, the jury were discharged without verdict, having been unable to agree.
7 The third trial commenced on 22 May 2006, before the same judge and with the same counsel. On 23 May, a jury was empanelled but on 24 May the trial was unable to proceed due to a personal matter affecting the prosecutor. The jury were discharged without verdict because of the delay.
8 The fourth trial commenced on Monday 29 May 2006, before the same judge and with the same Crown prosecutor. New counsel appeared for the defence, however. On the application of defence counsel, who had only been briefed the previous Friday, the trial was adjourned to the following day.
9 On the resumption, defence counsel sought to raise objections to the admissibility of complaint evidence and of evidence of uncharged acts, amongst other things. Neither objection had been raised by the defence at any of the previous trials. Nor had defence counsel taken exception to those parts of the Judge's charge (at the second trial) which dealt with complaint evidence and uncharged acts.
10 Essentially for that reason, the learned trial Judge refused to allow defence counsel to argue the objections. Counsel did, however, state briefly the grounds of objection for the record, and we will refer in due course to what was said.
11 With great respect to the learned Judge, it was an error of principle to refuse defence counsel the opportunity to raise these objections to the admissibility of evidence. Her Honour had ruled on other matters in the earlier proceedings. Plainly enough, those matters could not be revisited. But these were new points, raised at the beginning of a new trial, and had to be treated in the same way as any point properly raised by defence counsel, that is, by allowing counsel to argue the objection.
12 Her Honour was, quite understandably, frustrated by the number of false starts which had already occurred. When defence counsel sought the opportunity to state for the record his objections to the Crown opening, the Judge agreed, but said it was "very inappropriate". Her Honour then said to counsel:
" ... [Y]ou must appreciate that this will be the fourth jury panel ... [t]he second full trial, the third trial, and you are seeking now as new counsel to raise matters."
"So that the court doesn't fall into error, your Honour, that is my duty to the court. Otherwise this will go to the Court of Appeal and it will come back again if there are errors made."[1]
13 The prosecutor strongly supported the position the Judge took. At one point, he said in response to the defence objections:
"I'm staggered at this, quite frankly, at the 11th hour these things are being raised. It appears complaint evidence, relationship evidence, guilty passion, uncharged acts, everything is coming to the forefront. They are contained within my opening and I opened them to the jury twice without exception, ... from [previous defence counsel] who is very experienced, more experienced than [new defence counsel], and he would concede that, I'm sure, that he is. He did not take exception to anything in that opening. ... I don't know where this ends, quite frankly."[2]
14 In the face of such opposition - which, it must be said, was not only strenuous but rather condescending - defence counsel's persistence was highly commendable. The learned Judge pointed out, repeatedly, that his predecessor had not taken exception to admissibility on any of the grounds now sought to be raised. Her Honour said that there had been no rulings -
"because it wasn't considered it was relevant to have debate."
"That might be right, but in my respectful submission, those who so considered were wrong. ..."[3]
15 It is most regrettable that counsel was not given the opportunity to develop full argument on these points, for the grounds of objection were sound. The evidence objected to was, indeed, inadmissible, and its wrongful admission means that the convictions must now be quashed.
Uncharged acts
16 In stating his grounds of objection, defence counsel pointed out that the prosecution opening referred to requests for oral sex allegedly made by the applicant to two other girls ("D" and "E"), neither of whom was a complainant. Counsel submitted that those allegations:
" ... refer to no count; they are not referable to any count; they are not relationship evidence with the main complainant, [A]; they are not evidence of guilty passion against [A]. All that evidence can be is mere propensity evidence which is not relevant. It's mere propensity to ask for indecent acts from young girls. It's got ... nothing to do with the charges in this case, and if it's led, your Honour, the trial will miscarry, in my respectful submission. I don't think I can put it more succinctly than that."[4]
17 This submission was clearly correct. Evidence from non-complainants about uncharged acts was simply inadmissible.
18 As this Court has said repeatedly in recent years, evidence of uncharged acts is admissible only for very limited purposes. Thus, a complainant may give evidence of uncharged acts by the accused so as to provide a "realistic contextual setting" in which the evidence relating to the charged acts may be assessed and evaluated.[5] Typically, evidence of the uncharged acts is admitted to show the existence of a sexual relationship between the complainant and the accused.[6]
19 Her Honour correctly identified this permitted use of evidence of uncharged acts.[7] But evidence by non-complainants (D and E) about indecent conduct of the applicant toward them plainly could not be relevant in that way.
20 Her Honour's redirection on uncharged acts was preceded by this passage:
"The next point I wish to make, and I'm just going to remind you in some detail, because we have had extensive evidence given about so called uncharged acts, that is criminal activity that is not the subject of a count on the presentment, and other activity that we have described as constituting a guilty sexual passion allegedly between the accused and young girls, but [A] his stepdaughter in particular, I just want to remind you how you may use that kind of evidence, if you do accept that evidence."[8] (emphasis added)
The applicant was not on trial for having "a guilty sexual passion [for] young girls", but for having committed particular sexual offences against particular complainants.
21 Again, in a case (like the present), with more than one complainant, evidence of uncharged acts given by one complainant may be admissible in respect of charged acts against another complainant, where there is a basis for contending that it is improbable that two complainants would give such similar accounts, accounts displaying an "underlying unity" or a common "modus operandi".[9] Again, that principle has no application to evidence to be given by non-complainants.
Recent complaint evidence
22 Defence counsel also took objection to those parts of the prosecution opening which foreshadowed evidence of complaints made by A to C, D and E respectively. He said:
"In my respectful submission, they are generalised complaints which are not made at any particular time that is pinned down by either the complainant or the three girls, they are not referable to any particular charge on the indictment, and that being the case, they can't be recent complaints as the law understands them because to be recent complaints they must be made at the first reasonable opportunity and they must be such as to confirm the consistency of conduct of the complainant, and if they are just a general allegation, not referable to any particular incident, then it doesn't fit that category, your Honour, and so the Crown shouldn't be able to lead that evidence."[10]
•
D gave evidence that in June or July 2003, A told her that the applicant had raped her, but did not go into any detail;[13]
•
C gave evidence that, in year 7, A had told her that the applicant had been having sex (intercourse and oral) with her "since she was 10";[14]
•
E gave evidence that at an unspecified time in 2003, A said to her that the applicant had been having sexual intercourse with her;[15]
•
A's mother gave evidence that on 7 August 2003 A told her that the applicant had had sex with her.[16]
24 The counts of sexual penetration of A related to the following periods:
•
Count 2 (vaginal) - between 8 March 1999 and 8 March 2002;
•
Count 6 (oral) - between 1 December 2002 and 31 January 2003;
•
Count 11 (vaginal) - 18 July 2003;
•
Count 12 (vaginal) - 24 July 2003.
25 As we have seen, defence counsel objected to the complaint evidence on the ground that none of the complaints were made "at the first reasonable opportunity after the event."[17] Indeed, he argued, none of the complaints was specific enough to be capable of even identifying a charged "event". These objections - founded on the propositions laid down in Freeman and recently reaffirmed by this Court in R v MAG[18] - were well taken.
26 As those decisions make clear, the trial judge was bound to consider those matters before deciding whether the complaint evidence was admissible. No such ruling was made. In her charge to the jury, the Judge reminded the jury of the defence contention that no recent complaint had been made, but then dealt only with the relevance of delay in complaining, saying:
"Whether the complainant complained or did not complain of the sexual assault at or near the time of its alleged occurrence may be regarded by a jury as evidence bearing upon the credibility of the complainant, in now complaining of it. The making of a timely complaint is a matter which the jury may regard as behaviour consistent with the truth of the complainant's evidence. The absence of, or delay in making, a complaint may, on the other hand, be regarded as inconsistent with the truth of the evidence. ... Delay in complaining does not necessarily indicate that the complainant's allegation is false. Obviously there are cases in which the relationship between the parties, the age of the complainant, the personality of the complainant make it less likely or more likely that a complaint would have been made, or would be delayed. It is for you to say in any particular case whether, in all the circumstances, the presence, or it may be the absence, of a timely complaint does constitute behaviour consistent, or inconsistent with the happening of the offence."
27 As the Crown points out, it is not clear why there was a need to direct the jury regarding delay in complaining, given that the evidence was evidently being treated by the Judge as recent complaint evidence. As in MAG, this may well have confused the jury.[19]
28 In our view, the evidence in question was not capable of constituting recent complaint evidence, and should not have been admitted.
Order for re-trial
29 Following the Court's indication that the appeal would be allowed and the convictions quashed, Mr Boyce for the applicant submitted that in respect of certain counts there should be no order for re-trial but rather directed verdicts of acquittal.
30 In relation to counts 1 and 3, alleging indecent acts with A, Mr Boyce argued that the evidence was vague and lacking in particularity, and could not be related to any particular occasion. The evidence related to alleged conduct by the applicant over a period and, it was submitted, there was no particularisation by the Crown of the conduct relied on - for example, by the Crown selecting the first of a series of such acts.[20]
31 In relation to counts 10 and 11, alleging both an indecent act and an act of sexual penetration on 18 July 2003, Mr Boyce submitted that the jury could not have been satisfied beyond reasonable doubt that the offending occurred in Victoria. The offending was alleged to have occurred during a stop on a truck journey from Melbourne to New South Wales. There was cross-examination of A as to whether she could remember where the truck had stopped when the offending occurred.
32 As discussed recently in R v Thomas (No 3),[21] this Court's discretion under s 568(2) of the Crimes Act 1958 to direct a judgment and verdict of acquittal is to be approached using the two-stage analysis defined by the High Court in DPP (Nauru) v Fowler.[22] At the first stage, the court considers whether the admissible evidence given at trial was sufficiently cogent to justify a conviction. If it was, the court then considers any circumstance that "might render it unjust to the accused to make him (/her) stand trial again."
33 In our view, the admissible evidence given by A at trial was sufficiently cogent to justify a conviction on counts 1 and 3 and 10 and 11. We have reviewed the evidence of A for this purpose, but it is not appropriate to say anything further.
34 It was not suggested by Mr Boyce that there were any circumstances that might render it unjust to the applicant to stand trial again. We therefore directed that a new trial be had on all counts (other than those of which the jury acquitted the applicant).
[1] T 23-24.
[2] T 21-22.
[3] T 24.
[4] T 25.
[5] R v Vonarx [1999] 3 VR 618 at 625 - cited in R v Grech [1997] 2 VR 609 at 611-12; R v FJB [1999] VSCA 90; [1999] 2 VR 425.
[6] R v FJB at 431[27].
[7] T 432-435, T 545-549.
[8] T 545.
[9] R v Best [1998] 4 VR 603 at 618; R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 at 675-677; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375 at 387-391; R v DCC [2004] VSCA 230; (2004) 11 VR 129 at 131-132[5] and 137[29].
[10] T 25.
[11] T 20.
[12] R v Freeman [1980] VicRp 1; [1980] VR 1.
[13] T 201.
[14] T 222.
[15] T 277.
[16] T 296.
[17] R v Freeman [1980] VicRp 1; [1980] VR 1 at 6.
[19] Ibid at [12].
[20] cf R v Best [1998] 4 VR 603 at 617, applying Director of Public Prosecutions v Lewis [1997] 1 VR 391 at 398.
[22] [1984] HCA 48; (1984) 154 CLR 627 at 630.
R
H G [2007] VSCA 55
(2001) 7 VR 631
(2004) 7 VR 375
(2004) 11 VR 129
(1984) 154 CLR 627