R v Kerr [2001] VSCA 136

Court of Appeal (Vic)|2001-08-29|Before: PHILLIPS, CHERNOV and VINCENT, JJ.A.

The applicant was arraigned in the County Court at Morwell, on 5 November 1999, on a presentment containing three counts of false imprisonment, three counts of indecent assault, 20 counts of rape, one count of reckless conduct endangering a person and one count of making a threat to kill. His wife, Vicki Lorraine Kerr, was

A jury was empanelled and the prosecutor opened the Crown case before them. At the completion of his address, counsel for the applicant applied for the discharge of the jury on the basis that certain of the remarks made by the prosecutor were not only inflammatory and calculated to produce a miscarriage of justice but also asserted the existence of an explanatory link between the alleged conduct of the applicant and his receipt of treatment for some unidentified psychiatric disorder. I will return to this matter, as it constitutes the basis of ground 2 of the application for leave to appeal to this Court. The learned trial judge refused the application and the trial proceeded.

On Friday, 3 December 1999, the prosecutor commenced his closing address. Unfortunately, the trial judge became unwell over the ensuing weekend and, as it transpired, the trial did not resume until 5 January 2000, at which time the prosecutor continued his presentation. After addresses were delivered by each of the defence counsel, his Honour commenced his charge to the jury, on 10 January 2000. They retired, on 12 January, and returned on the following day with verdicts of guilty against the applicant on all except three of the counts of rape. The co-accused was found not guilty on the two counts on which she had been presented.

After hearing a plea in mitigation of penalty, the judge imposed the following sentences of imprisonment - on count 1 (false imprisonment) 18 months, on count 2 (indecent assault) two years, on count 3 (rape) six years, on count 4 (rape) six years, on count 5 (rape) seven years, on count 6 (rape) seven years, on count 7 (indecent assault) two years 6 months, on count 10 (rape) seven years, on count 11 (false imprisonment) 18 months, on count 12 (rape) seven years, on count 13 (rape) seven years, on count 14 (rape ) seven years, on count 15 (rape) seven years, on count 18 (false imprisonment) 18 months, on count 19 (reckless conduct endangering life) three years, on count 20 (rape) seven years, on count 21 (indecent assault) two years six months, on count 22 (rape) seven years, on count 24 (rape) seven years, on count 25 (rape) seven years, on count 26 (rape) seven years, and, finally, on count 27 (threat to kill) two years. His Honour also directed that the whole of the sentence on count 6 be served cumulatively on the sentence imposed on count 5, and that otherwise all of the sentences were to be served concurrently. This created a total effective sentence of 14 years imprisonment, in respect of which a non-parole period of 10 years was fixed.

No complaint is now raised about the sentences imposed. The applicant seeks leave to appeal only against conviction and on the following grounds:

"1. The Learned Trial Judge erred in allowing the evidence of psychiatric treatment of the applicant as outlined in the record of interview. Such evidence was inadmissible and highly prejudicial. 2. The Learned Trial Judge erred in failing to discharge the jury after the prosecutor's opening address wherein the prosecutor sought to make a link between the alleged offending and the applicant's psychiatric treatment.

...

4. The Learned Trial Judge erred in failing to discharge the jury after an adjournment of the trial for some 32 days."

Two further grounds contained in the applicant's Notice of Application have been abandoned and need not be addressed, save to point out that it is no longer asserted that the verdicts were unsafe and unsatisfactory, as contended by the abandoned ground 5 which reads:

"5. The jury verdicts were unsafe and unsatisfactory. In particular it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant where: (a) the prosecution case depended entirely upon the uncorroborated and unsupported evidence of the complainant. (b) the complainant's account was unreliable because: (i) her account was confused and inconsistent. (ii) there had been ample opportunity to complain prior to the making of the complaint."

I have set out this ground because the assertions contained in particulars (a) and (b), which clearly constituted important elements of the defence case in the trial, provide a background to the consideration of the relevance of the evidence referred to in ground 1 of the Notice of Application for Leave to Appeal.

The charges upon which the applicant appeared before the court related to a series of offences which, it was alleged, he had committed against a 38 year old woman ("the complainant"). She was clearly the principal witness in the trial, and it was upon the credibility and reliability of her evidence that the conviction of the accused ultimately depended. Her evidence in chief encompassed all of the offences and she was extensively cross-examined in relation to them. In order to provide context to the consideration of the grounds raised by this application, at least the central features of her version must be described.

The complainant stated that she married, in September 1994, and that her husband and she took up residence in Sale. They had no children of their union, but a foster child was placed in their care for a number of months. This arrangement came to an end when an allegation was made by the complainant's former husband that her present husband was a child molester. The complainant and her husband attempted to have the relevant departmental decision reversed and sought the advice of a minister of religion, Pastor Barbara Curtis, as to the best course to adopt in the circumstances. She recommended that they discuss the problem with the applicant, who she described as a "whistle blower" and as someone who aided people in disputes with government agencies and the police force.

The complainant subsequently telephoned the applicant, using the number provided to her by Pastor Curtis, and he assured her that he was very familiar with what he referred to as "the bungles made by the Department of Human Services". He told her that he would be able to assist with the problem that her husband and she were experiencing concerning the child and, more generally, with other issues affecting her life. The complainant stated that she formed the impression that he was an individual who really cared about others.

After that contact, the applicant made a number of telephone calls to the complainant's residence in Sale, expressing interest in her situation and indicating his preparedness to assist her husband and her. He sent her some literature and she said that he convinced her that he was responsible for the dismissal of several members of the police force who were corrupt or guilty of some form of misconduct. Later, the applicant sent a letter to her, together with a key to his home, advising her that she was most welcome to stay there in order to escape the pressures to which she was then subject. The complainant stated that she was surprised by this offer as she had not yet met him face to face.

Not long afterwards, the applicant invited the couple to his home for a barbecue. He indicated that they would be introduced to some of his friends. However on their arrival, they found that the only people present were the applicant and his wife. At some stage during the evening, the applicant dressed as a police officer and asked the complainant to hold a starters' pistol and place it to his head, saying that this was how Victorian police officers behaved.

After the barbecue, the applicant continued to telephone the complainant, sometimes two or three times in the one day. He offered her husband and her the use of a house that he owned in Morwell, for a rental of $60 per week. They inspected the residence and decided to accept this offer. He seemed, the complainant said, to be attempting to do anything and everything he could to provide assistance to them. She described the approach of the applicant at this time as being "very overly friendly and very overly protective". This did not concern her, but she felt uncomfortable about the degree of affection that he displayed towards her. During this period, the applicant wrote a letter to the complainant in which he informed her that he had very strong feelings for her and he expressed similar sentiments during telephone conversations. The complainant said that she told the applicant that she was flattered by his attention, but that she loved her husband and wanted to resolve the issues that had arisen in their relationship, if possible.

Before the complainant and her husband could move into the premises in Morwell however, the complainant found, pinned to the front door of their house in Sale, a note and photographs depicting her husband naked with young boys. She also began to receive telephone calls from women who claimed to be the mothers of children who had been molested by him. The complainant became very distressed and telephoned the applicant for advice. He suggested that she should stay at his home while she decided what to do about the situation. She accepted what she perceived to be a kind offer of assistance and, shortly afterwards, moved into the house of the applicant and his wife, at Mirboo North. Resident also at that time was a vision impaired and intellectually disabled woman, named Cynthia, who had been living there for some time.

The complainant stated that, upon her arrival, the respondent appeared to behave as an overly protective friend. A furnished room was made available for her and, superficially, all appeared well. However she soon became aware that he was intercepting telephone calls from her husband and falsely indicating to him that she was not present. When she queried this conduct, he told her that it would be better if she did not have contact with her husband, in order that she might have time to think clearly about her future course of action, and that, in any event, she should not associate with "a child molester".

At the end of the first week of her residence in the applicant's home, he proposed, according to the complainant, that they obtain her belongings from the house in Sale and that she thereafter live at his home. She was still uncertain about what she should do and agreed. The applicant then typed a letter, which she signed, authorising the removal of her possessions. On 15 September, the applicant and his wife drove with the complainant to Sale and her belongings were then collected.

Later that evening, the complainant and Vicki Kerr conversed in the kitchen of the applicant's home. The complainant told Mrs Kerr that she still had feelings for her husband and complained that he had not been able to speak to her when the belongings were collected. The applicant, according to the complainant, then ran into the room, dragged her into her bedroom and threw her on the bed. He accused her of being ungrateful because she still loved that "child fucker". She struggled as he attempted to remove her clothing and told him that she would call the police. He laughed, stating "go ahead - I love courtrooms". The complainant said that he "helped himself" to her body, feeling her breasts and vagina. He continued to kiss her and touch her. He told her that "if she ever talked - he would have her `hunted down like a mangy dog'". He threatened to kill her and grabbed her by the throat. She claimed that she felt really scared and believed that he might carry out this threat. She stated that he remained with her for some hours.

That evening constituted the commencement of the period of false imprisonment, between 15 September 1997 and 5 November 1997, alleged in count 1 of the presentment.

The complainant stated that, during the second week that she was resident at the applicant's house, she requested his consent to use the telephone. She had received a letter from the Department of Social Security with regard to her entitlements and needed to respond. Initially the applicant agreed and she was permitted to commence the call. However, he suddenly terminated it telling her that he had not authorized the use of the phone in this fashion and that she had broken "the rules of the house". He said that he would attend to all of her affairs and that she had to be punished for her infraction and he repeated this statement on a number of occasions. Some hours later, he dragged her into a bedroom where she was placed over his knees and hit with a strap. He told her that she was "a child, a naughty girl", and had to be punished for what she had done. He said that she was too free spirited and had to be controlled. He then made her remove her clothing and lie on the bed. He masturbated over an area of scarring on her body which had resulted from burns that she had received many years earlier and told her that it was beautiful.

According to the complainant, the applicant often spoke to her about what he described as "the rules". On one occasion, which constituted the subject matter of counts 3 and 4 on the presentment, when she indicated that she wanted to leave, he told her that she was free to go. As an apparent sign of good faith, he put the key into the ignition of her car and started the motor. She then went to the vehicle with the intention of driving away. However she was prevented from doing so by the applicant who dragged her out of the car and explained "the rules" to her. He said that, as she had gone to the vehicle, she was required to have oral sex with him. Because she had entered it, she was required to engage in anal sex. The complainant said that she cried and informed the applicant that she was going to have him charged. She begged him to stop, however he disregarded her pleas and raped her, as he had indicated.

The complainant described, in her evidence, various forms of control exercised by the applicant. They included the making of forced and untrue entries in her diary and the writing of love letters in response to his demands that she do so.

The complainant gave evidence that, on 5 November 1997, she was told by the applicant that she had broken some more "rules". As punishment, he splashed methylated spirits over her body whilst holding a cigarette lighter. She said that he clicked the lighter, apparently trying to produce a flame, and that she became hysterical, believing that she was going to suffer burns in a manner similar to that which had occurred when she was a young child and had resulted in the scarring, earlier mentioned. He told her that he was going to do a "better job" on this occasion. She said that the more frightened she became, the more aroused and excited the applicant appeared to be. Either during or subsequent to this assault, the complainant began to experience pains in the chest accompanied by blurred vision and loss of sensation. She lost consciousness and having suffered what was described as "a stroke" was subsequently admitted to the Traralgon Hospital. Although still paralysed with no feeling in or use of her limbs, she arranged to be discharged shortly afterwards and returned with the applicant to the house at Mirboo North. She stated that she did not want to do this, but that she was afraid of him and of what might happen if she broke any of "the rules".

On arrival at the house, the complainant was taken to her bedroom where she was dressed in a nightdress and placed into her bed. Although she was exhausted and wanted to sleep, the applicant remained with her. She said that he had vaginal and oral sex with her on that night and that she was both physically unable and too frightened to resist. He told her that, if she had another stroke, he would let her die. When she awoke on the following morning, he told her that she was dependent on him and that she could not run away or fight him off any more.

The complainant described further occasions of anal, oral and vaginal rape, which together with what I have just described were encompassed by counts 5, 6, 10, 12, 13, 14 and 15 of the presentment, and occurred between 4 November 1997 and 11 December 1997. I do not consider that I need to recite her evidence concerning these various acts. Suffice it to say in order to convey some image of the type of behaviour attributed to the applicant, that one, according to the complainant, occurred when she was confined to a wheelchair. She was dragged from the kitchen to the laundry where her clothing was removed and her anus was forcefully penetrated by the applicant's penis. She was aware that a friend of the applicant was present in the house at the time and she called to him for assistance, but he did not respond. On another occasion, when an associate of the applicant by the name of Kia was staying at the house, the applicant boasted to this person about how much power he had over the complainant. Later that night he pinned her down, and conscious of the presence of his friend in another room, called out what he was doing as he raped her. This activity, she said, took place when Vicki Kerr was in the bed with them. She said that she was screaming during the course of the rape, but that Mrs Kerr just turned away.

During this period which was the subject of a further count of false imprisonment and about one week to a week-and-a-half after the complainant suffered the stroke previous mentioned, she began to recover partially the use and feeling in her left arm. However her leg remained totally devoid of sensation and she was still unable to walk. At around this time, the applicant, she said, told her that, if she ever spoke to anyone about what had happened, he would make her look like "a totally insane nutcase".

On another occasion and while she was still quite disabled, she was present in her bedroom when the applicant entered and removed his trousers. She obtained the keys to her car from his pocket and by holding on to the walls, made her way to the front door. She then dragged herself along the gravel driveway towards the vehicle. She was able to enter it and to turn on the engine before the applicant came to the passenger door. He grabbed hold of her and begged her not to leave. He told her that he loved her. In order to convince him that she would let him take her back inside, she turned off the engine. He then moved away from the vehicle which she started, put into first gear and commenced to drive away. She drove the car in first gear until she reached a telephone box in a nearby town. Before she was able to call for assistance the applicant arrived in his car. He picked her up and took her back to the house.

The complainant was then carried inside by the applicant and taken to her bedroom. He told her that she was really going to be punished for what she had done. He put handcuffs on her wrists and secured her hands behind her back. She was pushed on her stomach on the bed and anally raped, after which he forced his penis into her mouth. He then engaged in vaginal intercourse with her. She screamed at him and told him that she would have him charged. He responded that no-one would believe her as he was smarter than she. The handcuffs remained fastened until the following day.

There were, according to the complainant, in addition to direct sexual assault, a number of different forms of abuse to which she was subjected whilst detained during this period between 4 November and 11 December 1997. They included the use of a wooden backscratcher that the applicant employed to irritate an area of weak scarring on her back. The implement would be applied to the area until it bled and he would continue until she was in obvious pain. On one occasion, a knife, that he had apparently been sharpening, was placed against her neck and he told her that he could cut or slit her throat. He then ran the knife down to her chest and stopped over her heart, which he said that he could cut out. He moved the knife down to her vaginal area and told her that he was going to cut her inside. On a separate occasion, when engaged in similar activity, he cut some of the complainant's pubic hairs.

On 11 December 1997, the applicant took the complainant with Cynthia and his wife shopping at the Traralgon Plaza shopping centre. At a time at which she was some distance from him and his attention was diverted, the complainant was able to engage a taxi and she made her way to the railway station. She travelled to Sale and booked herself into a motel. She then contacted her husband and stayed with him during the next few days.

On the fourth day after she had managed to escape from the applicant, she saw him in company with Vicki Kerr in the main street of Sale and decided that, in the circumstances, it would be safe to return to the house at Mirboo North to collect her car and property. She purchased a return ticket to Traralgon and, once there, made a telephone call to the applicant's home. On finding that he had returned, she spoke to him, saying that she just wanted to recover her car and personal belongings. He assured her that there would be no difficulty in doing that and that her car would be found on the block of land next to his home, with her property in it.

She then travelled by taxi to Mirboo North and requested the taxi driver to let her out a short distance from the applicant's home. When she approached her car, which was parked as had been earlier indicated, she observed that it did not contain her belongings or the car keys.

She said that the applicant then grabbed her and dragged her back into the house where he handcuffed her hands behind her back and wrapped elastic straps around each of her feet that he then tied to the end of the bed. She said that he yelled and screamed at her. According to the complainant, he kept her tied to the bed for a couple of days during which time she was made to urinate in a bowl and was not permitted to go to the toilet.

According to the complainant, while she was on the bed the applicant threw methylated spirits over her and flicked a cigarette lighter. He laughed at her and ripped her jeans from her and subsequently forced his penis into her anus and mouth. During the course of that incident, the complainant began to feel ill and she experienced blurred vision and chest pains. Apparently concerned about the possibility that he may have gone too far, the applicant stopped his assault and took her into the shower. He made a cup of coffee for her and gave her some tablets for the pain. He said that, between God and his nursing abilities, he had the power to fix her.

The complainant went to bed for a period of time, but the symptoms became more severe. A psychiatric nurse who attended at the home to treat the applicant came into her room and asked her if she was all right. The applicant, who was present, responded that he had everything under control. The nurse accepted this assurance and made no further enquiry. Although the complainant eventually lapsed into unconsciousness, she recovered after a number of days.

The complainant described the occurrences on a further night on which she was vaginally and anally raped by the applicant between 2 January 1998 and 4 February 1998. Again, I do not propose to set out her evidence.

On 29 January 1998, the complainant attended at the Korumburra Court House with the applicant and Vicki Kerr. The complainant was approached by Detective David Reynolds of the Korumburra CIB who indicated to her that he had concerns for her welfare. She said that she became scared and responded that she was "fine". Shortly afterwards, the applicant, Vicki Kerr and the complainant returned home. In the course of the journey, the applicant told her that he was going to arrange to have Reynolds killed. He forced the complainant to write a letter to the Ethical Standards Department of the Victoria Police Force, complaining about the policeman's behaviour, and to complete a Statutory Declaration to the same effect.

I do not deal with the various acts of abuse that the complainant attributed to the applicant at around that time, as they were not the subject of any of the counts contained in the presentment. Eventually, on 4 February 1998 Detective Reynolds went to the house at Mirboo North and took the complainant from the premises.

As is apparent from the above relatively bland summary, from which considerable detail has been omitted, the conduct attributed to the applicant by the complainant can, without any suggestion of exaggeration, be described as horrific for its violence and its depravity. It involved the commission of many serious criminal acts over a lengthy period of time and an extraordinary level of calculated and deliberate cruelty. The evidence of the complainant, which necessitated her appearance in the witness box for a number of days as she provided her version and in respect of which she was cross-examined over six days, would have been, at least, startling to the jury and would surely have had dramatic effect upon them. It is against that background that the grounds upon which the present application is based, fall to be considered.

Prior to the prosecution's opening, counsel who was then appearing for the applicant sought the exclusion of some questions and answers that appear in the record of an interview conducted by investigating police officers on 4 February 1999. They related to the applicant's treatment at or through a psychiatric clinic and arose in the following context:

Q I must also inform you of the following rights. You may communicate with, or attempt to communicate with, a friend or relative to inform that person of your whereabouts. You may communicate with, or attempt to communicate with, a legal practitioner. Do you understand these rights? A Yes. Q Do you wish to exercise any of these rights before the interview proceeds? A Yes, I do. Q Which of those rights? A A - a friend or people I'm under for the medical condition, and my brother. Q Your brother. Your brother's name is? A John - yeah, John Fry, F-R-Y. Q Yeah. A What do you want now? His name - name? Q Phone number. A I mean his phone number - 478 2392 - I think I got that right. Q So, that will be 9478. SENIOR DETECTIVE WILLIAMS: Q Is that a Melbourne number? A It's a - yeah, Melbourne number ... DETECTIVE SERGEANT NANKERVIS: Q It's a Melb-, Melbourne number. A Yeah, 9478. Q Yeah. Yeah, and who else? A And Gavin - I don't know his second name, from Gippsland Psychiatric Services at Korumburra. SENIOR DETECTIVE WILLIAMS: Q Just in relation to your age, are you actually 61 at the moment - would you be turning 62 ...? A Yeah - yeah, that's right, yeah, I'm 62 in February, yeah, yeah. DETECTIVE SERGEANT NANKERVIS: Q Have you got a phone number for - for that? A For the - Gavin? Q Yeah. A No, I can't remember off me head, it's ... Q It's at the Korumburra Hospital, though, isn't it? A Yeah, it's under - in the phone book. It will be under Gippsland Psychiatric Services, 55 something, I can't remember the rest. Q Yeah. Anyone else? A Well, I requested Mark Woods. SENIOR DETECTIVE WILLIAMS: Q Okay. Well, I'll explain that to you. Do you agree that you came into this police station at about quarter to four? A Yes. Q And you were brought into the interview room just nearby, and ...? A Yeah. Q We told you that we wish to interview you ... A Yes. Q And you said that Mr Woods was at the Moe Court. A Yes. Q And that you'd like to have him here. A Yes, I just spoke to him at the Moe Court. Q Yes. Well, I've - I've just been to the Moe Court and I've spoken to Mr Woods, personally, and he said - he said to say that he's very busy with some Family Court orders. A Mm. Q And he couldn't come over here, but he would be happy to speak to you in about half an hour when he gets back to his office. A Right. DETECTIVE SERGEANT NANKERVIS: Q Happy with that? A Well, I got nothing to say until I speak to Mark Woods. Q Alright. Well, what we'll do is, we'll suspend the interview now. Do you agree the time is 1 - 1 minute past 4.00? A Yes.

There was nothing objectionable in the approach adopted by the interviewing police officers in this passage. It was, of course, necessary pursuant to the provisions of Section 464 of the Crimes Act (1958) for them to inform the applicant of certain rights under the law and to afford to him a reasonable opportunity of exercising them. The admissibility and reliability of any statements made by him could well have been dependent upon their compliance in this respect. The individual questions asked were quite appropriate in the circumstances and were directed to matters which had to be addressed before the interview could proceed. This aspect was touched upon, and again in an appropriate manner, when the interview resumed, in the following passage.

Q Do you recall that I also read to you your rights before? You may communicate with, or attempt to communicate with, a friend or relative to inform that person of your whereabouts. You may communicate with, or attempt to communicate with, a legal practitioner. Do you understand these rights? A I've spoken to a solicitor but not the man that's handled my medication."

Objection was also taken to the following questions asked and answers given in a further interview conducted on 18 February 1998:

"DETECTIVE SENIOR CONSTABLE WILLIAMS: ... Q I told you you don't have to make any comment at all. A I know, I know. Well, I mean you - you want me to answer questions. I'm gettin' no so good in the head and if you want to ask me the important questions - they're not questions. You're reading it. You said you were here to question me. You're reading out statements of another person and you sit there and you're expecting me and you're looking at me, waiting to comment on them. I don't know the purpose - from this point on I'll say I've got no - nothing further to say and no comment for the rest of the interview, I'm sorry. I'm not feeling so good. I'm on a lot of medication which I haven't got all of here. I'm on heaps of medication. Q What medication are you on? A I don't know the names of it all. Gippsland Psychiatric Services have not received all of their medication which I'm supposed - I'm not blaming you for that ... ... before I came back here today. Q Well, if - if there's medication that you need, maybe I can assist you in obtaining it. A I don't know what they`re called. I don't know the names of the stuff. A new one. I've had one tablet here. I think I had it out there. I don't know. ... ... ... ... for a bleedin' ulcer, but that's not the problem, though."

I can detect nothing objectionable in the interrogator's approach in asking these questions in circumstances where the possibility that the applicant may have been experiencing some confusion or other difficulty had to be addressed.

Finally objection was taken to the admission of the following questions asked and answers given in the same interview:

"DETECTIVE SENIOR CONSTABLE WILLIAMS: ... Q Okay. Now, is there anything you want by way of food or drink or medication or anything like that at this stage? A I'm not sure what medication I've got here. I don't see it, you see, so I'm not - I don't know what I've got. I don't know what can help me clear up this thing here, but I don't know. Q Do you - do you feel sick? Do you need to see a doctor? A No. No, thank you. No, no. No. It's ... ... ... ... sick in the stomach ... ... ... want to vomit. Q What medication do you normally take? A I'm tryin' to think. They've all got different names. I can't - one's called something like Promazine or something or Primazine. Primazine. That's one of them. Q How often do you have to take that? A I think I take a couple a day. I don't know. I've had none today, but anyway, I - I don't know if they're there. They mightn't be there. They mightn't be there. Q Last time - when you - when you were first taken into custody ... ? A Mm. Q We made inquiries about your medication and ...? A ... ... ... ... Q Well, as far as I'm aware, and you correct me if I'm wrong, please ...? A Yeah. Q You were to take a tablet once a day at night time or it was - it might've been one a bit tablets. A Yeah. Q Once a day at night time. I can't recall the name of that tablet. A No. Q But is that the only medication that you're on, just one a day? A No, no, no. No, it's not. Q Well ...? A Well, ... ... Psychiatric Services from Korumburra there. The hospital part - part of the hospital. They - they brought out one, two, three - three or four different sorts, but I - I don't know what - what the names of `em - one of `em was called ..., but ... Q Yeah. A That's one of them. Q And did you take that regularly? A Yeah. Q As you were supposed to? A Yeah, but I've got - sometimes they'd bring `em and sometimes I get prescriptions - the scripts if I ... ... ... was a mess, that cupboard. If - if I didn't spot enough in there I could get a packed form - from a GP. Q Mm'm. A Well, a script for one. Not a packet. Q Did you get them from - a script from a GP? A I might've got some from Doctor Liss at Traralgon, I think. Q Yeah. Anyone else? A No, I can't remember who else. Q Doctor Liss isn't a GP, is he? A No, no. He's a psychiatrist. Q When did you last see Doctor Liss? A I can't remember. Q Well, within the last year? A I've got no more to say. I'm getting' off ... ... ... ... ... ... I don't know whether it's relevant, all this. Q Well, all I'm trying to find out is what medication you're on and - and who's prescribing it and seeing if we can ...? A Well, I told you that I don't know the names of all the tablets and things. Q Well ...? A I mentioned ... and somethin' like ... That's all I can remember. Q If you can tell us who's prescribing the medication of what ever ...? A Yeah, Gippsland Psychiatric Services, Korumburra. Q Who's the doctor that prescribes your medication? A Doctor Dass, but he's - he's he's a psychiatrist. He's not there all the time that I know of. Q Doctor Liss is a psychiatrist too, isn't he? A Yes, he is. Q Or a psychologist? A He's a psychiatrist. Q Yeah. A Yeah. Q And you mentioned a GP. Which GP did you get your medication prescribed. A Well, mainly it would be Doctor Costello unless she's away somewhere, yeah. She won't be there now anyway. Q Okay. Well, what medication did she prescribe for you, do you know? A No, I can't remember now. I used to get Mogadon. I can't remember. Q Are you suffering a condition at the moment for which you require medication? A No, I'm not - I'm not - I'm not cryin' out that. I'm not cryin' out - I'm not cryin' out that. Q I just want to find out if that's something that you need at the moment, Mr Kerr. A I - I understand you're tryin' to help me, all right. I don't know what I'm supposed to take for this. That's what I'm tryin' to get you to understand. I don't know what I'm supposed to take."

No complaint has been advanced concerning the reasonability of the questioning in this passage, either by reference to its subject matter or the manner in which the interviewing members conducted themselves, and none would, in my view, have been justified in the circumstances.

On each occasion on which the reference was made to treatment being provided to the applicant through a psychiatric clinic or service, the enquiries made by the interviewing police member were appropriate and of themselves carried no suggestion or implication that the applicant was perceived as someone who may have been psychiatrically disturbed. No attempt was made to enquire into the applicant's psychiatric or medical history beyond what was necessary to deal with any possible issue of his welfare or to do more than ensure that the interview was being properly conducted. As earlier indicated, such considerations impinged upon the integrity of the process and the reliability of any statements made by the applicant in the course of the interview.

The evidence of the provision of medication to the applicant was also relevant in a case in which the complainant asserted that she was given tablets by the applicant that had in turn been prescribed for him.

Further, the applicant stated in the interview that medication in the form of tablets was prescribed for him by a doctor at "Psychiatric Services from Korumburra there" and that "sometimes they'd bring `em". As I have earlier mentioned, there were also references in the evidence to the attendance at the house, at Mirboo North, of a psychiatric nurse who visited the applicant shortly after the complainant's second collapse and that the complainant believed that this person had accepted the applicant's word that he had everything under control. This evidence possessed relevance as to the existence of an opportunity for the complainant to have complained about any unlawful detention or to have left on her own volition.

The passages in the interviews to which objection was taken were relevant on more than one basis and, unless an adequate justification could be seen for their exclusion in the exercise of judicial discretion, were admissible in the trial.

With respect to the potential prejudice that, it has been claimed by counsel in argument, would have been attracted by the mere mention of the provision of the receipt of psychiatric treatment by the applicant, I am unpersuaded that any such prospect should be regarded as sufficiently substantial to have required the exclusion by the trial judge of the impugned evidence in this case. It is, I consider, commonplace in modern society for persons to receive treatment for a very wide range of problems from mental health professionals, and this, I consider, would be well known to ordinary members of the community.

Even if allowance is made for the possibility that, in the absence of further information concerning the nature of the treatment being received by the applicant or as to the underlying condition for which it was being provided, some uninformed members of the jury may have chosen to speculate about these matters and to disregard the clear instructions of the trial judge, given at the outset and in his charge, to act on the evidence before them, it is difficult to see how this may have led to a miscarriage of justice in a case where the jury subsequently learned the nature of the unfortunately commonplace condition involved.

By reason of the view that I have taken with respect to the admissibility of the evidence, I need not address a further, and, I should add, quite misconceived argument advanced in this Court to the effect that his Honour failed to apply the provisions of s.398A of the Crimes Act relating to the admission of evidence of propensity.

The major issue with respect to this evidence arose in the trial not by reason of the possible prejudice arising from the admission of the evidence for legitimate purposes, but because the prosecutor intimated in preliminary discussion in the absence of the jury that he desired to employ it to "explain" the conduct of the applicant. He also stated that there was no intention to adduce any evidence from a specialist psychiatrist on this aspect and seemed to be asserting that the likelihood of such a linkage was a matter of common sense. The prosecutor made clear in the course of this discussion that there would be no evidence adduced from an appropriately qualified person with respect to the unidentified condition for which medication had been prescribed for the applicant. In my opinion there was then a risk that as a consequence of the prosecutor's anticipated invitation to do so, the jury might conjecture about the nature of the psychiatric problem from which the applicant was suffering and reason impermissibly towards guilt on the basis of it. Indeed at one stage, the prosecutor said:

"Your Honour we have got to have something to explain the conduct of this man because it is conduct which is close to being unbelievable and to cut that out would be a gross disadvantage to the Crown in my submission."

The prosecutor was clearly concerned about an expected challenge to the evidence of the complainant and the prospect that the jury may regard the conduct attributed by her to the applicant and her claimed response to it as being so bizarre that her version could be dismissed as highly improbable. The prosecutor intimated that he desired to argue before the jury that a relationship of what he described as an explanatory nature existed between the conduct attributed to an accused and some unidentified psychiatric condition, the character of which was to be implied only from the receipt by him of medication of some kind. In my opinion, His Honour should have addressed that argument directly and made it clear that it was not to be put before the jury in that way as it required them to engage in impossible speculation and perhaps act on the basis of prejudice.

The failure of the trial judge to deal properly with this aspect did not render the evidence inadmissible for legitimate purposes, but it does raise the question whether a miscarriage of justice may have occurred.

As it transpired the prosecutor, fortunately in the circumstances, made only a single passing reference to the receipt of treatment by the applicant in his opening. It occurred at a stage at which he was describing in graphic fashion the conduct attributed to the applicant. After outlining a particularly horrible piece of behaviour, he asked rhetorically "How could someone, a human being, be so cruel and do these things?" He then provided the rhetorical response "Well in 1991 he says to the police, he was treated psychiatrically at the hospital somewhere around here, Traralgon I think." What conceivable relationship existed between the receipt of some form of treatment in 1991 for an unknown disorder at an unidentified hospital and actions in which he was alleged to have engaged six years later (indeed medication had been prescribed for him for an unidentified condition at the time) was never articulated. I should also point out that no further reference was made in the trial to any such treatment at the earlier time and no evidence was adduced with respect to any such attendance. Importantly, the jury were never invited to reason that the credibility of the evidence of the complainant was in any respect enhanced by the fact that the applicant had been in receipt of medication for some psychiatric condition in 1991 or at any other time.

At the conclusion of this opening, counsel for the applicant applied for a discharge of the jury. He contended (inter alia) that the statement of the prosecutor constituted an invitation to the jury to infer from the receipt of some form of psychiatric treatment that the assertions made against his client were true. He argued that no proper foundation for the drawing of any such inference existed and complained about the opening which he submitted was "high on prejudice and emotion and low on accuracy".

The trial judge regarded the prosecutor's assertion as constituting nothing more than a passing comment of little or no consequence in the context of the opening and the trial generally. It also appears that counsel for the applicant at the trial regarded this categorization as appropriate and raised no further objection in relation to it. His Honour drew attention to his obligation to place emphasis in his instructions to the jury upon the need for them to act strictly in accordance with the evidence that was placed before them in the trial. He noted that he had already done so in his opening remarks and he was conscious of the period of time which would elapse before the jury retired to consider its verdict. That period, I should add, became per force of circumstances, considerably longer than he anticipated at the time of his ruling. No complaint has been made with respect to the adequacy of the instructions subsequently given and no further application for the discharge of the jury was made on this foundation.

It has not been argued before this court that his Honour was unmindful of the principles to be applied when considering an application for the discharge of a jury. The question before us is whether he incorrectly applied them in the circumstances. In my opinion it has not been demonstrated, applying the well recognized and regularly applied test set out in R. v. Boland[1], that there was a high degree of need for the discharge of the jury in the circumstances and I am unpersuaded that his Honour fell into error in this respect. As I indicated earlier, it is important to place this isolated remark into the context of the opening and the issues in the trial. The summary of the complainant's evidence set out earlier in this judgment does scant justice as a description of the true character of the conduct attributed to the applicant or to the volume of evidence which the jury had to consider in the trial. The possibility that the jury may have been influenced by a single remark made in passing by the prosecutor concerning treatment in 1991, and which was totally unsupported by any later evidence or argument advanced with respect to it, is fanciful in the circumstances, in my view.

In any event, as I have earlier mentioned, I do not consider that the statement of the prosecution gave rise to the reasonable possibility of a miscarriage of justice in the circumstances, where the only evidence adduced before the jury which would conceivably bear on the matter was that the applicant was being treated for the unfortunately common condition of clinical depression and in a case in which no challenge has been made to the adequacy of the instructions subsequently given by the trial judge.

I am of the view that this ground also lacks substance. Whilst it was unfortunate that the trial was interrupted by the ill health of the judge, the period of time was not such that the capacity of the jury to address properly the evidence and issues involved in the trial might be perceived as compromised to any significant extent.

The trial itself was not lengthy by modern standards and did not present the complex issues considered by the Court in R. v. Higgins[2] and the cases there mentioned.

As I have already indicated, the prosecution's case was dependent upon the credibility and reliability of the complainant. The jury had had the opportunity to observe her in the witness box over many days and I am satisfied that her evidence was likely to have had a substantial impact upon them. The period of delay was lengthy but not in context sufficient to compromise the capacity of the jury to perform their function properly. When the jury returned to the Court after the break, they heard further submissions from the prosecutor, and the entirety of the closing address of the applicant's counsel, as well as the judge's charge. I note that after their retirement, they made specific inquiries about the state of the complainant's evidence on one count. It is also apparent that they accepted the version given by her, acquitting the accused on those counts in respect of which her evidence was uncertain.

In my opinion the application for leave to appeal against conviction should be refused.

At a glance

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Judgment (71 paragraphs)

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Cases Cited (1)