R v Kiernan [2008] VSCA 194

2 The question for the Court was whether the applicant should be retried on all six counts for which he had been convicted at trial or whether he should be retried only on counts 1, 2, 3 and 6 with verdicts of acquittal being entered on counts 7 and 8. The Court has now concluded that there should be a new trial on all counts for the following reasons.

3 The applicant, William Noel Kiernan, now aged 47, was convicted in the County Court at Wodonga on 17 May 2007 of three counts of indecent assault (counts 1, 2 and 3), one count of attempted rape (count 6), and two counts of rape (counts 7 and 8). He was acquitted by direction of the trial judge of one count of indecent assault (count 4) and one count of rape (count 6). He was found not guilty by the jury of a further count of rape (count 5). The verdicts on counts 2 and 3 and 5 to 8 were majority verdicts. He was sentenced to a total sentence of five years and six months with a non-parole period of three years and six months.

4 The complainants were two young girls, RK and EL, who were both aged approximately 13 when the offending commenced. The applicant had been friends with the families of the two girls.

5 In his notice of application for leave to appeal against conviction filed on 21 June 2007, the applicant relied on nine grounds of appeal against conviction. However, when the application for leave came to be heard on 4 September 2008, the Crown conceded that it should succeed because of errors made by the trial judge in his warnings on propensity evidence, and his directions regarding consciousness of guilt.

6 In his notice of application, the applicant made a number of complaints about the trial judge's failure to give the jury a warning in relation to propensity reasoning. Specifically, he submitted that the judge had erred in failing to warn the jury against propensity reasoning in circumstances where evidence had been led of uncharged acts (ground 1). He further alleged that the trial judge had erred in failing to give the jury a direction that they were not to use evidence relating to the uncharged acts as a substitute for evidence relating to any particular count (ground 2).

7 In his written submissions before the Court, the applicant's counsel elaborated upon these grounds. He argued that, despite his requests to the judge, there had been no direction to the jury as to how the evidence of uncharged acts could be used, and, as importantly, no warning as how that evidence ought not be used. Instead, his Honour had merely explained to the jury why it was that the prosecution had led the evidence, which, counsel submitted, fell short of the type of warning or direction required in a case such as the present. Further, he submitted, the jury should have been directed that they were not to reason that the applicant was the kind of person who was likely to commit an offence merely by reason of the uncharged acts.

8 Counsel for the applicant also submitted that the trial judge should have directed the jury in unequivocal terms that evidence led in relation to one complainant could not be used to support the Crown case in relation to the other. In other words, there ought to have been a direction regarding cross-admissibility.

9 On the morning of the application, the Court notified both parties that it would be assisted by submissions regarding the need for an appropriate propensity warning by reference to the following decisions: R v BAH (No 2)[1]; R v MCG (No 3)[2]; R v Taylor[3] and R v VAS.[4] By the time the hearing commenced, the Crown had changed its position as set out in its written submissions. Counsel immediately conceded that the directions given by the trial judge in relation to propensity reasoning had been inadequate, and that the appeal should therefore be allowed.

10 The Crown further conceded that the trial judge's direction to the jury had been inadequate in relation to consciousness of guilt. In ground 3 of the notice of application for leave, the applicant submitted that his Honour had erred in failing to give an Edwards direction, or indeed any direction, as to consciousness of guilt.[5]

11 The background to ground 3 was as follows. In the trial, the prosecutor raised, for the first time in his final address, that the applicant had been party to a false alibi, and submitted that this was a lie told because he was conscious of his guilt of the particular offence to which it related. As this matter had not been raised in the opening, and had not been put by the prosecutor to the applicant when he was cross-examined, there was never any opportunity for him to rebut that suggestion. The applicant submitted that in these circumstances the trial judge had been obliged, at the very least, to have given an Edwards direction.

12 The Crown had earlier conceded in its written submissions that, in light of the prominence given to the alleged 'false alibi' in the prosecutor's closing address, and the reference to that matter by the trial judge in his charge to the jury, an Edwards direction ought to have been given in respect of the alternative to count 6. The Crown conceded that the failure to give such a direction could have led to a miscarriage of justice with respect to count 6. However, it submitted that this error had not infected the whole of the trial. The Crown resiled from that submission at the hearing of this appeal, and conceded that the failure to give an Edwards direction in relation to count 6 could have affected the other counts as well.

13 We regarded the Crown's concessions as having been properly made. As previously indicated, in light of the two identified errors in his Honour's directions we allowed the appeal and quashed the convictions on all counts.

14 However, a further issue remained to be determined. The question was whether the applicant should be retried on all six counts of which he had been convicted at trial or whether he should be retried only on counts 1, 2, 3 and 6 with verdicts of acquittal being entered on counts 7 and 8.

15 The applicant's counsel submitted that the convictions in relation to counts 7 and 8 were unsafe and unsatisfactory. If that submission were accepted, the applicant would be entitled to an acquittal on those counts. He submitted that the evidence in support of counts 7 and 8 was of such dubious quality as to entitle his client to such an acquittal. It is therefore necessary to look more closely at the convictions in relation to those two counts.

16 EL gave evidence at the trial that midway through September 2004, the applicant drove her and her younger brother, W, to her grandmother's house in Yarrawonga. She said that she was sitting in the front passenger seat and that W was sitting directly behind her in the back of the car. She said that during the drive from Numurkah to Katamatite, the applicant undid the Velcro tab at the top of her trousers and put his hand inside her underwear. He felt the opening of her vagina, inserted his finger, and moved it in and out. She said that while this was happening, W was listening to music on his Discman. She said that after 'probably not quite five minutes' of this, they approached an intersection to turn onto the highway and the applicant took his hand out of her pants. The applicant was convicted of rape in relation to this incident (count 7).

17 EL said that the applicant continued to drive towards her grandmother's place. She said that after he drove through Katamatite, he stopped his car near a church. She said that the applicant told her brother to have a break and get out of the car. She said that her brother left the car and sat on a nearby fence. She said that the applicant then went around to the passenger's side of the car where she was sitting. She said that he lit a cigarette, which he was holding in his left hand. She said that her passenger door was open and the applicant was standing 'on the inside of the door'. He leaned over her, and undid the top of her trousers.

18 EL told the Court: 'He had his smoke in his left hand and he put his right hand back down inside my underwear again and towards my vagina opening.' She said that he firstly felt around her pubic hair area and then penetrated her vagina with his finger. She said that this lasted for two minutes. She did not say anything to the applicant while this was happening because she was 'too scared'. She said that her brother had left his Discman in the car and was sitting on the fence 'just looking around' while this was happening.

19 EL said that after some time, the applicant finished smoking and put his cigarette on the ground. She said that she thought her brother must have seen him throw his cigarette away because at that point her brother started heading back towards the car. At that moment, the applicant removed his hand from her pants. By the time he had put out his cigarette and pulled his hand out, her brother was nearly back at the car. The applicant then walked around to the driver's side. She shut the passenger door and did her trousers up. Her brother got back into the car and they continued driving towards Yarrawonga. The applicant was convicted of rape (count 8) in relation to this incident.

20 Under cross-examination, EL rejected suggestions from the applicant's counsel that W had been sitting behind the driver's seat during the drive, and listening to the car radio rather than music through a Discman. She also rejected suggestions that W had stayed in the car when it was parked near the church and had, at one point, slid across the back seat and stood on the rail where the car door opened.

21 W's evidence in-chief was given by VATE tape. He had been interviewed by the police on 18 November 2004. His account of what took place differed in certain respects from that given by his sister. For example, he said that, rather than sitting in the back of the car directly behind his sister, he had sat behind the applicant. He said that he had not been listening to a Walkman, or 'anything where you put plugs in your ears', but had been listening to the music that was being played in the car. He said that he had not got out of the car when it had been parked near the church, though he later agreed that he had got out 'a little bit', and had stood on a bar or metal plate on the left side of the car.

22 The Crown tendered the applicant's record of interview. In relation to count 7, he denied leaning over from the driver's seat to the front passenger seat and undoing EL's trousers. He rejected suggestions that he had 'played around with her vagina'. He said: 'No, I didn't. But I had her bloody brother in the car.' He denied putting his fingers in her vagina, moving them in and out, and then stopping what he was doing so he could use his hand to change gears. He said: 'Never put me hands on her there.'

23 In relation to count 8, the applicant agreed that he had stopped the car near an old church for what he said was three to four minutes. He said that neither EL nor W had left the car. He said that EL had been sitting in the front passenger seat and that her brother had been sitting in the middle of the back seat. He said that he thought that EL had opened her door and that he had leant on it while he finished 'his smoke'. He denied putting his finger in her vagina. He told the police that W had remained in the car throughout the entire time that he had stopped for a smoke, and said that he could remember W having wound down the car window, which was electrically operated.

24 The applicant gave evidence which accorded generally with what he had told the police in his record of interview.

25 Counsel for the applicant drew attention to the similarities between the evidence given by his client, and that given by W, in relation to W having been listening to music in the car, and not on a Discman, and also in relation to W not having left the car after it was parked. He submitted that given the discrepancies between W's evidence and that of EL, and the similarities between W's evidence and that of the applicant, the jury ought to have entertained a reasonable doubt as to the allegations of sexual penetration making up counts 7 and 8. He further submitted that it was inherently unlikely that any such conduct would have occurred in the presence of W.

26 The Crown submitted that there was nothing improbable about EL's account of what had occurred. She had given her evidence in a direct and forthright manner, and the jury had been entitled to accept what she said in preference to the applicant's testimony.

Principles governing 'unsafe and unsatisfactory'

27 Where an intermediate appellate court sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence (the language used in s 568(1) of the Crimes Act 1958), it frequently does so expressing its conclusion in terms of a verdict that is 'unsafe or unsatisfactory'.

28 The principles which govern the task to be undertaken by this Court when it is asked to conclude that a verdict is unsafe or unsatisfactory are well settled. They were set out by the High Court in M v The Queen.[6] In reaching such a conclusion, the Court does not consider as a question of law whether there is evidence to support the verdict. The question is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand.

29 In a key passage that has been cited on numerous occasions, Mason CJ, Deane, Dawson and Toohey JJ said:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.[7]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[8]

31 These principles have been restated by the High Court on a number of occasions.[9] They have been regularly applied by this Court, and other intermediate appellate courts as well.[10]

32 The question that confronts this Court is whether there is anything in the evidence given by EL (which, if accepted by the jury, was plainly sufficient to sustain convictions on both counts 7 and 8), which causes this Court to experience a reasonable doubt as to her credibility. In other words, are there discrepancies, or inadequacies, in her evidence of a kind which give rise, in the mind of this Court, to a significant possibility that the applicant is innocent, and was wrongly convicted on those counts?

33 The fact that EL's account differs in certain respects from that given by her brother is plainly relevant to the task which this Court must undertake. At the same time, it must be remembered that W was aged only nine at the time of the alleged offences. Those offences were said to have taken place on 17 September 2004 and W's VATE tape interview was not recorded until 18 November 2004. It is hardly surprising, in these circumstances, that there would be some differences as to matters of detail between EL's recollection of events, and that of her brother.

34 By the time of the trial in 2007, almost three years had elapsed from the date of the alleged offences. By that stage, memories would have faded. It would be unreasonable to expect two young witnesses to be in complete accord with each other. It must be remembered that W was not permitted to give sworn evidence at the trial, the judge having some doubt as to his capacity to understand the nature and quality of an oath.

35 The differences between EL's recollection and that of W were not such as, in our view, to cast significant doubt upon EL's testimony. She gave a plausible and consistent account of what took place. She could not have been mistaken about the events that she described. She could not have misinterpreted innocent contact for acts of sexual penetration. The jury would either have accepted her as a truthful witness, or they would not.

36 We find nothing inherently improbable in EL's account of the applicant having digitally penetrated her whilst driving (count 7). The fact that W, aged only nine at the time, happened to be in the back seat of the car at the time does not make her account implausible. There are any number of explanations as to why the young boy may not have seen what was occurring in the front of the vehicle.

37 As for the suggestion that the applicant would not have committed this offence while EL's brother was in the car, there are arguments for and against that proposition. It may be that the applicant assumed that W would not be paying attention to anything that might be happening. It may be that he assumed that W would have no understanding of what was occurring. Or it may be that he assumed that W would not be in a position to see into the front of the car. These matters were all fully canvassed at the trial, and the jury were well alive to them.

38 We see little substance in the contention that the position that the brother occupied in the back seat assumed any great significance. He was hardly likely to see more clearly into the front if he were seated behind the driver, as EL recalled, than if he were seated behind the passenger. In any event, the applicant described him as having sat in the middle of the back seat. His account did not accord with that of EL or W in that regard.

39 Likewise, we would not place great weight on the disparity between EL's evidence that her brother was listening to a Discman, and his evidence that he was listening to music being played in the car.

40 The applicant's position may be somewhat stronger in relation to count 8. EL's evidence was that her brother left the car for a few minutes while it was parked. W's evidence was that he remained in the car for almost the entire time that it was parked. The fact that W's evidence accorded more closely with that of the applicant on this one point does not persuade us that EL's testimony ought not to have been accepted by the jury. It must be remembered that W's evidence was at odds with that of the applicant on this matter as well. He said that he did get out of the car at one point, while the applicant maintained that he remained in the car at all times.

41 This was a case in which the credibility of the key witnesses was of critical importance. The jury had the advantage of having seen and heard EL, W and the applicant give their evidence and be cross-examined. That is a matter of considerable significance.

42 It would require some feature of this case that is by no means apparent to us to cause us to conclude that it was not reasonably open to the jury to accept the evidence of EL in relation to counts 7 and 8. We see no reason to doubt the correctness of the jury's verdict. We note, in passing, that the jury accepted EL as generally having been a credible witness in relation to the earlier counts on which they convicted. While that cannot be regarded as lending any particular support to the conclusion that the verdicts on counts 7 and 8 are not unsafe or unsatisfactory, it can at least be said that the jury were broadly consistent in their approach to her evidence.

43 It is for these reasons that we would order a retrial on counts 7 and 8, as well as the other counts on the presentment.

[1] [2005] VSCA 197.

[2] [2005] VSCA 262.

[3] [2006] VSCA 53.

[4] [2006] VSCA 159.

[5] Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

[6] [1994] HCA 63; (1994) 181 CLR 487.

[9] See, for example, Jones v The Queen (1997) 191 CLR 439; Dyers v The Queen (2002) 210 CLR 285; and The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618.

[10] See, for example, R v Huynh (2006) 165 A Crim R; R v Wei Tang (2007) 16 VR 454; and R v Klamo [2008] VSCA 75