R v Lewis [2002] VSCA 200

18. By Notice, dated 17 June 2002, the Director of Public Prosecutions appealed against the sentences imposed upon the applicant on the grounds of their manifest inadequacy.

21. As ground (iii) implies, the applicant had previous convictions. They were introduced into evidence by the applicant's trial counsel, during the course of his cross-examination of the informant; no doubt because counsel was keen to demonstrate to the jury that the applicant had no predisposition towards, or predilection for, sexual molestation of young girls. Although, as will become clear, it is unnecessary to decide this ground, I would not for my own part conclude that the trial had miscarried as a consequence of the admission of this evidence. Where trial counsel deliberately adopts a particular course on the basis that it will advance his client's cause, it will rarely be the case that an appellate court will conclude that the trial had miscarried, or that the judge was in error in failing to discharge the jury of his own motion. In this case the convictions which counsel led in evidence were some 16 years old, and did little more than reflect that the applicant, as a young man, was human. The circumstances were very different from R. v. Sarek[1] and R. v. Oliverio[2] upon which the applicant relied.

24. At the conclusion of the hearing, the Court announced that the appeal would be allowed on the basis that it was satisfied that ground (i) had been made out and that, at the very least, there would have to be a re-trial on all counts of which the appellant was convicted. Because the Court wished to consider ground (v) - and for that purpose to view the V.A.T.E. tapes - it announced that it would take time to consider the arguments of counsel before delivering its reasons. In view of the fact that the applicant has served a significant part of the minimum term fixed by his Honour, the Court ordered that the applicant be released on bail pending its determination.

27. As a result of the views which we have formed as to the disposition of the conviction appeal, it is unnecessary for us to consider the Director's appeal against sentence.

Ground (i) of the application for leave to appeal against conviction

31. As indicated, this ground asserts that the trial miscarried because the judge permitted the V.A.T.E. tapes of the examination-in-chief of each complainant to go into evidence as exhibits and, thus, permitted the jury to have unrestricted access to those tapes during the course of their deliberations. It is contended by Mr. Priest, who appeared with Mr. Croucher for the applicant, that this was a fundamental irregularity which produced unfairness in the trial. These submissions were founded upon this Court's recent decision in R. v. B.A.H.[3]. Whilst, in my view, Mr. Priest's submissions are correct, it should be noted that this trial was conducted well before the decision in B.A.H. was published. I should also say that I make no criticism of the very experienced trial judge who was not referred to the considerable body of authority to which this Court referred in B.A.H., and who appears to have acted in accordance with one of the practices which, as O'Bryan, A.J.A. noted in B.A.H.[4], have apparently been adopted by judges of the County Court in trials where the evidence-in-chief of child complainants is given in accordance with the procedure outlined in s.37B of the Evidence Act.

34. I should also say that the Director, who appeared for the respondent, quite properly conceded that this ground of appeal would have to succeed unless he could distinguish the circumstances of this case from those which obtained in B.A.H.; a task which, as he recognized, was not easy to achieve. Essentially, his submission was that - upon a proper construction of the events which occurred at the trial - trial counsel for the applicant had agreed that the V.A.T.E. tapes should go before the jury for their unlimited use. For reasons which I will give hereafter, I do not think that the Director's submission can be supported by the material upon which he relied.

37. As this Court pointed out in R. v. B.A.H.[5], the procedure contemplated by s.37B of the Evidence Act represents a significant departure from criminal procedure as recognized by the common law. There is no doubt that the statutory procedure was introduced to mitigate the potential for emotional trauma which commonly afflicts child complainants when they are asked to recount - perhaps years later - events which are extremely personal and embarrassing to them. However, it should not be forgotten that what is visually and audio recorded is but part of the evidence in the trial; and - in the majority of cases - will be but part of the complainant's evidence in the trial. To permit the jury to have unrestricted access to this portion of the evidence, after the close of evidence, addresses and charge, is calculated to create an imbalance of fairness adverse to the interests of the accused because it courts the danger that the jury will afford disproportionate weight to this portion of the evidence taken out of its context. Of course the jury is entitled to be reminded of that portion of a child witness's evidence recorded on a V.A.T.E. tape; as it is entitled to be reminded of any other evidence in the trial. But if it does wish to be so reminded, then it should be done in open court and accompanied by the "balancing warnings" to which this Court referred in R. v. B.A.H.[6]. To permit the jury to have unrestricted access to a V.A.T.E. tape during the course of their deliberations will, in all but exceptional circumstances, constitute a fundamental irregularity in the trial which will not readily be saved by the proviso to s.568(1) of the Crimes Act. As the reasons for decision in B.A.H. disclose, this view appears to be in line with the views accepted in other common law jurisdictions in which the "VATE tape procedure" is permitted by statute. It is my opinion that, in this State, a V.A.T.E. tape should not be admitted as an exhibit in the trial; rather it should be marked "for identification". In my view s.37B of the Evidence Act permits this pre-recorded form of evidence to stand as "the evidence-in-chief of a [child] witness for the prosecution" (sub-s.(2)) and the recording is admissible in the proceedings "as if its contents were the direct testimony of the witness ..." (sub-s.(3)). The purpose of these provisions is, as I have said, to alleviate potential distress of child witnesses in giving evidence in the types of proceedings to which the provisions apply. Otherwise, the use of the technology - which s.37B contemplates - is not intended to distort the balance of fairness in the trial which the common law procedure in criminal trials is designed to preserve.

40. As I have previously indicated, the Director submitted that no miscarriage had occurred in this trial because trial counsel for the applicant had indicated his consent to the V.A.T.E. tapes going into the jury room and, in fact, had urged the jury to derive from them conclusions favourable to the applicant. However, it is clear that counsel's attitude was only adopted after the trial judge had rejected his application to exclude the V.A.T.E. tapes from the trial (an application made upon an insubstantial basis); and after his Honour had marked the tapes as exhibits in the proceeding. Thereafter, it appears to have been accepted by both counsel and the judge that the tapes would be available to the jury for their unrestrained use in the course of their deliberations. No cautions or warnings of the type to which this Court referred in B.A.H. were given to the jury at the time when they retired to consider their verdict, even though it appeared eminently likely - having regard to counsel's addresses - that they would be having recourse to the video tapes; and facilities, for that purpose, had been made available to them. It is true that, before the commencement of any evidence at the trial, the judge had given cautionary directions to the jury as to how they should treat the evidence to be given by the complainants through the video tapes; but the directions appear to have been those required to be given in respect of evidence given from a "remote location"[7]. The Director did not ultimately contend to this Court that these directions were sufficient to rectify the imbalance of fairness which had been created in the trial as a consequence of the jury being permitted to have unrestricted access to the V.A.T.E. interviews during the course of their deliberations.

43. It is apparent, from the reasons given, that I am of the view that there was a fundamental irregularity in the procedure adopted at the trial which has caused it to miscarry in a way which cannot be saved by the application of the proviso to s.568(1) of the Crimes Act. It is, accordingly, unnecessary for me to consider ground (ii) of the application which asserts that the "DNA evidence" given by Mr. Jones was erroneously admitted. Mr. Priest, in support of that ground, argued that there was an insufficient evidential foundation to support the opinion expressed by the witness[8]. Having regard to the fact that the Director, with his customary fairness, conceded that the evidence of Mr. Jones lacked the necessary "clout" to advance the prosecution case, and was more likely to confuse than enlighten the jury, it seems to me that it would serve no useful purpose for this Court to consider and determine the nature and content of the evidence which is required to provide a proper foundation for the expression of an opinion that a DNA analysis cannot exclude an accused person, to an expressed statistical probability, from having contributed to the sample of bodily fluid analysed. I would simply note this : that it is a fallacy to suppose that, because a DNA analysis of bodily fluid gives rise to an expressed probability ratio of 1:60, it can be assumed that the accused is 60 times more likely to have contributed to the crime scene sample than any other member of the Victorian population[9].

47. Section 568(1) of the Crimes Act requires the Court of Appeal to allow an appeal against a conviction by a jury if it thinks that the verdict "should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence ...". These words, frequently encapsulated by appellate courts in terms that the verdict is "unsafe or unsatisfactory", require the Court to be satisfied upon the whole of the evidence that it was not reasonably open to the jury to be satisfied of the appellant's guilt on the particular count beyond reasonable doubt[10]. However, in determining whether a verdict is "unsafe or unsatisfactory", the appellate court cannot 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 had the benefit of having seen and heard the witnesses"[11].

50. It was submitted on the applicant's behalf that the evidence in this case was so unsatisfactory that this Court should conclude that it was not reasonably open to the jury to be satisfied to the requisite standard of the applicant's guilt. In advancing this contention, Mr. Priest submitted that there were a number of features about the evidence which undermined its reliability. These included:

* The improbability of the complainant's evidence; namely the allegation of "kissing the vagina" of SL whilst she was in her sleeping bag and making each girl hold his penis in the presence of several other girls in the room.

* The fact that there was no support of any material kind for the evidence of either complainant.

* The concessions by SL in cross-examination that she was "pretty unsure" whether she was touched by anyone; and that "sometimes its hard to tell whether something is a nightmare or it's real".

* The inconsistency of the verdicts in respect of SL, which, in turn, give rise to disquiet about the verdicts in respect of NH.

* The sworn denials of the applicant and the supporting evidence of his wife and elder daughter.

59. None of these matters, either alone or in combination, would lead me to the view that the verdicts were "unsafe or unsatisfactory" in the relevant sense. All of them were matters for the jury who were in a pre-eminent position to resolve them, and who were carefully and thoroughly directed by the trial judge. For my own part, I do not see anything improbable about the circumstances described by the complainants; nor could I conclude that the concessions made in cross-examination by SL rendered the verdicts recorded on counts 1, 2, 5 and 7 "unreasonable" in the sense that I have described. The nature and content of the cross-examination of the complainants, particularly SL, only serves to underline the procedural irregularity which is the subject of ground (i) of the application. Essentially, this was a case of "word against word"; and in determining whether the charges had been proved, the jury was entitled to have regard to the consistency of conduct of the complainants, constituted by the immediacy of their complaints to the other girls in the room and, in the case of SL, to her mother. Nor, in my view, is there anything in the contention that the verdicts, which the jury returned in respect of the counts involving SL, were irreconcilably inconsistent. As I have previously noted, the Court took the opportunity of reviewing the V.A.T.E. tapes for the purpose of considering this ground of appeal. The review of those tapes, together with a review of the transcript of the other evidence in the trial, reveals, in my opinion, a logical basis for the verdicts which the jury returned. The counts, upon which the jury acquitted the applicant, alleged offences comprising the same conduct as that relied upon to support the preceding count or counts. The evidence was given in a way which left it open to the jury to reasonably conclude that the conduct alleged had happened once, but to have a reasonable doubt as to whether it had occurred on the occasions alleged in the succeeding counts. These were matters peculiarly within the province

of the jury who had been repeatedly told by the judge that they must give separate consideration to each count on the presentment, and that they were not to reason that, because they were satisfied in respect of one count, the applicant must be guilty of any other count. Accordingly, I would not be prepared to conclude that the verdicts of guilty recorded by the jury were not reasonably open to them on the evidence.

63. For the reasons given, I would quash the convictions sustained by the applicant, but would direct that he be re-tried on counts 1, 2, 5, 7 and 9 and the alternative to count 8.

68. I have had the advantage of reading in draft the reasons for judgment prepared by the learned President. Subject to two qualifications which do not affect the outcome of the case, I agree in those reasons and in the orders that his Honour proposes.

71. The first qualification is that, in concurring in the order that the applicant be released on bail at the conclusion of the hearing, I was not influenced by the fact that he had served a significant part of the non-parole period. To my mind it was sufficient that the Court had decided that the convictions would have to be quashed, that the applicant had been on bail before the trial in the County Court and that the Director did not oppose the grant of bail by this Court.

74. The second qualification is that, as in R. v. BAH[12], I would leave open the question whether unrestricted access to VATE tapes without directions from the judge is such a fundamental irregularity that the proviso is incapable of application. It is sufficient to say that the applicant was deprived of a chance of acquittal fairly open to him.

78. I agree in the reasons of the President and in the orders he proposes.

[1] [1982] VicRp 99; [1982] V.R. 971.

[2] [1993] SASC 4341; (1993) 61 S.A.S.R. 354.

[3] [2002] VSCA 164 (delivered on 18 October 2002).

[5] At [3] per Winneke, P.; and at [24] per O'Bryan, A.J.A.

[6] At [11] per Winneke, P.; at [17] per Callaway, J.A.

[7] s.37C(4) Evidence Act.

[8] cf. R. v. Ryan [2002] VSCA 164.

[9] cf. R. v. Doheny & Anor. [1996] EWCA Crim 728; [1997] 1 Cr.App.R. 369 at 372-4; R. v. Keir [2002] NSWCCA 30; (2002) 127 A.Crim.R. 198.

[10] M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493; per Mason, C.J., Deane, Dawson and Toohey, JJ.; M.F.A. v. R. [2002] H.C.A. 53 at [25] per Gleeson, C.J., Hayne and Callinan, JJ.; per McHugh, Gummow and Kirby, JJ. at [59]-[61].

[11] M. v. R., supra at 493, per Mason, C.J., Deane, Dawson and Toohey, JJ.

[12] [2002] VSCA 164 at [13] and [16].