R v M L [2009] VSCA 106

2 He has now applied for leave to appeal against these convictions and the sentences imposed in consequence.

The application for leave to appeal against conviction

1. The learned trial judge erred by finding that the complainant B was capable of discriminating between truth and lies and finding that B was a competent witness as a consequence.
2. The learned trial judge erred by failing to discharge the jury in light of the prosecution's failure to call the informant Lamb and the prosecution's late disclosure of documentary evidence.
3. The learned trial judge erred (a) in directing the jury that there was evidence of uncharged acts given by the witness B that could qualify as evidence of context or relationship, and, (b) in failing to direct the jury that uncharged act evidence was required to be proven beyond reasonable doubt.
4. The learned trial judge erred by discharging a juror in the absence of any necessity or high degree of need.
5. The verdict of guilty on Count 6 is unreasonable or cannot be supported having regard to the evidence.

6. An aggregate of errors has caused the trial to miscarry.

4 There is, in view of the conclusions, at which we have arrived, no need to set out in any detail the evidence adduced in the trial. Essentially, the prosecution asserted that the applicant engaged in various acts of sexual abuse against his six year old daughter, B and his 15 year old niece T. The conduct alleged consisted of sexual touching, digital and penile penetration. He made no admissions when interviewed by the police and contended at the trial that there was no substance in any of these allegations, claiming, through his counsel, that the children had been manipulated into making them by the applicant's former wife and her sister, following marital breakdown.

5 The principal evidence against the applicant, consisted of VATE tape recordings of interviews of the children in which they provided versions of events indicating that he had offended against them in the ways alleged. In the interviews, however, they spoke also of a number of uncharged acts of a sexual character. The reliability and credibility of their versions and those of their mothers with respect to both the charged and uncharged acts was challenged by reference to evidence concerning the content, sequence and timing of various complaints and the apparent absence of any mention of some at relevant stages and, of course, the background relationship between the adults.

6 It is apparent from the transcript of the trial that the acceptance of the central features of the evidence of the children and their mothers was crucial to the outcome and that this was recognised from the outset by the judge and counsel involved.

7 His Honour stated at one point in his charge to the jury for example -

I mean your quest of course is to determine whether you can believe them or not [the witnesses] and to what extent you can believe them. And so you have to use every tool available to you in that quest, in a case like this of course, where there is huge issue, dispute, as to the credibility of a large number of the witnesses - most of the important witnesses. It is the most dramatic conflict in evidence effectively, or dramatic dispute and challenge - is the word I am looking for - the most dramatic challenge to the evidence of most of the important witnesses that you could imagine. On the one hand the Crown is saying you should believe them, believe them very substantially and on the other hand the defence is saying you should not believe them at all on the important aspects of their evidence. So there is a total conflict and challenge and you have to use every available tool. So you have to apply your common sense. You are meant apply your common sense. You apply your joint and collective wisdom, logic, common sense, experiences of life. You have got to - and it is obviously a very important function you are going to have in this respect. You are going to have to put your thinking caps on. You are going to have to weigh up evidence, the consistency of it, the likelihood of it, whether things jell together, whether things ring true according to your experiences of life or whether they do not, whether they seem far fetched or fanciful. And so you analyse the substance of what is being said in that way and you can analyse the demeanour of witnesses and the way they present it and you do that in ordinary day life; you can do it here in determining whether you believe all or some of what they said.

Think about their evidence. Think about the chronology of things. Think about what they knew at the time, what they did not know at the time. Think about various of motivations from time to time. They are all relevant considerations. And you will have to go into it carefully.

8 In this, and in other passages in the charge, the jury was instructed to have regard to the entirety of the material before them when assessing the truthfulness and reliability of the various witnesses, using their 'common sense, experiences of life' and indeed 'every available tool'. Clearly, this direction encompassed the evidence concerning the alleged uncharged acts. On that aspect, his Honour said -

... underlying all counts, there will be some general evidence that may relate to things like motivations and relationships and that sort of thing. They are all underlying everything and that evidence effectively can be related to each count on the presentment because it underlies all of them. So you have got a mixture of some exclusive evidence and some general evidence that is relevant across the board, or you may consider relevant across the board.

Now, I want to talk to you about that general relationship and contextual type of evidence that underlies a whole of what is alleged throughout these periods. In relation to T and her complaints, what is the relationship between T and the accused. You have heard about the specific incidents, alleged, the five incidents on the counts, but you have also heard of other incidents that have not been subject of charge. As you have heard, for example, about numerous piggy-back rides. He did it, she says, more than once. You have heard about other play wrestling, he did it more than once. And the same applies to B, it is not suggested in the end that there was only one incident of penile penetration or one incident of penile penetration, she talks about it happening at times when she went to visit and before the parents broke up when the mother was at work.

Normally, in some cases, you are not allowed to hear about other wrongdoing. A jury would not be allowed, in the course of a trial, in fact it was in the paper last week over that Mildura driving incident. Of course the paper comes out afterwards and said, 'Oh, what the jury did not know when they went in to deliberate because priors were not put to them.' And so here we are not talking about priors, we are talking about other incidents of alleged wrongdoing, namely the other incidents of touching that have not been charged. I have not attempted, and it would be ridiculous to attempt to keep that from you. You are entitled to hear about it because it forms part of the total picture. It would be sterile to pull out one incident and leave the others out, it allows you to talk about the full picture about what went on between, or what is alleged to have gone on between M and T over the years and what went on between M and B over the years, giving you a full context is only right and proper. And not only does it allow you to understand the context but it also may help you, it may, to understand the relationship between M and these two girls. His feeling towards them may be - his closeness towards them may be something you wish to think about. I mean, I am not telling you what to find but all I am saying is, the evidence of other dealings, some of them wrong dealings over the years, is to some extent, it is not a big deal in this case, but to some extent it is before you and you are entitled to consider it but you are only entitled to consider it for the particular purpose of understanding the relationship between M and T, and the relationship between M and B, and to understand the context of where the particular charged events fall in the overall context so that you are not led to believe that these were necessarily one-off incidents that therefore may have some sort of unusual appearance about them but they happened in the setting of a broader spectrum, you are entitled to know that. So you are entitled to look at the overall setting over the years and any relationship that you may be assisted to understand because of that evidence. So you are entitled to use it for that reason to the extent that you accept it, of course. I do not know to what extent you may accept it, you may not accept it, but assuming you - well if you accept that there was such a relationship, I mean it is all in dispute of course but if you do accept that it existed, you can use it for the purpose of understanding setting, context, relationships.[1]

9 He then provided the jury with a propensity direction concerning which there has been no complaint and concluded this section of his charge, saying -

I just want to summarise that again because it really applies in three different ways in the light of what I have just now explained to you over the last 10 minutes or so. Firstly, as I have explained, in the course of each girl, you have heard of alleged uncharged wrongful acts, other wrongful acts. That is No.1. Number 2, in relation to each girl on the presentment there are more than one count so when you are dealing with Count 1 you have heard of Counts 2, 3, 4 and 5 and when you are dealing with Count 2 you have heard of Counts 1, 3, 4 and 5 and so on. And with B when you are dealing with 6 you know about 7 and when you are dealing with 7 you know about 6, so again, when you are dealing with each count you know about the other charged acts, so you know about the uncharged acts and you know about other charged acts, and when you are dealing with T you know about B, and when you are dealing with B you know about T so in addition, thirdly, you know about the complaints or the allegations made by the other girl.

Of course, it is your decision alone whether you are satisfied that he did commit the uncharged acts or whether he did commit the other charged acts or whether he did commit the other offences with the other girl. They are all questions you have to decide.[2]

10 They were told to have regard to the evidence of the uncharged acts as possibly demonstrating the 'closeness' of the applicant to the two children and as providing a 'context' for the evidence relating to the counts before them. It is apparent that that context was one in which the complainants said that there had been repeated acts of sexual abuse. What his Honour intended to convey by the use of the terms, feeling, closeness, or relationship was not made clear. He did refer to the evidence of what was alleged to have 'gone on' over the years as allowing the jury to understand the 'context' within which the evidence of the complaints had to be assessed, as well as helping them to 'understand' the relationship between the appellant and each of the girls.

11 There is a strong likelihood that the jury would interpret these instructions as informing them that they could use the evidence of the uncharged acts as indicative of the existence of a strong sexual interest by the appellant in the two alleged victims and thereby increasing the probability that he had offended in the manner and on the occasions alleged in the counts before them.

12 The state of the law in Victoria with respect to evidence of this kind was considered by this Court fairly recently in Sadler[3] following the expression of differing views by the members of the High Court in R v HML.[4]

In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig,[5] and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.

...

Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.[6] (Citations omitted)

14 Although the members of the High Court in R v HML differed as to the approach to be adopted with respect to the issues presented by the introduction into a trial of evidence of uncharged acts, there was a common recognition of the danger of a miscarriage of justice that could arise if care were not taken to ensure that evidence of this kind was sufficiently probative to justify its admission notwithstanding its obvious potential prejudicial impact and the fundamental importance of the provision by the trial judge of adequate jury instructions concerning it.

15 The jury in the present case was instructed with respect to the burden and standard of proof in a criminal trial, the need for separate consideration of the case presented with respect to each complainant and each count and, as earlier mentioned, they were also given a conventional propensity direction. However, his Honour gave no instructions as to the standard of proof to be applied to the evidence of the uncharged acts.

16 As we have pointed out, the Court made clear, in Sadler, that a judge should ordinarily assume that a real risk exists that the jury will take the uncharged acts which they accept were committed by an accused into account in assessing the likelihood that he or she was guilty of those charged. Therefore, it was stated, the judge should ordinarily direct the jury that they should not conclude from such evidence that the accused had a sexual interest in the complainant unless they are satisfied beyond reasonable doubt of those acts. In the present case, it is, in our view, unrealistic to regard them as possibly being used otherwise. The jury was provided with virtually no guidance as to the use to which the evidence could be put, and nothing was said with respect to the applicable standard of proof in a case where the central questions of fact to be determined involved the consideration of the credibility and reliability of the evidence of the major witnesses.

17 His Honour's general instructions with respect of the standard of proof can not be seen to have dealt with this aspect in an adequate fashion. He directed the jury (inter alia):

in all criminal cases including this one, of course, the burden of proving the necessary items of fact that go towards the conviction and the ultimate burden of proving guilt lies on the Crown. The Crown have to prove the case. The Crown have to prove it and all the necessary and important facts that lie behind your reasoning, and they have to prove it on the criminal standard of beyond reasonable doubt, not on any lesser standard.

So what I am therefore saying to you, and I know it is not a complete answer, I cannot give you a complete answer, all I can say to you is this, that of course if you are not satisfied of something at all well then it is easy. If you are satisfied of something, I am talking about something important now in terms of the elements and ultimate verdicts, I am not talking about lesser facts. I told you yesterday, I think it was, that the Crown does not have to prove every subsidiary fact beyond reasonable doubt but the things it does have to prove beyond reasonable doubt, if the best you can do at the end of your deliberations is to say yourselves, 'Well, that is probably acceptable' or 'I find that is probably the case but I cannot take it any further than that', well that is not enough.

18 The potential for a miscarriage of justice in that situation is apparent and we consider that the complaints made under ground 3 possess force. It is clearly not a situation for the application of the proviso in s 568(1) of the Crimes Act 1958 and the application for leave to appeal against conviction must therefore succeed.

19 With respect to the other grounds, we need only comment briefly.

20 Under ground 1, the contention has been advanced that the trial judge fell into error in finding that the complainant B was capable of discriminating between truth and lies and could therefore be called as a competent witnesses.

21 As counsel for the Crown submitted, this ground could only succeed if the Court were satisfied that it was simply not open to his Honour to reach the impugned conclusions on the basis of the material before him. Having perused the trial transcript and the VATE tape recordings relating to B, we do not consider that it has been demonstrated that he fell into error in this respect. The most that could be discerned with confidence from the material before us was that the child seemed, on occasions, to have experienced some difficulty in answering questions, many of which, were poorly expressed, unclear as to subject or context, or required her articulate concepts or distinctions beyond her years.

... Yes, well, I'm satisfied, bearing in mind her age and her Grade 3 at school and her general level of comprehension that she knows the difference between telling a story that she believes is right and telling one that she knows to be fabricated or wrong but I don't think she has a sufficient awareness of the oath to make it worthwhile administering it;[7]

24 There is no need to address grounds 2 or 4 which raise complaints specific to the trial.

25 With respect to ground 5, the argument has been advanced that the jury ought to have had a reasonable doubt concerning the applicant's guilt on count 6. Reliance was placed upon three contentions in particular to support this claim. First, counsel submitted, it was doubtful whether B had any recollection when giving evidence of the commission of the act alleged. Passages of her evidence which, it was said, demonstrated the uncertainty of her recollection were drawn to our attention. However, upon consideration of them, it is hardly surprising that the child would have experienced difficulty in understanding and responding to some of the questions asked of her as they were in form and context that was almost certainly incomprehensible to her. For example, -

What do you understand about that video that you just saw?---I'm not really sure.

The two. You're not really sure.

HIS HONOUR: A question that wide has got no hope of being answered by a girl of this age, I would've thought.[8]

26 Ultimately, after what must have been a confusing process to her, B was asked by counsel for the applicant in the course of cross-examination -

COUNSEL: Do you remember anything that you saw on the video?---No.

Is it possible that the things didn't happen, you thought they happened but they didn't happen?---I knew they happened but I don't really remember much.

You tell us all you do remember. We know you don't remember much, but just tell us what you do remember?---Well, I remember him taking me into his room.

And what happened?---And he did it.

Did what?---He did what I said on the video.

Say it again, please?---He put his finger in my rude part and his doodle in my rude part.

When do you remember him putting his doodle in your rude part?---I don't remember when he did it.

Do you remember how many times he did it?---No.

Was it more than once or just once?---More than once.[9]

27 The judge was careful to ensure that the jury were mindful of the care with which the evidence of the children had to be approached, saying in relation to B:

There are certain features about each case, particularly B's, which you may or may not think about and that I am therefore required to remind you about and give you a direction about. Take B first, because it is more obvious in her case. She is a girl who is - you will make up your mind about her - you have seen her twice, you have seen her at two ages, once when she was six and once when she is eight. You will make your own mind up about her intelligence levels at the various times and concentration levels and maturity levels and those sort of things. Clearly they are factors to consider though. And you heard what Dr Wells said about, in any case dealing with young children of that sort of age, there is an understandable lack of capacity to properly appreciate certain facts and features of these sexual sort of matters, and you probably did not need him to tell you that but it is as well that he reminded us. So that is one thing. Capacity to properly appreciate exactly what we at our age and in the context of the Crimes Act of this State have to regard as very serious but nevertheless intricate detail as to, you know, the precise meaning of penetration and that sort of thing. So that is the first thing.

Secondly, the litigation process as you have seen it operate here as best it can, involves the Crown calling its witnesses and the witnesses being tested by cross-examination. That is the whole point of cross-examination. It is a very significant part of our criminal justice and, for that matter, civil system that witnesses get tested on what they say and they are put to the test and other propositions and other evidence that is available can be put to them to see how they stand up and some might be shown to be untruthful, some might be simply shown to be unreliable, not deliberately untruthful, or some may be shown to be both truthful and reliable, but that is the whole process, and it depends to a large extent on the capacity to usefully cross-examine witnesses.

Now, it is a matter for you to put your own appreciation on it but it seemed to me B was not able to be very usefully cross-examined and the defence lose a valuable tool in that regard. And also there is the other factor that you did not see her in court, she gave her evidence through the screen and your capacity to fully appreciate her demeanour and so on is obviously compromised a bit.

Thirdly, in her case, and it does not really have any relevance I do not think to T's case, but in her case, we have got the absence of the witness Lamb and some peculiarities have arisen as I need not remind you what they are. So those features exist in relation to B and the law requires me to say, you may think sensibly because of those factors, that it is dangerous for you to convict the accused in relation to B's counts when you bear in mind those considerations, B's evidence being uncorroborated. Now, to say that it is dangerous to convict is a necessary warning to make you understand the gravity of it but it is not to say that you can't convict. If you bear in mind what I have just said about the dangerousness of convicting - if you bear that in mind so that you keep the gravity of the factors in mind and if having done so and scrutinise her evidence very carefully - if you are satisfied that you can accept it beyond reasonable doubt, you are entitled to convict.

So I am not saying you cannot convict but I am saying that you should bear in mind the warning I have given you and you should scrutinise the evidence in her two counts very carefully and if, having done so, you are prepared to accept that the Crown have proven the counts beyond reasonable doubt, you are entitled to convict.

28 A similar instruction, modified to deal with her specific age and level of maturation was given in respect of the evidence of T.

29 It is to be presumed that the jury acted on the basis of these directions and concluded that, bearing them in mind, they were satisfied beyond reasonable doubt of the reliability of the central features of the evidence of B on this count. We do not consider that her evidence can be seen to be so uncertain or unreliable that a verdict based upon it could be properly designated as unreasonable or unsafe.[10]

30 Secondly, it was argued that the jury ought to have had a doubt as to whether the act encompassed by count 6 was 'distinct from an act wherein the applicant administered to B bona fide for medical reasons'. There was evidence that the child, on occasions, had to be treated with cream for rashes in the genital area and it was unclear that she was not referring to such occasions, it was said. B was cross- examined about this and a number of her answers were contradictory.

[B], I'm just going to go back to that time, the first time you were at the police station and the camera was on and the police officer was asking you some questions, and this is the one you watched the other day and you saw yourself telling the police officer that your dad put your (sic) finger up there, being the rude part. Do you know what I'm talking about?---Sort of.

I'll try and make it simpler so that you can follow me. The other day when you were talking to us we started out by showing you the video of you when you were six at the police station talking to the police officer. Do you remember that?---Sort of.

Do you remember watching it the other day?---Yes.

Do you remember in that video the other day you told the police officer, and this is you talking when you were a little girl, when you were six, okay? The video was taken when you were six, do you understand that?---Yes.

And you watched yourself on the screen on this video that was taken when you were six and you were saying to the police officer that dad put his finger up there, being your rude part. Do you remember that?---Sort of.

And on that video you said to the police officer that when he puts his finger up there your rude part was sad, it felt sad, not very happy. Do you remember that?---Sort of.

What I want to know is when your rude part felt not very happy because your dad put his finger up there was that a different time to when he put cream on?---Yes.

Thank you, [B],

HIS HONOUR: In fact when you were telling the police you said he put his finger in and turned it around. Do you remember that?---Sort of.

Well I'll just ask you once again: when he put the cream on was that when he used to put his finger in so that you didn't like it, or was that a different time?---A different time.[11]

32 Again, the jury who had observed what had transpired when she gave evidence had to make an assessment of her reliability as a witness. It can be reasonably inferred that they would have considered the various possibilities including the absence of any real recollection of the alleged event or confusion as to the circumstances under which possible partial insertion of the applicant's finger may have occurred. We are not persuaded that the finding that they made was not reasonably open in the circumstances.

33 The third argument advanced under this ground was that there was inconsistency between the verdicts reached on counts 6 and 7. The only rational basis for distinction being made between them, it was said, was that the jury considered that B's mother had 'engineered' the evidence on count 7 but rejected that this was so in relation to count 6.

34 According to B's mother, she was taking the child to school on 22 August 2005 when she asked 'Has anyone touched you?' She stated that she did so as she was apprehensive because the child had spent time with her estranged spouse and the company of his parents. She said that B answered, 'yes, her Daddy had done so.' This statement prompted her to make a report to the child's school and the police. In consequence, B participated in two VATE tape interviews, the first of which provided the background, description and circumstances relating to count 6, and contained the following passage:

Q: Okay. Alright. And does Dad live at home?

A: No.

....

Q: Okay. And do you still go and see Dad?

A: Yes, but not any more.

Q: Mm. Tell me about - tell me why (sic) don't go and see him anymore.

A: I told you once.

Q: I need you to tell me again.

A: Why?

Q: Yeah. Tell me - tell me why you don't go to see Dad.

A: Why?

Q: Cos you only told me a little bit and I need to know the, all the story.

A: Because he puts his finger up here (indicates vagina).

T9 She doesn't see her dad anymore because he puts his finger up there (she indicated her vagina). It happens in the morning. 'Makes her not happy.'

T10 He does 'cos he will get her a rat if she does it. She will get a pet rat if she does what he does. Like put his finger up there (she indicated her vagina) and she doesn't like it. Down there was called rude part.

T11 When it happens she stays at dad's house. When she goes in her play area he just comes up and takes her to his room and does it.

T12 He dies (sic) this (indicates vagina). He puts it in and turns it around. Its not very happy (indicates vagina). She does not like it.

T14 He puts it up there and she doesn't like it. She tells dad to stop, but he wouldn't stop.

T15 He puts it in her rude part. Dad's name is Matt.

T16 She feels not happy about going to see dad.

T24 What she said about her dad was not a lie. It was the truth. Her dad used the middle finger. Cos she was looking at him when he puts it in.

36 In the second interview some months later, B said that there had been penile penetration (count 7). When asked by the interviewer to tell her about this, the child shrugged her shoulders.[12]

Q: Okay. What does he do from his doodle usually? What did he use it for?

A: I don't remember

Q: Okay. And what - your rude part - tell me about that when he put his doodle in your rude part, what's - what do you use your rude part for?

A: Weeing

Q: Okay. Tell me about when he put his doodle in your rude part.

A: I don't remember.

...

Q: What - can you remember what time of day it was when that happened?

A: No.

Q: Day time or night time or ---?

A: Daytime and night time.

Q: Okay

A: both.

Q: How many times had Dad done that?

A: I don't know.

37 The victim, when questioned in the trial said that she 'sort of remembered' her father inserting his finger, but she did not remember the penile penetration at all.[13]

38 The jury returned a verdict of guilty on count 6, and acquitted the applicant on count 7. An obvious explanation for this different outcome is that the evidence proffered in relation to the respective counts varied significantly in quality.

39 When later imposing sentence, the judge stated that -

In relation to the count concerning your daughter on which you were found not guilty - this was, of course, the more serious allegation of penile penetration which did not arise initially in August 2005 but only arose some months later - the jury may well have, in my assessment of it, I could be wrong, taken the view that that witness, your daughter, was indeed imposed upon to some extent, or, whether she was or not, that any allegation she may have made at that later time lacked the degree of spontaneity required for acceptance.

I must say, I find the verdicts of the jury to have shown careful deliberation and to be verdicts which are certainly capable of understanding, for the reasons I have just outlined. Sometimes juries come back with verdicts that are hard to follow and one suspects some kind of compromise. Here, far from it. I find that the verdicts are very, if I may say so, proper ones on the evidence, although it is certainly not a matter for me. [14]

40 That assessment was reasonable in the circumstances. There was accordingly no substance to the complaints covered by ground 5 which therefore must fail.

41 There is no need to address ground 6 or the application for leave to appeal against sentence.

42 In the circumstances, the complaints in ground 3 having been substantiated, we are of the view that the convictions cannot stand and a re-trial should be ordered.

[3] R v Sadler [2008] VSCA 198.

[4] HML v R (Matter No A23/2007) [2008] HCA 16; (2008) 235 CLR 334.

[5] Namely, that the evidence sought to be admitted supports the inference that the accused is guilty of the offence charged, and the evidence sought to be admitted is open to no other, innocent, interpretation.

[6] R v Sadler [2008] VSCA 198, [59]-[60].

[10] M v R [1994] HCA 63; (1994) 181 CLR 487.