R v Martin [2000] VSCA 163

10. Five grounds of appeal against conviction were substituted by order of the Registrar made on 10th August 2000, but in the event ground 1 was abandoned and ground 5 was not separately argued.[1] The other grounds read:

"2. The failure of the Crown to call the applicant's former partner caused a miscarriage of justice. (a) The learned trial judge erred by not giving a Jones v. Dunkel direction to the jury in relation to the Crown's failure to call the applicant's former partner as a witness, and by ruling that such a direction, if made, would, in the circumstances of this case, be equally applicable to the defence and the Crown. (b) The learned trial judge erred by not directing the jury to refrain from speculating as to why the applicant's former partner was not called or what evidence she might have given and to decide the case on the evidence before them. 3. The learned trial judge did not direct the jury sufficiently about the lack of corroboration. 4. The learned trial judge erred by not fairly putting the applicant's case to the jury when summarising the evidence."

14. Before turning to counsel's submissions, it is necessary to say something of the facts and especially of conflicts in the evidence on which it is said that evidence from the applicant's former partner could have thrown light.

17. The complainant testified to three occasions on which the applicant indecently assaulted her during school holidays. She maintained that they were the holidays in September 1986 but it is more likely that they were the following summer holidays in January 1987. The applicant together with his then de facto wife and their four children had been staying with the complainant's family in Ballarat, after which she and her younger sister returned with them to spend two weeks at their home in Geelong. She recalled a day towards the end of the first week or the start of the second week when she was badly sunburnt. Her back was blistered and the applicant told her not to play outside.

20. For that reason she was sitting in the loungeroom watching television while the other children were playing outside under a hose. She said that the applicant asked to check her sunburn and she went over to him. The applicant said that he would kiss her sunburn better. He kissed her on the mouth and then inserted his tongue into her mouth and down her throat. That was the foundation for count 1 on the presentment. The complainant did not remember where the applicant's former partner (to whom I shall usually refer, in conformity with the argument, as "the complainant's aunt") was at that time.

23. The complainant said that on the following day she and her uncle were in the kitchen playing cards. The applicant again asked to check her sunburn and she went over to him and sat on his knee. He held the back of her head and started kissing her. Again he inserted his tongue into her mouth but this time he also reached up under her skirt, rubbed along her leg and either touched or inserted his finger into her vagina. The Crown went to the jury on the basis that touching the girl's vagina was enough, but she gave evidence of penetration and the applicant was sentenced on count 2 on that basis.[2]

26. The complainant said that the assault hurt and she screamed. That attracted the attention of her aunt, who came into the room to find out what was wrong. According to the complainant, the applicant said that the girl's sunburn was hurting and then told his wife to run a bath for her. The complainant testified that she said nothing because she was crying and upset but that her aunt did run a bath and she hopped into it. Her evidence-in-chief continued:

"Did anything happen while you were in the bath?---Yes, my uncle come into the bathroom. And was your auntie still in the bathroom when he first came in?---Yes, she was. Were you wearing anything at that stage?---No, she stuck a flannel across my vagina area. Where was your uncle standing in relation to you; you were in the bath?---He was standing up against the wall. Was he, at that stage, when your auntie was there, saying or doing anything?---No, she ended up leaving the room and getting some cream for my back. When she left the room was anything said or did anything happen then?---Yes, he threatened if I told anybody he would harm my family. When you say 'harm', did he use any particular word?---Yes, he would kill my family."

30. The assault the subject of count 3 was said to have occurred a few days later. The complainant was in the loungeroom with the applicant and his wife. The complainant's evidence was that her aunt left the house to go up the street and buy some milk to make coffee. She wanted to accompany her but the applicant would not let her do so, ostensibly because of her sunburn. Once they were alone, the applicant went over and started to kiss the complainant. He sat down beside her and again inserted his tongue into her mouth. Cuddling her with one arm, he slid the hand of his other arm up her skirt and "put his finger up [her] vagina once again". The complainant said that it hurt a lot and that she told him not to do it. At that stage her aunt returned from the shops. The girl was standing there crying. Her aunt asked why she was crying and upset, but she was too distressed to answer and the applicant again said that the problem was sunburn.

33. The defence case was that none of the indecent assaults occurred but that there had been an incident that had become magnified and confused in the complainant's recollection. There was an occasion during the holiday when the complainant's father had hurt her feelings by showing more affection to her sister. She agreed in cross-examination that she had spoken to her uncle about being upset and that he had given her a kiss and a cuddle to comfort her. She also agreed that he had touched her sunburnt back and that that had hurt and she had cried out. But she said that that was an entirely separate incident from the indecent assaults and that she did not recall her aunt's presence on that occasion.

36. The applicant said that he had indeed comforted the girl, giving her a kiss and a cuddle and "acting the goat trying to get her out of her miseries". He denied that he had put his tongue into her mouth but said that he had given her "a slidey kiss". He said that meant he had poked his tongue out a little bit and slid his mouth across the girl's lips. He had also tickled her on the tummy to try to make her laugh but she got off his knee and started to cry. His wife walked in and asked what was wrong. The applicant said "I'm just trying to find out myself". He asked the complainant what was wrong and she said that her sunburn was hurting. It was on that occasion and in those circumstances, he said, that his wife had run an electric soda bath for the girl, but he did not go into the bathroom or threaten her.

39. Counsel summarized the defence case when he put it to the complainant that she had magnified out of all proportion an entirely innocent but painful encounter between herself and her uncle into three episodes which had somehow in her memory become sexual abuse. She denied that that was so. It was also part of the defence case that, during that January, the applicant was not at home during the day, because he was renovating another property, and accordingly there was no occasion on which his wife went up the street to buy milk to make coffee whilst he and the complainant were left alone in the house.

42. It will be apparent from the foregoing that the complainant's aunt was not said to be an eye-witness to any of the assaults. It was said, however, that she came into the room when the girl cried out after the assaults the subject of counts 2 and 3. It could be argued that, in the relevant sense, she heard them being committed. The defence was that there were no such assaults but that the complainant's aunt came into the room after the episode of the "slidey kiss" and the cuddle. According to the applicant, it was the complainant, not the applicant, who said that she had cried out on that occasion because of her sunburn. Depending on her memory of events so long ago, the aunt may also have been in a position to give evidence as to whether the applicant was present when the complainant took a bath, whether after the innocent encounter or the second indecent assault. It might also be expected that she could have given evidence as to the likelihood of there having been an occasion during which the applicant was home during the day and he and the complainant were left alone in the house.

45. Mr Boyce's main contentions under cover of ground 2 may be summarized as follows: first, there were so many aspects of the case on which the complainant's aunt could have thrown light that the omission to call her occasioned a miscarriage of justice; secondly, the learned judge should have directed the jury to infer, from the fact that the complainant's aunt was not called, that her evidence would not have assisted the Crown; thirdly, his Honour erred in ruling that, if such a direction were given, he would tell the jury that it was equally applicable to the prosecution and the defence and that ruling deflected defence counsel from advancing a Jones v. Dunkel[3] argument; and, fourthly, even if the direction contemplated by counsel's second contention was not called for, his Honour should have directed the jury to refrain from speculating as to what evidence the complainant's aunt might have given had she been called. It was also contended that the evidence of Senior Constable Mazengarb, to which I shall refer later, was prejudicial to the applicant.

48. The prosecutor's duty as to the calling of witnesses has often been explained[4], but the decision not to call a particular person will constitute a ground for setting aside a conviction only if it is seen to give rise to a miscarriage of justice when it is viewed against the conduct of the trial taken as a whole.[5] The words "when viewed against the conduct of the trial taken as a whole" are important. The critical question on appeal is not whether the prosecutor failed in his or her duty or committed an error of judgment but whether there has been a miscarriage of justice.[6]

51. It may well be that the complainant's aunt could have thrown light on at least four parts of the evidence where there was a difference between the complainant's account and that of the applicant, namely whether there were two occasions, or only one, when the complainant's crying out attracted her attention; who it was that said that the girl was crying because of her sunburn; whether the applicant was present when her aunt gave her a bath; and whether there was an opportunity for the applicant to commit the third offence in the circumstances alleged by the complainant. She had, however, refused to make a statement to the police[7] and the applicant had not spoken to her for some nine years and did not wish to do so. Neither side had a proof of her proposed evidence. The defence was aware that the Crown did not propose to call her as a witness and did not request that she be called. There had been no committal and her name could not be endorsed on the back of the presentment, except by leave of the judge as an additional witness.[8] It is doubtful, even in the abstract, whether she could be described as a witness whose evidence was necessary to unfold the narrative and to give a complete account of the events upon which the prosecution was based.[9] How could that be said when neither side had a proof of her evidence concerning, in a sense peripheral, events that had occurred some 12 or 13 years previously? It is easy to understand her not being called by the Crown.

54. There is similarly no difficulty in appreciating the reasons for the defence's acquiescence in that course. I shall come in a moment to counsel's intention to advance a Jones v. Dunkel argument before the jury and to ask the judge for a corresponding direction, but there was also reason to think that her evidence would not assist the defence. The applicant gave the following evidence in examination-in-chief.

"You subsequently separated from your then de facto partner, Roslyn; is that right?---That's right. What happened with her; where did she go?---She cleared off with my brother. Where did she go?---Queensland. What contact have you had with her in the last ten years?---Well, last ten years - well, I haven't spoken to her for about nine years. All right?---I did see her approximately about four year ago at my son's wedding but we didn't talk or anything."

In cross-examination he was asked whether he had tried to contact her and answered, non-responsively, "I don't want to contact her."

59. For these reasons I would not uphold counsel's first contention. I turn to the second, which was that the judge erred in not directing the jury to infer that the evidence of the complainant's aunt would not have assisted the Crown. As Buchanan, J.A. pointed out in the course of the argument, there is some tension between a direction in those terms and the prosecutor's duty, which often obliges him or her to call material witnesses unfavourable to the Crown case.[10] How then can it be said that the jury may infer, from the omission to call a witness, that the evidence of that witness would not have assisted the Crown? It may be that the prosecutor considered the witness unreliable or did not think that the evidence was necessary to ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused.[11]

62. Be that as it may, the omission of such a direction is unlikely to cause a miscarriage if the omission to call the witness is sufficiently explained and the explanation is not challenged. In the present case Senior Constable Mazengarb, who was one of the police officers who interviewed the applicant, gave evidence that, during the course of the police investigations, the complainant's aunt had been asked to make a statement and had refused. She was not challenged on that point and there is no reason whatever to doubt the truth of her account. Mr Boyce submitted that that was an inadequate explanation because of the prosecutor's duty to call material witnesses. So far I have had only to decide that the omission to call the complainant's aunt did not occasion a miscarriage of justice, but I would go further and say that the prosecutor was not in breach of duty. That being so it is unnecessary to decide whether, in other circumstances, it might not be a sufficient explanation to say that a witness had refused to make a statement.

65. The third contention, relating to what was said to be his Honour's ruling that any Jones v. Dunkel direction would apply equally to the defence and the prosecution, arises from discussion at the trial prior to final addresses. The prosecutor apprehended that defence counsel would advance a Jones v. Dunkel argument to the jury. Defence counsel confirmed that he was proposing to say that the jury had not heard from the complainant's aunt and that they could assume that she would have not assisted the Crown if she were called. His Honour observed that that would call for a direction. The exchange continued:

"HIS HONOUR: It applies to both sides. MR THOMSON: Yes. HIS HONOUR: It applies to the defence as well in a criminal trial. MR THOMSON: Yes, but Your Honour, the Crown doesn't say - - HIS HONOUR: It's just as open for Mr Leckie to make the same comment about the defence failure to call her too. You provided an explanation and so has he. MR THOMSON: Yes. HIS HONOUR: It's a matter for the jury. I must say I don't think this, in the context of - I mean, it's open to a jury to reject those explanations but I must say it's going to create more confusion than anything else but - - MR THOMSON: I hear what Your Honour says. HIS HONOUR: --- it's a matter for you. I'm not - all I can say is, if I am required to give a Jones v. Dunkel direction, I will say that it applies to both the Crown and the defence. MR THOMSON: Yes, as Your Honour pleases. I will - I'll have to have a think about that before I now decide what I'm going to do in my address having heard that."

69. If the judge meant that an adverse inference from the omission to call a witness could be drawn against the defence in the same way, for the same reasons or with the same force as it could be drawn against the Crown, he was in error.[12] Counsel would also have been in error in not making submissions to the contrary. It is more likely that all that his Honour was saying, and all that counsel was accepting, was that Jones v. Dunkel considerations would apply to both sides on the facts of this case. It was open to counsel to make submissions in due course as to the precise terms of the directions. In the event that was not necessary, because neither side advanced the foreshadowed argument and no directions were given or sought.

72. I think it unnecessary further to analyse the exchange set out at [ 20] , because, in all the circumstances I have described, there was no need to direct the jury that they could infer that the evidence of the complainant's aunt would not have assisted the Crown, even if such a direction would have been intelligible in the light of what they had been told by Senior Constable Mazengarb.[13] In those circumstances it matters not if counsel was deflected from his proposed course by what the judge had said.

75. The fourth contention derives from the observation of Gleeson, C.J. in R. v. Newland[14] that what was called for in that case was not a Jones v. Dunkel direction but an instruction to the jury to refrain from speculation as to why two witnesses were not called, or what evidence they might have given, and to decide the case on the evidence that was before them. No such direction was sought and, unlike the position in Newland's Case, there was no reason to fear that the jury would engage in such speculation. They had, of course, been directed in conventional terms to decide the case exclusively on the evidence.

78. I do not think there is anything in the contention that Senior Constable Mazengarb's statement was prejudicial to the applicant. Plainly defence counsel did not think so, because no objection was taken or any submission made to that effect.

81. I have dealt fairly briefly with Mr Boyce's contentions under ground 2. That should not obscure the care that went into them, but, standing back from the case, it would be intolerable for this Court now to hold that there was a miscarriage of justice when it suited both sides not to call a non-essential witness, when her absence was fully explained (once the breach of duty submission is rejected) and when neither side had a proof of her proposed evidence of events that had happened 12 to 13 years ago.

84. There is nothing in the other grounds. As to ground 3, the judge told the jury that the Crown case depended entirely on the complainant's account and gave them an emphatic Longman[15] warning. It is said that he should have told the jury in terms that there was no corroboration, or more properly, confirmatory evidence.[16] I do not accept that submission: his Honour warned the jury that it would be dangerous to convict "on the evidence of [the complainant] alone" and no exception was taken. As to ground 4, the only exception that was taken to the way in which his Honour summed up the parties' respective cases was by the prosecutor, who said that, although defence arguments had been mentioned, his Honour had not done justice to the Crown case. It is not surprising that defence counsel was content.

87. As I would dismiss the application for leave to appeal against conviction, I must turn to the application for leave to appeal against sentence. The grounds are that the sentence is manifestly excessive and that the learned judge did not properly take into account (a) the age and ill health of the applicant; (b) the trauma already caused to him by the laying of the charges and (c) the fact that he had no previous convictions.[17]

90. Those grounds reflect the able plea made below. It began by pointing out that the applicant was an old man, suffering from Paget's disease, heart disease, arthritis and a nervous condition. He had recently had a skin cancer removed from the side of his nose and that had affected his eyes, so that they were now extremely sensitive to light and heat. The applicant had reached his advanced age without any previous convictions and, after he was interviewed by the police, his children[18] had been taken into care. The only way they could and did return to their mother was the applicant's acquiring rental accommodation and living separately from his wife. Although the investigation had begun in 1995 he stood for sentence in December 1999.

93. 29 His Honour took all the matters referred to in the grounds of appeal into account. He plainly gave them careful consideration and, in my respectful opinion, appropriate weight. Whilst the applicant is not responsible for the period of time between the beginning of the police investigation and the trial, it is a hazard of molesting young children that the charges are likely to be laid many years after the event, all the more so where a threat is uttered at the time of their commission. It is unnecessary to dwell on the circumstances of aggravation, such as the applicant's relationship to the victim. I can detect no error in the sentence and I would dismiss this application too.

[1] It was submitted that the convictions were unsafe and unsatisfactory because there was a substantial possibility that the jury were misled by the errors assigned in the other grounds.

[2] Similar considerations apply to count 3.

[3] [1959] HCA 8; (1959) 101 C.L.R. 298.

[4] See, in particular, R. v. Apostilides [1984] HCA 38; (1984) 154 C.L.R. 563; Tran v. Magistrates' Court of Victoria [1998] 4 V.R. 294; R. v. Armstrong [1998] 4 V.R. 533 and, subject thereto, R. v. Lucas [1973] VicRp 68; [1973] V.R. 693.

[6] Ibid. at 577-578. Similar considerations apply in relation to an alleged failure by defence counsel: see R. v. Koeleman [2000] VSCA 141 at fn. 25.

[7] Compare R. v. Kneebone [1999] NSWCCA 279; (1999) 47 N.S.W.L.R. 450 at [60].

[8] Crimes Act 1958, Schedule 6, Rule 4.

[9] Whitehorn v. R. [1983] HCA 42; (1983) 152 C.L.R. 657 at 674 per Dawson, J.

[10] See, however, RPS v. R. [2000] HCA 3; (2000) 74 A.L.J.R. 449 at [111] and compare [28-29].

[11] Richardson v. R. [1974] HCA 19; (1974) 131 C.L.R. 116 at 119. There are many factors that a prosecutor may have to take into account in deciding whether to call a witness. I have mentioned only two.

[12] See, for example, RPS v. R at [28-29].

[13] Compare R. v. Buckland [1977] 2 N.S.W.L.R. 452 at 459B.

[14] (1997) 98 A.Crim.R. 455 at 462.

[15] Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

[16] R. v. Miletic [1997] 1 V.R. 593 at 605 lines 9-13.

[17] An argumentative ground was not pursued.

[18] Aged 11, 9, 5 and 3 at the time of the plea.