R v Pearce [1999] VSCA 221

R v Pearce [1999] VSCA 221 - VSCA 1999 case summary — Zoe

[20]

The complainant was admitted as an in-patient at the Bendigo Psychiatric Centre in December 1994 and in 1995. She was re-admitted as a voluntary patient on 9 April 1995 and then admitted having had sexual relations with at least ten males since her last discharge from the Centre nine weeks previously. She was discharged from the Centre on 13 April 1995 and went back to live at her parents' house at Newstead. Later in 1995 the applicant was re-assigned to be her case manager and he remained so until January 1996, when she was re-admitted to the Bendigo Centre. In April 1996 she described some of her problems following her allegation of an incident of gang rape in 1995. She displayed ideas of sexual fantasy. She was diagnosed as becoming sexually disinhibited in the middle of the night. She told of threats from unknown people to kill her. She spoke of recently being threatened by a male with a knife and reported having heard the voice of an Asian man in her head telling her to kill herself. The records tell of her spending time with other patients at the Centre and being disgusted with a sexual remark made to her by one of them as a result of which she asked him to stay away from her. She is recorded as saying that if he did not stay away she would bash his head in. One Lorri Russell became the complainant's case manager from 1 November 1996 until her final discharge from the Bendigo Psychiatric Centre in 1997. According to the evidence of the complainant she and Russell saw one another both professionally and socially and "the two of us became pretty good friends". In early 1997 the complainant was pregnant and asked Russell to become the godmother of her forthcoming child. At about that time the complainant displayed increased levels of disturbance after her parents had been reunited following a separation. She said that she was angry because they had been inappropriately intimate in front of her. On 12 March 1997 at the Centre she gave birth to a son, after which she engaged in severely delusional behaviour. This included her writing by hand several pages headed "Diary" dated 22, 25 and 27 April and 18 and 19 May 1997 expressing obviously delusional thoughts about herself and her baby, and expressing also nonsensical antipathy towards at least one psychiatric nurse - not the applicant. These pages were included as part of the records, but the complainant denied in cross-examination that she had kept a diary in 1997.

[35]

"Generally speaking that evidence would be excluded because it is got nothing to do in one sense with any of these four charges. You have got to concentrate on the four occasions which are the subject of the charges here. However, there is an exception to that rule which enables evidence of that kind to be given. There are two reasons for allowing such evidence to be given. The first reason is that if you accept that there was sexual activity between the two of them, that you could then conclude that there had been a sexual relationship between, and if you were satisfied that there was such a relationship you may assist that in determining whether you accept the allegations about the four specific occasions in the sense that if you are satisfied that (A) and (B) quite regularly had sexual intercourse with each other, and there was a question as to whether it happened on a particular day, they can use the fact that they generally did it, making it perhaps more likely that it happened that day, but it may not - it depends upon all the circumstances. So that is one reason why he goes there. The second reason for the exception is that it enables the evidence relating to the alleged offence, of offences - the four of them here - to be placed in a more complete and realistic context. You may, if you accept that evidence appreciate the significance of what may otherwise seem merely to be isolated acts occurring without any apparent reason. So it is for those reasons that that evidence is permitted to be given. You must understand that although that evidence maybe placed before you, it is admissible for the two limited purposes which I have just explained and only for those purposes. In the long run you must be satisfied beyond reasonable doubt of the guilt of the accused of the actual charges before you may convict him. You cannot substitute evidence of some other incident, or some other relationship for the evidence or of a particular charged incident. Above all you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties, and thus the probability or improbability of the charged acts having occurred. But it would be wrong, it would be prejudicial and it would be contrary to law for you to reason that because the accused man had engaged in some improper conduct or in some other crime or crimes, he was the kind of person who was likely to have committed the crimes charges, and to use such a conclusion as evidence that he had committed them or any of them." (My emphasis.)

[52]

The trial was plainly an unsatisfactory one in several respects. Trenchant criticism on behalf of the applicant was levelled in this court at the presentation and conduct of the defence case, and I have already mentioned some aspects of it that are difficult to understand. Putting aside the question of uncharged acts, there were some puzzling omissions from defence counsel's cross-examination of the complainant and from his examination in chief of the applicant. For example, although it was always the applicant's contention that he had never had sexual intercourse with the complainant, whether consensual or non-consensual, defence counsel did not put that to the complainant : he merely put it to her that the applicant did not rape her. This omission was seized on by the prosecutor in his final address as ground for a contention to the jury that the applicant's denial of any sexual intercourse with the complainant was a recent invention. Again, there was complaint in this court that the cross-examination of the complainant failed to explore a number of inconsistencies in her evidence in chief and of her conduct, including that towards the applicant, after the alleged commission by him of sexual improprieties against her. There was further complaint that defence counsel did not object to impermissible questioning by the prosecutor by way, for example, of leading questions of the complainant, and to other unfair conduct towards the applicant. I shall not elaborate on the extensive criticisms that were made of defence counsel for, as will appear, I do not find it necessary in deciding the case to adjudicate on the criticisms. I am glad that it is so, for it would be an invidious task, and might conduce to unfairness in the absence of some opportunity given to the object of the criticism to respond to it. I shall merely say that the applicant's representative at the trial appears to have been an employee of Legal Aid Victoria, and that he may well (to judge by the transcript) have been hampered by a want of forensic experience and limited instructions or preparation for the trial.

[53]

It is, I think, unproductive in the circumstances to spend time assigning or apportioning blame for what I take to be some shortcomings in the trial of a serious kind. They are shortcomings that lead me to a conclusion that, having regard to the whole of the material upon which the trial was conducted, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The reason for my deliberate use of the expression "the whole of the material upon which the trial was conducted", rather than "the whole of the evidence" (cf M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493) will, I hope, already have been made apparent. It was in my view an egregious and cardinal defect of the trial that the psychiatric records referable to the complainant were not tendered in evidence. These records included diagnostic notes and observations by the several psychiatrists and nursing staff who had had the care of the complainant, and included contemporaneous and revealing historical accounts handwritten by the applicant. These records were, as we were told without objection or contradiction, tendered at the committal proceedings and formed part of the depositions. The material was called for at the trial by the defence and was produced by the Crown. It was freely referred to and cited by both counsel and by the judge, and was treated as though it was, in fact an exhibit. There were called as Crown witnesses at the trial two only of the staff associated with the facilities at Bendigo and Castlemaine which served the complainant and to which the applicant was attached. These were Mr R.P.Wilson, the Programme Manager, who gave evidence of the applicant's responsibilities as a psychiatric nurse and deposed in particular to what was required of him in keeping records of his daily round of consultations and contacts with the patients for whom he had responsibility. Mr Wilson was asked in cross-examination, in some little detail, to identify, examine and explain what he acknowledged to be "the medical records" of the complainant. The other Crown witness who was concerned with the records was a psychiatrist, Dr Chakrabarti, who deposed to the complainant's mental condition of bipolar defective disorder when he became concerned with her management in December 1996. The witness was asked in cross-examination to refer to the records, with which he said he was familiar, and to explain by reference to them the complainant's progress as a psychiatric patient from the time of her admission involuntarily in 1994, and onwards. The learned trial judge himself expressed the view that, by virtue of the Evidence Act, the records were evidence of their content. Counsel on either side fairly plainly adopted a similar view, as is demonstrated by their use of the records at the trial.

[55]

The records were eloquent of the complainant's psychotic condition during the period over which the applicant's alleged offences and the uncharged acts were said to have occurred, and for some years before and beyond. The records showed three particular circumstances that might especially have borne on the likely validity of the complainant's allegations against the applicant. The first, as I have noted, was that the last visit by the applicant to the complainant's house at Newstead, as shown by the records, was on 3 May 1994. The significance of that was, no doubt, that the records were inconsistent with any visit by the applicant to the house at the time of either of the alleged offences in May 1994, the first of which the complainant, it seems, ultimately conceded to have been perpetrated after Mother's Day, the second Sunday in May. The applicant might, of course, simply have neglected to note any visit to the Newstead house in the course of which he misbehaved towards the complainant; but it was not plainly put to him, or suggested to anyone who might usefully have commented on the matter, that that was likely. The second was that before, during and for long after the period spanning the offences alleged against the applicant, he was obviously offering to her, and she was obviously taking from him without demur, the psychiatric services that it was his responsibility to provide. The records must cast doubt on the complainant's asseveration, in the course of her cross-examination, that she did not keep all her appointments with the applicant because she "did not want to see him": the records tend to show that, on the contrary, after May 1994 she kept many of her appointments with him, and continued routinely to make more. Associated with that is the complainant's explanation to the effect that she was disposed to submit to continued abuse by the applicant for fear that, unless she did, he would send her back to the Psychiatric Centre, which she disliked. The third circumstance that is thrown into relief by the records is the absence of any kind of complaint about the applicant's conduct by the complainant to third persons for a period exceeding three years after the first charged incident of rape. Her principal excuse for not doing so seems, again, to be that she feared that if she reported the applicant he would arrange for her to be returned to the Centre; and perhaps she entertained an expectation that she would not be believed. It is obvious enough that the complainant had ample opportunity to make telling complaint of his conduct. These excuses are patently feeble. The records show that she had a wide variety of professional people - quite apart from any non-professionals - to whom to complain about the applicant from November 1994, when Kay Symes became her case manager, until April, 1995. Then, in April 1995, the applicant again became the complainant's case manager. So far as appears, he maintained that role until January 1996, without apparent demur from the complainant. When, in October 1996, Lorri Russell replaced him and became so much of a friend as to be recruited as a potential godmother, the complainant still made no complaint to her about the applicant. She consulted her general practitioner, Dr Luscombe eight times in 1994 to 1996, and was regularly seeing consulting psychiatrists, none of whom could reasonably be expected to have ignored a complaint from her about the applicant. Plainly, the applicant had at no time authority to order or arrange for her return to the Centre; and it is in any event fanciful to suppose that he could have done so after November 1994 when he ceased to be her case manager. There appears to have been no explanation of the circumstances, if there were any, in which the complainant was moved ultimately to make her complaints about him.

[57]

I refer again to the records. They reveal on their face two features of importance in the context of the trial, which would, I think, immediately present themselves to any interested and reasonably intelligent reader. The first is an apparently normal professional, caring relationship between the complainant and the applicant and others who were at relevant times responsible for her psychiatric care and management. The relationship existed before, during and after the time of the applicant's alleged criminal conduct. The second feature is a pattern of the complainant's disturbed and erratic conduct, manifesting obsessional sexual ideation and accounts of sexual assault. The records were, it seems, not relied on in proof of the Crown case. Defence counsel however, who had called for their production, did apparently rely on them and was entitled to have them treated as evidence of their content. Unaccountably, he did not tender them and the judge did not require their tender, as undoubtedly he should have done. The significance of the failure to tender the records was demonstrated by the jury's question to which I have already referred in [22] above. By their question the jury, or at least one of their number, showed an understandable interest in an important matter as to the actual content of the records, a reference to which could and should have given a conclusive answer of obvious significance. Instead of a conclusive answer the jury, most unfortunately, received a response that was at best incomplete and at least potentially misleading. The jury were of course entitled to know, and it was vital in the interests of the applicant that they should have known, what the records showed his home visits to have been in April, May and June. In fact, the records showed that there had been no home visit at all after 3 May 1994, whereas the Crown case was that there had actually been many, and at least two on which charged offences had allegedly been committed. Of course the records could not prove that the applicant had not been to the complainant's home at Newstead after 3 May, but the jury, having disclosed an interest in the matter, should at least have been told what the records said about it. They should, indeed, have been allowed to peruse the records. The jury should, moreover, have been told that they were entitled to treat the records as evidence of their content, but they were not so told.

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Judgment (61 paragraphs)

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Cases Cited (1)