R v TSR [2002] VSCA 87

[2002] VSCA 87

Court of Appeal (Vic)|2002-08-23|Before: PHILLIPS, C.J., PHILLIPS and CHERNOV, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2002-08-23

Before

PHILLIPS, C.J., PHILLIPS and CHERNOV, JJ.A.

Source

Original judgment source is linked above.

Judgment (187 paragraphs)

[1]

The applicant denied that he was at the grandmother's home on 21 September 1998 and that he had engaged in the alleged offending conduct. He also denied telling the complainant that he could get drugs for her from work. He said in his evidence-in-chief that, in 1998, he noticed changes in the complainant's behaviour. She mixed with friends who were older than she was and who were socially active. He heard the complainant telling her grandmother and his wife about going to parties where there was alcohol and had heard from his wife that the complainant had been experimenting with, or had been exposed to, marijuana. He knew her parents were not happy with what she was doing that year.

[2]

The applicant said that, on 21 September 1998, he was at home and at approximately 6.40 to 6.45 p.m., his wife and daughter left to visit a friend in hospital. His wife said that she would be gone for half to three quarters of an hour. The applicant telephoned the complainant's grandmother (who conducted the Brownlow medal tipping competition) at approximately 7 p.m. in order to change his vote. He knew that she would be at bingo and expected to leave a message on her answering machine. He said he did not know that the complainant was there. According to him, the complainant answered the telephone and, after the exchange of greetings, she spoke of not being able to do the things she wanted to do during the holidays and then asked him if he could get her some marijuana from work. He told her that she was heading for trouble and that she had said to forget it. He said that he did not tell the complainant that he wanted to change his Brownlow medal vote. He claimed that he was so affronted by her request for the marijuana, that he forgot to change his vote. According to the applicant, after he washed the dishes at his home, he lay down on the couch and, when his wife and daughter returned shortly after 7.30 p.m., they found him asleep, or half-asleep. The applicant said that his wife reminded him about his Brownlow medal tip so he called the grandmother's home from the kitchen telephone while his wife was making a cup of coffee. He told the complainant who answered the telephone of the change he wanted to make.

[31]

It is not surprising that the jury were charged by reference to counts which were numbered 1 to 4. Mr. Holdenson relied on this fact to support his case that the applicant had been charged on the first presentment. Given the intention to avoid any reference to count 3, as endorsed on the first presentment, it would have been confusing to say the least if, during the trial, reference to the four counts was made by reference to counts 1, 2, 4 and 5. This would have defeated the purpose of the second presentment and the removal of the risk that the jury would learn of the rape charge. It follows, therefore, that the verdicts would be taken by reference to counts 1 to 4 and that the records on the presentment and the quadruplicate would show them as referring accordingly. On one view, it may have been more correct if the quadruplicate and possibly the first presentment had shown convictions against counts 1, 2, 4 and 5. On the other hand, bearing in mind that it was always intended that the two presentments be read together, it can be easily deduced from those documents that the counts referred to in the quadruplicate are referable to those on the first presentment. Consequently, the mere fact that verdicts were taken in relation to counts numbered 1 to 4 and were so reproduced on the back-sheet of the second presentment and in the quadruplicate does not support the argument that the applicant was tried on the second presentment. The same applies to Mr. Holdenson's claim that, because the prosecutor's submissions at the hearing of the plea in mitigation were referable to counts 1 to 4 and because the judge sentenced the applicant by reference to such numbered counts, he must have been tried on the second presentment. The fact is that all knew that, because of the introduction of the second presentment, the four counts in the first presentment were treated as being sequentially numbered. Those matters do not go to establish that the applicant was tried on the second presentment.

[92]

The situation here, however, was relevantly different from that found in both Kane and Chin. First, the material in the Crown's hands, namely, the Ball statement which, in any event, was not part of the hand-up brief, could not have been tendered in chief. Moreover, given that there was a risk that Anderson would not have "sworn up" to the conversation in question, the Crown was not in a position to lead oral evidence from Anderson of that conversation as part of its case in chief. Next, whereas in Kane there was real doubt about the admissibility of the evidence in question, in the present case, provided the evidence of the Anderson conversation was led in admissible form, it would plainly have been admissible against the applicant as an admission. Furthermore, unlike the situations in Kane and Chin, in this case the topic to which cross-examination was directed, namely, the applicant's belief as to the promiscuity of the complainant was, as the learned Chief Justice observed during argument before us, opened up by the applicant's counsel's conduct of the case. The applicant's counsel cross-examined the complainant on various aspects of her life such as her change of school, the fact that she had older friends, that she engaged in experimentation with alcohol and marijuana and that she spoke about those matters to the applicant's wife and to her grandmother. Further, early in his evidence-in-chief the applicant gave evidence of his observations as to the change in the complainant's social behaviour, the complainant's friends (in particular, that they were older than the complainant and more socially active than she was) and of her discussions in his presence with her grandmother and his wife about her experimentation with alcohol and marijuana and her social life, etc. In other words, the applicant gave evidence-in-chief of his belief about the complainant's lifestyle. In cross-examination, he agreed that he knew that the complainant was prepared to say things about her social life in front of his wife which she would not say in front of her parents and that he was aware that the complainant was interested in the opposite sex. It was only then that his belief as to the applicant's promiscuity was raised. Thereafter, the impugned cross-examination followed.

[94]

In the course of his submission to us, Mr. Holdenson did not claim that counsel at the trial was unaware of the basis on which the cross-examination was being conducted. Rather, he said that counsel's course of allowing the cross-examination to proceed and seeking, only at the end of it, to have the jury discharged, was taken because it was sanctioned in Kane. In that case, as I have said, the Court of Criminal Appeal held that the jury should have been discharged notwithstanding counsel's failure to object to the Crown eliciting evidence through cross-examination of the accused on a matter which it had not previously disclosed to the defence. This aspect of the decision in Kane, however, does not appear yet to have been approved in Australia. Rather, it seems that here it is only in extraordinary circumstances that a jury is discharged on the basis of the Crown's conduct of the case to which objection could have been, but was not, taken by the accused's counsel. In Kane, the Court of Criminal Appeal considered that the applicant's counsel could not have preserved the situation for his client even if he had objected to the cross-examination. That is not the case here. If the applicant is correct in his contention that the cross-examination was impermissible, then an objection to that course near the outset of it would have resulted in the impugned evidence not being reached. Counsel's forensic decision not to object to the evidence until after it had been led was binding on the applicant and he was therefore not entitled to have the jury discharged. The decision may have proved to be an error of judgment, but it did not amount to an egregious error or to a flagrant incompetence causing a miscarriage of justice warranting appellate intervention - R. v. Miletic[70]. The applicant was bound by his counsel's decision on that issue and his conviction cannot now be challenged properly on the basis that the evidence was inadmissible - Crampton v. The Queen[71]; Re Rattan[72]; R. v. Gay[73] and R. v. Arundell[74].

[122]

(a) In cross-examination, as I have already mentioned, the complainant first said that she rang Rebecca that evening after the alleged offending. The telephone records, however, show that the first telephone call made from the grandmother's house to Rebecca was made at 6.26 p.m. which meant, counsel argued, that the offending must have taken place before the time claimed by the Crown. But the complainant agreed when she was shown the telephone records that one of the telephone calls that she made to Rebecca was made before the applicant's offending conduct. And, as I have said, she maintained that she spoke with Rebecca after the alleged offending and told her what the applicant had done to her.

(b) The complainant first asserted that she had called her friend Lisa after she was assaulted by the applicant. She was non-specific as to time. The telephone records, however, show that that telephone call took place at 6.39 p.m. on the evening in question, which meant, said Mr. Chettle, that the offence must have occurred earlier than was now alleged by the Crown. Once the records were shown to the complainant, however, she agreed that she made the telephone call in question before the applicant had assaulted her, not after.

(c) The complainant denied in her evidence that, on the evening in question, she had spoken to her mother by telephone. The telephone records, however, showed that a call was made from the grandmother's house to the complainant's home during the relevant period. When these records were produced to the complainant during her cross-examination, she said that she had telephoned her mother on that evening but changed her mind about speaking to her and hung up.

(d) The complainant did not complain to her mother or to her grandmother that evening of the applicant's alleged behaviour towards her. Her only explanation was that the applicant had told her not to relate what had occurred because that would wreck the family.

(e) James, the complainant's former boyfriend, gave evidence that the complainant had told him in August 1998 that she had been raped by the applicant when she was young and that the applicant had told her thereafter not to tell anyone because it would cause fights in the family. In her cross-examination the complainant agreed that she had not been raped by her uncle when she was young, but she denied making the statement to James as alleged by him.

(f) Evidence that contradicted the complainant's version of events included that of her grandmother that the bed in question did not appear to have been disturbed when she went to bed on the evening in question; that the complainant's demeanour was normal when she returned home from bingo; and that no complaint was made to her, notwithstanding that ordinarily the complainant confided in her. Counsel also pointed to the father's evidence that the complainant left home on 3 October with the dog before the applicant arrived there; and the evidence of the applicant's wife, that she did not see the complainant at her home on 3 October which she would have done, had she been there. Counsel relied also on the applicant's own evidence and the records of his movements on 3 October 1998 which, it was said, contradicted the complainant's claim that she received marijuana from him on that day.

(g) The complainant gave contradictory evidence as to the applicant's attitude to her when she and her brother went to his home to collect show bags.

(h) The complainant gave significantly different versions as to the circumstances in which the offences were said to have been committed.