RB v R

Court of Criminal Appeal (NSW)|2016-04-14|Before: Ward JA, Price J, Adamson J

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/4408 Decision under appeal Court or tribunal: District Court Of New South Wales Jurisdiction: Criminal Date of Decision: 11 September 2014 Before: Payne DCJ File Number(s): 2012/4408

Judgment

WARD JA: I agree with Adamson J.
PRICE J: I agree with Adamson J.
ADAMSON J: RB appeals against his conviction following a trial by jury before Payne DCJ at the District Court at Griffith. The sole ground of appeal is that: "There was a miscarriage of justice as a result of the Crown's address effectively inviting the jury to reason, 'why would they lie?'"
The appellant was convicted of all five counts on the indictment: one count of commit act of indecency towards the complainant (his natural daughter) who was under 16 years of age and under his authority; three counts of sexual intercourse with the complainant who was then between the ages of 10 and 14 years in circumstances of aggravation (being under his authority); and one count of sexual intercourse with the complainant who was between the ages of 14 and 16 years in circumstances of aggravation (being under his authority).
The indictment was presented on Monday 17 March 2014. The Crown case closed on 19 March 2014. The jury retired to consider its verdict on 20 March 2014 and returned verdicts of guilty on all five counts the following day, Friday 21 March 2014.

The Crown case at trial

The Crown adduced evidence that when the appellant and his family were living in Leeton (in 2002 or 2003) he came into the complainant's bedroom (when she was 10 or 11) and showed her a book which contained illustrations of adults in sexual positions. The complainant's stepmother, KA, gave evidence that she kept the book in the bedroom which she shared with the appellant.
In 2003 the appellant's family moved to a farm at Merungle Hill where the conduct the subject of the five counts occurred. The conduct that constituted the first four counts occurred between August 2005 and September 2006 (when the complainant was 12 or 13). The conduct that constituted the fifth count occurred between September 2006 and September 2007 when the complainant was 14.

Count 1

The appellant, who was wearing KA's dressing gown which had white teddy bears on it, came to the complainant's bedroom and exposed himself. He told her, "This is our little secret" and instructed her not to tell anyone.
KA gave evidence that she had such a dressing gown and that the appellant would borrow it to wear from time to time.

Count 2

The appellant entered the complainant's bedroom late at night, touched her, undressed her and had penile vaginal intercourse with her.

Count 3

The conduct referred to above with respect to count 2 was repeated sometime after the complainant's first period finished.

Count 4

On another occasion the appellant entered the complainant's bedroom and made her suck his penis.

Count 5

Between September 2006 and September 2007, the complainant (who was then 14) went for a drive with the appellant. During the trip he pulled to the side of the road and had penile vaginal intercourse with the complainant against the back of the car.

Incident in 2005

When the complainant was in Year 7 (in 2005, when she was 12 or 13), she wrote a description of "what happened" on a piece of paper. She wrote that "a father was sexually abusing me" "how I didn't like it and that if I didn't get a boyfriend then my Dad would be my boyfriend and would always love me forever" . . . "because that's what he had said to me".
KA discovered the piece of paper and confronted the complainant, in the appellant's presence. The complainant responded: "it wasn't about me, it was about a friend". KA subsequently burnt the piece of paper. The complainant and KA gave evidence of KA's discovery of the paper and what then ensued.

Disclosure of the offences on 4 September 2011 at a family barbecue

On 4 September 2011 the appellant and KA hosted a family barbecue to celebrate Father's Day at their home. The complainant, who was almost 19 and no longer living at the home, attended. Her younger brother, MB, was also there, as was a family friend, Matthew O'Loughlin.
In the course of the barbecue, MB became upset and told KA that, some months before, he had seen the appellant having sex with a woman, Melissa. KA, who was distressed by the disclosure, asked the complainant whether she thought that MB was telling the truth. The complainant also became upset and answered, "Yes". KA asked her why, to which she responded (referring to the incident in 2005 referred to above), "You know that journal that I told you about years ago, well I lied to you when I told you all that stuff in there was about a friend. It was all about me."
Mr O'Loughlin corroborated this evidence in part by saying that he was aware of there being some problem with MB in the course of the barbecue.
According to KA, some time after the complainant had told her about the journal being about the appellant's conduct towards her, KA called the appellant into a room. Others, including Mr O'Loughlin, followed her into the room. According to Mr O'Loughlin, MB nodded towards the appellant and said, "Why can't he tell the truth for once?"
According to KA, the following exchange ensued between KA and the appellant: KA: [MB] just told me when you took [him] out to the farm to teach him how to use the harvester you went to the flat and had sex with Melissa. . . [The complainant] said that you'd done it to her, what have you got to say about this?" The appellant: Yes.
Mr O'Loughlin, who had left the room, returned. KA told him that the appellant had had an affair. At some point, KA asked the complainant if it was all right for her to tell Mr O'Loughlin. The complainant agreed. KA then told Mr O'Loughlin that the appellant had sexually assaulted the complainant. The complainant said, "It's true". Mr O'Loughlin left the room and returned a short time later. He remembered that KA then said to the appellant, "Did you have an affair with the slut" and the appellant said "Yes". KA then asked him if he sexually assaulted the complainant, to which he responded, "Yes, but I only done it once."
At this point, the other people left the room and KA grabbed the appellant. According to KA, the following exchange ensued. KA: You're nothing but a sick paedophile you rooted your own daughter. The appellant: No, I am not, I only done it to her a couple of times. KA: Only a couple of times, you're fucking sick.
KA then slapped the appellant and told him to "Get out". He left.
The complainant gave evidence that, two days after the barbecue, the appellant sent two text messages to her in which he said, "Sorry" and "Don't blame yourself I will always love you". She also gave evidence that in September or October 2011 the appellant sent her a message on Facebook in which he said, "I want you to look after [MB] and [KA] as best you can. I'm sorry that I have hurt you all. I hope that God will look after you and I might as well disappear." The complainant immediately called the police and reported the Facebook message.

The police interview on 5 January 2012

The Crown tendered the recorded interview with the appellant which took place on 5 January 2012. The conduct that comprised the five separate counts was put to the appellant, who denied each. Of present relevance, the appellant said in the interview: "A182 …So it's just a lot of allegations that were just, that's all they are, allegations. After 14 years our relationship went sour and to cut a long story short I had an affair, and after that, probably about 2 months, maybe not quite 2 months after I had the actual affair she found out, and then that's where all this just imploded. … A189 Yeah, yeah, yeah, yeah, I just, hopefully we can get to the bottom of it and get it sorted it out because like I said, it's just somebody, she just --- because how, how do you say it a woman scorned. … Q244 It's alleged that you told [the complainant] not to tell anyone. A No. Q245 It's alleged that you had sex with her until you ejaculated. A If all these alleged, allege alleges, well, if I've done they must have proof like DNA, my sperm samples, if I was such a bad person and all these, so many time surely they have, beside, yeah, it's like I said, it's just a woman scorned, and it's out, out, out, they're just, yeah, shockin'."
The appellant was later questioned about the barbeque on Father's Day as follows: "Q313 OK, that's all right. Was there an incident that happened that day? A …that's when all this, and well, not all this but when, this is when it come out that, yeah, that, when my partner found out that I'd had the affair, and yeah, just everything went haywire from there. Q314 What did anyone make any other allegations to you apart from having an affair, was anything else said? A No, no, no. No, it was just it come out that I'd, I'd had an affair. The better half had asked me if, if it was true. I said, Yeah, straight up, you know, after 14 years it was true, I, you know, a couple of months ago I went and seen this sheila, Melissa, and, and the next thing I know sort of, yeah, she got there, and said she's…up the street, beating the crap out of her. … Q324 …[MB] has disclosed to [KA] about that affair. [The complainant] has then disclosed about being sexually abuse by you… on Father's Day about what's happened. It's then alleged that [KA] has confronted you with the allegations…and the affair, and it's alleged that you've replied, Yes. A No, never, it never happened."

The cross-examination of the Crown witnesses by the appellant's counsel

The appellant's counsel at trial put to the complainant that none of the conduct that comprised the offences actually occurred. He did not put to the complainant that the appellant had not sent the text messages to her two days after the barbecue.
It was put to KA in cross-examination that the appellant was not present when she spoke to the complainant about the handwritten note in 2005. It was also put to her that the appellant had made no admissions at the family barbecue on 4 September 2011. It was also put to Mr O'Loughlin that the appellant had not made any admissions at the barbecue.

Exchange before addresses about appropriate directions

Prior to addresses, the following exchange between her Honour and counsel took place in the absence of the jury: "HER HONOUR: Do you want the Jovanovic [R v Jovanovic (1997) 42 NSWLR 520] direction? WILSON [counsel for the appellant]: I haven't put anything about that your Honour. CROWN PROSECUTOR: I'm going to be raising the woman scorned thing but I don't think it requires the direction. WILSON: Motive to lie hasn't been put to anyone. CROWN PROSECUTOR: No it hasn't. HER HONOUR: Crown no, defence no."

The Crown address

The Crown in its address said, of present relevance: "Is she [the complainant] fabricating? Do you think she's not a witness of truth, therefore she is lying? If you think that, have a look at the evidence she gives, she could simply say he had sexual assault with me four times in the bedroom, end of story, but she doesn't say that. She says it starts with him showing the book, which is the Joys of Sex or whatever it was, one of those books, those educational books, she looks at that. She says that exposes himself to her. She doesn't start the sexual assault, she says he exposed himself to me. I mean did she make that up? And then she has three - two counts of sexual intercourse and then fellatio. So what we will throw in a mix of different kinds of sexual assault? I mean it's bizarre isn't? And then we've got sex happening at a reserve or at a park in a car, at the back of car, the boot of a car. Is she making this up? ... [KA] remembers, you saw [KA] this morning. Did you think she was not a witness of truth? Did you think she came along as the woman scorned? I will come to that in a minute. … Matthew O'Loughlin he knew this man for years. Is he going to come along and tell lies? … You see, and really you draw - you join the dots. It must mean, mustn't it, it implode [sic, implied] that Matthew O'Loughlin, [the complainant] have come along to say yes this all happened - it didn't really happen, but they're falsely saying to you on oath and affirmation this happened because what, [KA] was upset. I mean it's not actually put, it's not put to anyone, but mustn't you really draw the inference from what he says that that's what he is saying. He doesn't say that, I mean he's talking about his own daughter, but he doesn't say my own daughter is jumping on the bandwagon, he doesn't say that, he says it's a woman scorned, you know, it's impossible, it could have happened, the walls are thin and all that sort of thing. But, necessarily by saying that he involves Matthew O'Loughlin, what Matthew O'Loughlin, his friend, didn't hear the admission and [the complainant] who comes along to talk about five charges of sexual abuse. Why because [KA] had - is upset because he had an affair with Melissa Sumner. Well it's bizarre, absolutely bizarre, but that's what he says. … The Crown says to you if you look at Matthew O'Loughlin, he has nothing to do with a woman scorned, he came along here, he knew this man for 14 years. You look at [the complainant], it's her own father. She comes and gives evidence. And [KA], who remembers back."

Further consideration of a Jovanovic direction after addresses and before the summing up

After the appellant's counsel addressed, and before the summing up, the following exchange occurred in the absence of the jury: "HER HONOUR: No, all right. Now what did you finally settle about, that you've only - which [sic, Jovanovic] direction? WILSON: We're happy with that direction to be given, your Honour. HER HONOUR: You want it now? WILSON: Yes. The way my friend addressed I'll be happy to have it, your Honour."

The summing up

In the course of the summing up, her Honour directed the jury as follows: "Now, ladies and gentlemen of the jury, as you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be found not guilty; that is, in respect of the counts you are considering. If the case turns on the evidence of the complainant you must be satisfied beyond reasonable doubt that the complainant has told the truth. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part, and the complainant is no exception to that. It would be wrong to conclude that the complainant is telling the truth because there is no apparent reason in your view for her to lie. People lie for all sorts of reasons; sometimes it is apparent, sometimes it is not, sometimes the reason is discovered, sometimes it is not. You cannot be satisfied that the complainant is telling the truth merely because there is no apparent reason for the complainant to have made up these allegations. There might be a reason for the complainant to be untruthful that nobody knows about."
Immediately after giving the Jovanovic direction, her Honour referred to the fact that the appellant had given a recorded interview. Her Honour said: "Now ladies and gentlemen of the jury, the accused undertook an interview in this case. He was not obliged to speak to the police and that was what was clearly told to him, but he did speak to the police and was interviewed. What he says in the interview is a version given by the accused. It is not sworn evidence. It has therefore not been tested by way of cross-examination. The accused is not, though, required to prove anything, and the Crown, as part of its burden of discharging its obligation to prove the accused's guilt, must satisfy you that it is a version of events that could not reasonably be true."
In summarising the Crown address, her Honour said: "The Crown reminded you of the interview between the accused and the police. He reminded you that the accused had attributed these allegations to [KA] being upset over the affair with Melissa Sumner. He said if you accept this, it must necessarily mean that both [the complainant] and Matthew O'Loughlin have made up and fabricated their evidence because [KA] was upset over the affair. And he also told you that you would think it unlikely that Matthew O'Loughlin, who had been a friend of the accused for many years, would come forward and lie on the basis that [KA] was angry with the accused."

The ground of appeal

The appellant contended that a miscarriage of justice was occasioned by the fact that the direction set out above addressed only the fact that the appellant did not have to establish motive to lie on behalf of the complainant. He submitted that the direction ought to have extended to the other witnesses relied on by the Crown, KA and Mr O'Loughlin, and ought to have specifically referred to the rhetorical questions asked by the Crown in final address.

Rule 4 of the Criminal Appeal Rules

It was common ground that the appellant's counsel at trial did not either seek a re-direction following the summing up, or that the jury be discharged. Accordingly, the appellant requires a grant of leave pursuant to r 4 of the Criminal Appeal Rules (NSW) which provides: Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
This Court has repeatedly emphasised the duty of trial counsel to take objections or seek directions at trial: see for example, R v Roberts [2001] NSWCCA 163. The assumption that will generally be made is that a decision not to raise such matters has been taken for sound forensic reasons. In the present case, I consider such an assumption to be soundly based.
First, the appellant was represented at trial by competent and experienced senior counsel. Secondly, there was nothing obvious to be gained, and much to be lost, by highlighting the motive of the principal Crown witnesses (the complainant, KA and Mr O'Loughlin) as an aspect of credibility.
The question of motive was raised by the appellant in his record of interview. However, his trial counsel did not cross-examine the Crown witnesses on that basis. It can reasonably be assumed that this was a deliberate forensic choice. The points of view (or motives) of the three witnesses were different: the complainant was the appellant's natural daughter; KA was the appellant's wife, to whom he had been recently unfaithful; and Mr O'Loughlin was a long-standing friend of some 14 years. Therefore, even if KA's evidence might be discounted on the basis (as the appellant would have it in the record of interview) that she was a "woman scorned", this did not account for either the complainant's evidence (although he also tried to put her in that category in the recorded interview) or the evidence of Mr O'Loughlin.
It was put on behalf of the appellant in this Court that the appellant's trial counsel had changed his mind about whether to require the Jovanovic direction (named after R v Jovanovic (1997) 42 NSWLR 520) and that this change reflected an indecision which meant that it was not necessarily a considered view. I do not accept this submission. A trial is a not a fixed set piece; it is a dynamic event. The appellant's trial counsel did not consider a Jovanovic direction to be required before the Crown address, but, following the Crown address, he said (after specifically referring to the Crown address) that he would be "happy to have one given". This does not indicate any indecision, but rather a weighing up of the forensic effect of requiring such a direction as against any disadvantage of its being given, in light of the Crown address which rebutted the appellant's suggestions as to the motives of the Crown witnesses to lie.
Although there is much to be said, for the reasons given above, against a grant of leave under rule 4, I consider that, as the sole ground concerns the onus of proof, leave to rely on it ought be granted.

Consideration of the ground

The reason expressed in the authorities for the concern about references to motive is that, in certain circumstances, such references are apt to reverse the onus of proof. Thus, in the case of Palmer v The Queen [1998] HCA 2; 193 CLR 1, an appeal against conviction was allowed, in part on the basis that the Crown had asked the appellant in cross-examination at his trial (for child sex offences) whether he could suggest any reason why the complainant would invent allegations against him.
The plurality (Brennan CJ, Gaudron and Gummow JJ) in Palmer v The Queen said, at [9] (footnotes omitted): "If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral."
However, this circumstance does not prevent the Crown from responding when an accused person advances motive as impugning the Crown's witnesses. The various "principles" have been summarised in cases such as Doe v R [2008] NSWCCA 203 (per Latham J at [58]-[60]). However, ultimately the question is to be resolved by a consideration of the facts and circumstances of the particular trial and a determination made whether the jury has been correctly instructed as to the onus of proof, including that the accused bears no onus to prove a motive to lie.
In the present case, the appellant sought to impugn KA's credibility by casting her as a "woman scorned" in his record of interview. He applied the same description to the complainant herself when he said that she must have "sperm samples" if he was "such a bad person" and added "it's, like I said, it's just a woman scorned". The Crown was also entitled to remind the jury that Mr O'Loughlin, who corroborated KA's evidence of the admissions made by him at the barbecue, was a friend of the appellant's and therefore (implicitly) could not be regarded as in league with the "woman scorned".
The so-called Jovanovic direction is set out in Sperling J's judgment in R v Jovanovic at 542 where his Honour said: Whilst it may not be necessary to give a particular direction in every caseinvolving complainant evidence, the following would, in my view, be a suitabledirection: "It would be natural to ask yourselves why the complainant, X, wouldmake up such serious allegations against the accused. I give you thefollowing directions about that question: 1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns on the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth. 2. As you have been told, it is your duty to decide whether you acceptthe evidence of a witness in whole or in part. X is no exception to that. 3. It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about." I provide the foregoing draft direction, not because I am satisfied that such adirection is necessarily required in every case such as the present case, but in order to answer the suggestion that the approach in this judgment leads in some way to an unmanageable situation in the context of a criminal trial.
The direction given by the trial judge which is set out in the narrative above is in terms of the draft direction in R v Jovanovic and concentrates on the complainant's evidence. The reason for the concentration on the complainant's evidence is clear: the complainant was the only person other than the appellant who was present when the acts constituting the five offences were said to have occurred. Therefore it was open to the jury to convict the appellant of all five counts as long as they were satisfied beyond reasonable doubt that the complainant was telling the truth.
It was not necessary that the jury be satisfied that either KA or Mr O'Loughlin was telling the truth. The importance of KA's evidence was that she relevantly: 1. corroborated the complainant's evidence about the presence of the book with illustrations of sexual positions in the house; the appellant's use of her dressing gown, as described; and the appellant's presence when the discussion about the complainant's "journal" took place; and 2. she gave evidence of admissions said to have been made by the appellant at the barbecue.
The importance of Mr O'Loughlin's evidence was that he corroborated KA's evidence of the admissions made by the appellant at the barbecue and other interactions at the barbecue (including MB being upset before the confrontations occurred).
Not only did her Honour give the Jovanovic direction as requested, but her Honour immediately thereafter also directed the jury's attention to the fact of the recorded interview. Her Honour emphasised in the passage from the summing up set out above that the appellant was not "required to prove anything".

Conclusion

Having considered the way in which the Crown led the evidence from the complainant, KA and Mr O'Loughlin; the challenges to their evidence in cross-examination; the Crown address; and the summing up (which included not only a Jovanovic direction but a reiteration, in the context of the recorded interview, of the onus of proof), I do not consider that the jury would have been left with any impression that the applicant had to prove that any of these witnesses had a motive to lie. In my view, the trial judge, by her Honour's careful directions set out above, amply and correctly directed the jury as to the onus of proof and the need for the jury to be satisfied beyond reasonable doubt of the truth of the complainant's evidence.
The sole ground of appeal has not been made out. No miscarriage of justice, much less error, has been established.

Proposed orders

I propose the following orders: 1. Grant leave to the appellant to rely on the sole ground of appeal under rule 4 of the Criminal Appeal Rules. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2016

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Judgment (22 paragraphs)

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Cases Cited (4)

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