Re G A M [2005] VSCA 234 (29 September 2005)

Court of Appeal (Vic)|2005-09-29|Before: CALLAWAY, CHERNOV and VINCENT, JJ.A.

Criminal law - Indecent act in presence of child under 16, indecent assault, incest and attempted incest - Fresh evidence - Complainant making statutory declaration recanting her evidence, but later recanting statutory declaration - Other evidence - Whether convictions should be quashed and, if so, whether judgment and verdict of acquittal should be entered or new trial directed.

Criminal law - Procedure - Petition for mercy - Case referred to Court of Appeal by Attorney-General - Nature of proceeding - Form in which orders should be expressed.

Introduction

1 The petitioner, who is now aged 46, was presented in the County Court at Shepparton on one count of committing an indecent act in the presence of a child under the age of 16 (count 1), two counts of indecent assault (counts 3 and 6) and four counts of incest (counts 2, 4, 5 and 7). He was convicted on each of counts 1 to 6. On count 7 the jury found him not guilty of incest but guilty of attempted incest. The learned trial judge heard a plea for leniency on his behalf and, on 1st March 2002, sentenced the petitioner to a total effective sentence of six years and nine months' imprisonment with a non-parole period of five years. He was sentenced as a serious sexual offender in relation to counts 3 to 6 and the alternative to count 7. A declaration was made regarding one day's pre-sentence detention.

2 The petitioner sought leave to appeal against both conviction and sentence. On 4th December 2003 the Court of Appeal[1] dismissed the application for leave to appeal against conviction but granted the application for leave to appeal against sentence, allowed the appeal, varied the directions for cumulation and fixed a new non-parole period.[2] The total effective sentence imposed by this Court was five years and six months' imprisonment with a non-parole period of three years and nine months. The petitioner was again sentenced as a serious sexual offender on counts 3 to 6 and the alternative to count 7. A declaration was made regarding 645 days' pre-sentence detention.

3 On 27th January 2004 the complainant made a statutory declaration to the effect that all the allegations of sexual abuse that she had made against the petitioner were false. I shall refer in more detail later to the terms of that declaration and the circumstances in which it was made. Three months later the petitioner sought an extension of time within which to make a second application for leave to appeal against conviction.[3] He also filed a copy of the application for leave to appeal on which he would rely if the extension were granted.

4 On 2nd July 2004 the Court of Appeal[4] refused the petitioner's application for an extension of time.[5] We held that although the previous proceeding had been an application for leave and not an appeal, it had been determined on the merits and the Court was functus officio. Winneke, P. concluded his judgment by pointing out that the applicant was not without remedy, because he could lodge a petition for mercy pursuant to s.584 of the Crimes Act 1958. He would be wise in the events that had now occurred, the learned President continued, to exercise the rights given to him by that section.[6]

5 His Honour had earlier said[7]:

"Although the material which is now before the Court raises substantial disquiet about the complainant's credibility, and hence the safety of the verdicts recorded at the trial, I am satisfied - for reasons which I will hereafter give - that this Court has no power to re-open the conviction application (and thus to entertain the present application); and that, if the safety of the convictions is to be re-visited by this Court, it will have to be pursuant to a reference by the Attorney-General in accordance with the prerogative of mercy provisions found in s.584 of the Crimes Act."

The petition

6 The applicant lodged a petition for mercy on 21st July 2004. The paragraphs of the petition corresponding with grounds of appeal read:

"8. The convictions herein rested almost entirely on the evidence of the complainant - see Court of Appeal judgment 4 December 2003 in the previous application for leave to appeal against conviction R v GAM [2003] VSCA 185.

9. There is fresh evidence of the complainant recanting the allegations of sexual assault. The statutory declaration sworn by the complainant on 27 January 2004, after the hearing of the previous application for leave, is evidence that the complainant has sworn that those allegations were false allegations.

10. That evidence is apparently credible, and evidence that if believed might have led the jury to return a different verdict. It is evidence to indicate that a miscarriage of justice has occurred.

11. The fresh evidence is evidence that the complainant gave perjured evidence to the trial court. Alternatively, it at least raises serious questions as to the reliability of the complainant's evidence so that the convictions may be considered by the Court of Appeal to be unsafe and unsatisfactory and thereby warrant a fresh trial.

12. Your petitioner also refers to the affidavit of Jennifer Joan Combes sworn 15th June 2004 and the exhibits referred to therein. It is apparent that upon the police investigating the complainant's recantation, she has now withdrawn her recantation. The explanation given by the complainant [named] in her record of interview (exhibit JJCA to the said affidavit of Jennifer Joan Combes) and her statement (exhibit JJCB) both made on 4th February 2004 does not explain why she swore the statutory declaration dated 27th January 2004, other than that she says she '... signed it to keep my mother happy.'

13. The other exhibits disclosed via the said affidavit of Jennifer Joan Combes are consistent with the contents of the complainant's statutory declaration, in which she retracted the allegations she made at trial against the applicant. In particular the statement of the complainant's sister [named] made 4th February 2004 (exhibit JJCD) at paragraphs 3, 6 and 7[8] is supportive of the complainant's mother's record of interview (exhibit JJCB). The complainant's mother has denied that she in any way persuaded the complainant to make the original retraction.

14. Accordingly, the evidentiary material in combination casts real doubt on the reliability of the evidence given by the complainant at trial. It is submitted that the further material is capable of satisfying the Court of Appeal either

(a) that there has been a miscarriage of justice, or

(b) that the convictions herein were unsafe and unsatisfactory."

7 On 1st March 2005 the Attorney-General referred the case to the Court of Appeal pursuant to s.584(a) of the Crimes Act, which reads:

"584. Nothing in this Part shall affect the prerogative of mercy, but the Attorney-General on the consideration of any petition for the exercise of Her Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either -

(a) refer the whole case to the Court of Appeal and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; ..."

Section 566 provides that "indictment" includes presentment. The authorities establish, and it was common ground, that our task is the same as on an appeal against conviction on the ground of fresh evidence.[9]

Evidence at the trial

8 The evidence at the petitioner's trial in February 2002 was summarized by Winneke, P. in R. v. GAM.[10] The following summary is largely taken from his Honour's judgment.

9 The complainant is the petitioner's stepdaughter. She was aged 13 at the time of the alleged offences. The family consisted of the petitioner, his wife, the complainant and two children of the marriage between the petitioner and his wife. The complainant gave evidence that she was sexually molested by the petitioner on four separate occasions. First, on a day that she could identify only as being between 13th July and Show Day in September 1999, the petitioner called her into the shed at the rear of the house in which the family lived. She went to the shed as she was beckoned to do. She was wearing a pair of black jeans and a white long-sleeved T-shirt. The complainant said that when she went into the shed the petitioner was there. He said to her, "Have a look at this", at which he unzipped his fly and "thrust his penis" at her (count 1). According to the complainant, the petitioner then asked her to step on to the top of the "catcher" of a lawn mower. He helped her up into a position where her back was against the wall facing him. He then undid her pants and pulled them down and commenced to lick her vagina. He asked "Did you like that?", to which the complainant said that she did not. She pulled up her pants and underwear and went back inside the house (count 2).

10 On a day alleged to have been in October or November 1999, the complainant said that she was in the laundry at the back of the house when the petitioner came in and began to feel her breasts. She said that she was wearing her pyjamas and underpants and thought that the time was "about mid-day". He continued to play with her breasts for about two minutes (count 3). He then put his hands inside her pyjamas and "played with my clitoris", using his index finger and rubbing it backwards and forwards. At that time her back was to him. She said that it lasted for "a couple of minutes" and finished when he "took his hand out of my pants and then [went] into another room of the house" (count 4).

11 The next assault was alleged to have occurred on a day shortly before Christmas 1999, at approximately 11.30 p.m., when the complainant's mother and her sisters had gone to bed. The complainant said that she and the petitioner were decorating the Christmas tree. She walked "one way around the Christmas tree, and he walked the other, and as we met in the middle he would try and touch the outside of my pyjama pants". She then went and sat on the lounge room floor to watch the television. He came and sat behind her and began to play with the outside of her pyjama pants in her crotch area. She then said that "he decided to put his hand in my underwear and play with my clitoris again" and that he did that with his index finger for "just a couple of minutes". It ended after she asked him to stop. He said "No" but asked her "wait a couple of minutes", which she did. According to the complainant she then went to bed (count 5).

12 The final counts on the presentment arose from events that happened in the early hours of the morning of 5th January 2000. The complainant said that she was asleep when she was aware of someone entering her bed. She turned her head and saw the petitioner lying behind her wearing his dressing gown. He began to play with her crotch area over her pyjamas. She told him to stop but he continued to touch her over her pyjamas for "a couple of seconds". He then ended up "going through the pyjamas and through my underwear". Again she said that he put his right hand "through my pyjama pants and my underwear and started playing with my clitoris again". That went on for "just a couple of minutes", when he took her pyjama pants and her underwear and pulled them down just over her knees to the ankles (count 6). The complainant said that, after the petitioner had taken down her pyjama pants and underwear, he "got his penis and tried to stick it up my bottom" (count 7).

13 Shortly after the events of 5th January 2000, the complainant was taken by her parents to Broadmeadows where she was to stay with the petitioner's mother, whom the complainant regarded as her grandmother. Whilst she was staying with her on 10 January, the complainant said words to the effect:

"I don't want you to tell anybody else about this Gran, but Dad has been sticking his penis up my bottom."

The petitioner's mother, who gave evidence of such a complaint to her at the trial, immediately made arrangements to have the complainant examined by a local doctor, who referred her to a gynaecologist, who gave evidence at the trial to the effect that she had made an examination of the complainant on 14th January 2000. Among other things, she found two "superficial abrasions" on what she described as the "anal verge", i.e. the very entrance to the anus. Those findings, according to the gynaecologist, were supportive of a history of attempted penetration with a penis, but she agreed that they were also consistent with severe constipation or "self-induced trauma".

14 When interviewed by police on 14th January 2000, the petitioner denied absolutely that any such sexual interference with his step-daughter had occurred. He gave evidence at the trial in the course of which he repeated his denials of sexually interfering with the complainant at any time. Among other things, the petitioner said during the course of his evidence that the complainant regularly suffered from constipation in 1999 and 2000. He was cross-examined at length and a number of discrepancies between his evidence-in-chief and answers given to the police during the course of the interview were exposed.

Victim impact statement

15 The evidence on the plea included a victim impact statement made by the complainant on 28th February 2002, incorporating two-and-a-half pages in the complainant's handwriting under the heading "Emotional trauma suffered as a result of the crime". After saying that she loved her mother and sisters very much, that they were very important people in her life and that she would hate herself if she lost them, the complainant continued:

"As for [the petitioner] I couldn't care less about him as he has made me suffer for the rest of my life. I used to think of him as my hero when I was younger as he supported me and my mother when we were going through a rough time. Now he is a piece of dirt to me as he just doesn't care how much emotional and physical abuse he has put me through and I shall never forgive him."

The contrast with the letter found in the complainant's bedroom in February 2004, referred to in [25] below, is readily apparent.

The fresh evidence

16 On 2nd February 2004 Freny Bagli, a solicitor in the employ of Victoria Legal Aid, wrote to the Office of Public Prosecutions advising that Victoria Legal Aid acted for the petitioner and that they had received a statutory declaration made by the complainant recanting her evidence. The original of the statutory declaration, made on 27th January 2004, was enclosed. Omitting formal parts, it read:

"I, [the complainant, whose address and occupation are given] do solemnly and sincerely declare that this statement that I am about to make is true and correct.

That all allegations of sexual abuse made against [the petitioner] were false allegations made by me, due to being told by the D.H.S. Child Protection case worker at the time that if I changed my story I would go to a children's detention centre.

At the time of my statement in January 2000 I was confused, bitter, angry and frightened of the authorities that my grandmother [named] took upon herself to contact the authorities because of the animosity towards her son [the petitioner].[11]

My grandmother also tried to convince me that [the petitioner] was like his father.

I make this statement and I make it in the belief that a person making false statements in the circumstances is liable to the penalty of perjury.

I understand that I may be interviewed by police."

17 The complainant was interviewed by police and made a statement on 4th February 2004. She was told that the interview was in relation to the offence of perjury. She was asked whether the statutory declaration was "a true document" and answered "No." She was then asked whether what was contained in the statutory declaration was false and answered, "Yes." In answer to another question, she said that the evidence she gave at the trial was correct.

18 The complainant also made a statement on that day.[12] Omitting background material[13], it reads:

"On the 26th of January 2004 at about 10 or 11 o'clock in the morning I was at home in Hopetoun Rd, when my mother said to me,

She said, 'Can I ask you a question'

I said, 'Yeah'

She said, 'If you could change things, would you.'

When she this said [sic] I knew she was referring to what happened to my step father.

I said, 'How am I supposed to change things?'

She said, 'Well I have been speaking to Lyn Rafferty, and she said all we have to do is fill out the state [sic] dec and send it off.'

I didn't say anything to this but my mother continued on,

She said, 'That's all you got to do, you send it off to the solicitor, she sends it to the OPP and then it goes before a judge and stamps it [sic] and all the charges get dropped.'

I said, 'What do I have to write in my state [sic] dec.'

She said, 'You can ring Lyn, and ask her what you have got to write.'

Lyn is the DHS worker who was on the case at the time that I went to court in Shepparton against my step father.

I said, 'I am not ringing her, you can ring her.'

She said, 'OK I will ring her then.'

My mother then rang Lyn in my presence and was talking to her and writing down in little blue note book diary [sic] that she uses. I heard mum say to Lyn at one stage,

She said, '[the complainant] has decided to do the stat dec.'

There was conversation backwards and forward between my mother and Lyn and then she hung up.

I [sic] said, 'Lyn is going to get back to me, she has to find out what the last bit of the stat dec has to be. She is going to ring Mark at Benalla.'

I said, 'Who is Mark'

She said, 'He is a cop in Benalla.'

I then read what she had written down in the blue book. It was along the lines that I had given false evidence at [the petitioner's] trial and I had made it all up. What she had written down was absolutely false and not true. About one hour later Lyn rang back and told mum what to write on the end of the stat dec. Mum then asked me for a piece of paper and I handed her a yellow note pad. She then copied onto the yellow pad what I was to write on the stat dec.

I then read what she had written. What she had written was not true but I didn't want to argue with her. I kept on asking her,

I said, 'But won't I get into trouble.'

She said, 'No Lyn said you won't get into trouble because you were under age when you made the statement.'

I said, 'When do we go down to the police station.'

She said, 'Whenever your [sic] ready.'

I said, 'I can't be bothered going anywhere today we can do it tomorrow after I finish work.'

The next day mum walked me to work at Safeway, and she went to the post office to get a stat dec. That night after I got home from work she gave me the blank stat dec. I filled it out copying off what I had written out on the yellow pad. Mum then said to me,

She said, 'Now we have got to go and send it.'

Mum then drove me to the police station, and we both went into the station and I signed it in front of a uniform [sic] policeman. We then left the police station and drove to the post office where mum went and posted it.

What I said in that stat dec was not true but I only wrote it out and signed it to keep my mother happy, so that she could try and get her husband back home."

The complainant signed the statement, together with an acknowledgment that it was true and correct and made in the belief and understanding that a person making a false statement was liable to the penalties of perjury.

19 I have set out the relevant part of the statement in full because, to my mind, it carries conviction. It is easy to believe and, unlike the statutory declaration, it is more or less in the complainant's own words. If the other members of the Court are of the same opinion, it follows that, notwithstanding other evidence to which I shall refer later, if we allowed the appeal constituted by the reference, we could not possibly direct a judgment and verdict of acquittal. Moreover, in considering whether the appeal should be allowed and a new trial directed, the complainant's statement is the best indication of the evidence that she would give at the trial concerning the statutory declaration.

20 The complainant's mother was also interviewed by police on 4th February 2004. She was told that the interview was in relation to conspiracy to commit perjury. She agreed that the initiative for the making of the statutory declaration came from her and said that its purpose was "for the charges to be dropped and my husband to be able to come home". She said that Ms Rafferty (referred to in the complainant's statement) dictated not just the concluding words but also the proposed contents of the statutory declaration and that she, the complainant's mother, wrote them out in a blue book. (The words written out were slightly different from those that ultimately appeared in the statutory declaration.) Ms Rafferty has also made a statement. She acknowledges that she asked the policeman "Mark" for the words to go at the end of the statutory declaration and passed them on to the complainant's mother. She denies that she discussed the contents of the statement with Mark or told the complainant's mother what those contents should be.

21 In the course of her interview with the police, the complainant's mother was then shown a yellow page on which a draft of the statutory declaration was written. (The draft was practically the same as the declaration that the complainant made.) The complainant's mother said that her daughter asked her to write it out for her and that, the next day, after the complainant came home from work, she asked her mother whether she had it, her mother said "Yes" and gave it to her and the complainant filled it out.

22 Although the complainant's mother agreed that she had "scripted" a draft of the declaration, she denied that the complainant did not agree with the contents. She said that it was what the complainant wanted to do and that the complainant said to her that, if she had known that all she had to do was change her statement, she would have done it years ago. In substance, the complainant's mother denied that she had conspired to commit perjury. Her position was that she had persuaded her daughter to tell the truth.

23 One of the complainant's sisters also made a statement on 4th February 2004. She was then aged 15. Her account was largely confirmatory of the circumstances in which the statutory declaration came to be made, but paragraphs 2, 6 and 7 should be set out in full:

"2. Last week sometime I can't recall the day but I know that it was around eleven o'clock. I was in my room at home. I had just woken up. I heard my older sister [the complainant] talking in the lounge. I heard [the complainant] talking to Mum. I heard her say that DHS had told her that if she had changed her statement earlier she would have got into trouble. I didn't hear Mum say anything. I then got out of bed. I asked [the complainant] what she was doing. She said that she was going to fill in a stat dec so Dad could come home. I asked Mum if [the complainant] was going to get Dad home. Mum said that [the complainant] was going to fill out a stat dec so he could come home. Mum told [the complainant] that if she filled out the stat dec she couldn't get into trouble because she was too young.

...

6. A couple of months ago [the complainant] said that she had listened to what Nan said and that she did want Dad to come home so we could all be together again. I heard [the complainant] say this again just before she filled out the stat dec.

7. On the day of the phone call to Lyn, [the complainant] told Mum and me that Nan, that is Dad's mother [named], had told her in 2000 when all this happened to make a statement against Dad. Nan wanted her to make this statement because Dad was just like his father and had done the same thing as his father had done because Dad's father had raped one of Dad's sisters. Nan just told her to make the statement because she was angry with Dad because he hadn't been down to see her even though he hadn't raped [the complainant]. [The complainant] said that she didn't really want to make that statement but she did it because Nan had told her to and now all she wanted was for Dad to come home again." (Emphasis added.)

24 Both the complainant's mother and the complainant's sister have sworn affidavits in the appeal constituted by the reference. The complainant's mother deposes that what she said to the police when she was interviewed was true and correct and that she has not at any time told her daughter "to lie to anybody in relation to these proceedings". The complainant's sister deposes that what she said in her statement was true and correct. Both deponents were made available for cross-examination, but they were not cross-examined.

25 There are two other pieces of evidence to which reference should be made. First, when the police searched the house on 4th February 2004, they found a letter in the complainant's bedroom. It was on lined paper in the complainant's handwriting. It was not sent and it is not referred to either in the complainant's record of interview or in her statement. It is a very affectionate letter, beginning, "I just want to say that I'm sorry for what I've put you through these past few years. Well what I've put you all through. I never wanted this to happen, all I wanted was to have you back home so we could all be a family again - but that never happened ...". Later it says, "From this day on we shall not dwell on the past but get on with our future as a family". As I have said, it is an affectionate letter. Among other things, the complainant says that she loves the petitioner, that the three girls look up to the petitioner and their mother and could not have asked for better parents.

26 Secondly, in addition to the denials to which I have already referred, Ms Rafferty's statement contains two other assertions. One is that, as the Department of Human Services case worker, she was not satisfied with the investigations that were carried out and believed that the petitioner was innocent of the offences of which he was convicted. That opinion is clearly inadmissible.[14] The other assertion is that, while she was discussing the proposed statutory declaration with the complainant's mother on the telephone, she could hear the complainant in the background laughing and saying, "It was all in my head." In her statement Ms Rafferty says that she remarked to the complainant's mother that she could hear the complainant laughing.

The approach to be adopted

27 The evidence on which the petitioner relies is fresh evidence, in the sense that it could not with reasonable diligence have been led at the trial. It all relates to subsequent events.[15] As I am considering only a new trial, the basic test is sufficiently stated in the judgment of Mason, C.J. in Mickelberg v. R.[16] His Honour said[17]:

"It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v. The Queen. Deane J. and I considered that the test was best expressed in those terms. Gibbs C.J. expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J. said that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements." (Footnotes omitted.)[18]

It was common ground that, if there is a difference, we should prefer the "significant possibility" formulation rather than the test expressed by Brennan, J. in terms of likelihood.[19] The basic test must, however, be applied with considerable caution where the fresh evidence consists mainly of a recantation, a fortiori if the recantation is itself withdrawn.[20]

28 Mr Richter argued that there must be a significant possibility of acquittal in the light of the fresh evidence if only because the trial was one of oath against oath and, on her own admission, the complainant has perjured herself at least once. Accordingly, he contended, the petitioner's convictions should be quashed even if we did not accept the truth of the statutory declaration. The difficulty with that approach was expressed by Widgery, J. in R. v. Flower[21]. His Lordship said[22]:

"If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness's state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness's account in this court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony."

Those observations, especially the reference to "tangible pressures" and "the reason, if any, given by the witness for having changed his or her testimony", are relevant to the present case.[23]

29 The Director invited us to adopt the alternative conditions for setting aside a conviction on the ground of a recantation enunciated by Fitzgerald, P. in R. v. Bryer.[24] His Honour said_[25]_:

"A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies and Cody [1937] HCA 27; (1937) 57 C.L.R. 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."

I agree that those formulations are helpful. The first in particular reminds us that, although a doubt is all that is required, it must be a doubt sufficient to order a re-trial after considering the cogency of the new evidence.

30 Fitzgerald, P.'s two conditions might be thought to imply that the effect of fresh evidence on a witness's credibility is to be assessed only under (ii). I assume in the petitioner's favour, without deciding, that that is not so. In other words, there may be cases where a new trial should be directed even if the witness's new version of events is not accepted, because the circumstances in which it came to be put forward significantly undermine the evidence the witness gave at the trial, without its having to be shown that his or her evidence is so untrustworthy that it "ought not to be allowed to enter into the reasons for any verdict of guilty".[26] It follows that I shall bear Mr Richter's submissions about credit and perjury in mind in considering the applicability of each of Fitzgerald, P.'s conditions.

Assessment of the evidence

31 The fresh evidence falls into five categories: first, the statutory declaration and the evidence concerning the circumstances in which it was made, including the complainant's statement, also made subject to the penalties for perjury, that the statutory declaration was false; secondly, that part of the complainant's sister's statement, verified by affidavit, that the complainant had listened to her grandmother, who had told her to make a statement "even though [the petitioner] hadn't raped [the complainant]"; thirdly, the indications in the statutory declaration and in paragraph 2 of the complainant's sister's statement that the complainant had been told that she would get into trouble if she changed her statement; fourthly, the unsent letter, or draft letter, to the petitioner located in the complainant's bedroom; and, fifthly, Ms Rafferty's statement that, when she was on the telephone, she heard the complainant laughing and saying, "It was all in my head." All that evidence falls to be assessed having regard to the evidence given at the trial, which included the oral testimony of the complainant and the petitioner.

32 In Davies and Cody v. R.[27] one of the witnesses, Stevens, swore a declaration stating that his evidence was false in every material particular. He then swore another declaration stating that his evidence was all true and that his earlier declaration was false. Notwithstanding the caution to be shown in those circumstances, to which their Honours referred, the High Court concluded that it was now known that Stevens's testimony was "completely untrustworthy, and ought not to be allowed to enter into the reasons for any verdict of guilty".[28] That is the form of words adopted by Fitzgerald, P. to describe the second alternative condition for setting aside a conviction based on a recantation in the passage set out at [29] above. Those words could not be applied to the complainant's evidence. She has explained the circumstances in which the statutory declaration was made. Her position is that she has at all times told the truth, subject to one lapse which she immediately regretted and prompt[29] corrected.29

33 The more difficult question is whether, to adapt the language of Fitzgerald, P.'s first alternative condition, the fresh evidence is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, bearing in mind the assumption I have made in favour of the petitioner in [30] above. I have[30]lready said30 that, if there is a doubt, it is not so strong as to warrant a judgment and verdict of acquittal. The issue is whether the fresh evidence is such as to warrant[31] new trial.31

34 In my opinion, the fresh evidence does not have the quality necessary to warrant a re-trial. I shall deal with it in roughly ascending order of importance.

35 First, there is the letter, or draft letter, found in the complainant's bedroom. It was not sent and is not the subject of any statement, affidavit or other evidence. It was written some four years after the alleged offences. It is consistent with the offences having been committed but the complainant nevertheless loving her stepfather and wanting him home. The complainant says that she is sorry for what she has put the petitioner, or perhaps the whole family, through, but she nowhere says that her allegations were false.

36 Secondly, there are the indications that the complainant was told by an officer of the Department of Human Services that she would get into trouble if she changed her statement. Let it be assumed, in favour of the petitioner, that that occurred before the trial. It explains only why she did not change her story then. It does not mean that her account was false. She may have regretted making a statement to the police when she appreciated its seriousness and the likely consequences. The trial concluded, and the plea was heard, on 28th February 2002. On that day the complainant made a victim impact statement, which she was not obliged to do. Even if she mistakenly believed that she had to make a victim impact statement, it did not have to be lengthy and in the terms exemplified by the passage set out at [15] above.

37 Thirdly, there is Ms Rafferty's statement that, when she was discussing the proposed statutory declaration with the complainant's mother on the telephone, she could hear the complainant in the background laughing and saying, "It was all in my head" and that she remarked to the complainant's mother that she could hear the complainant laughing. Unlike the complainant's mother and sister, Ms Rafferty has not sworn an affidavit or been made available for cross-examination. Even if her statement is true, we do not know the tone of voice in which the complainant said that it was all in her head or the context in which that remark is to be understood. When the complainant's mother was interviewed by police, she said that the

complainant did not say anything during the telephone conversation.

38 Fourthly, there are paragraphs 6 and 7 of the complainant's sister's statement. Except for the words "even though he hadn't raped [the complainant]", everything in those paragraphs is consistent with the offences having been committed. The gist of them is that the complainant was sorry that she listened to her grandmother and made a statement and now all she wanted was for the petitioner to come home again. We do not know whether the words "even though he hadn't raped [the complainant]" are intended to convey the complainant's words to her sister or her sister's interpretation, either of those words or of the events that had happened. The Director did not object to the admissibility of the material on the ground that it was hearsay, but the fact that it is hearsay and the matters to which I have just referred show that it is entitled to little, if any, weight.

39 Fifthly, and Mr Richter conceded that this was the most important evidence, there is the statutory declaration; but it cannot be assessed separately from the evidence at the trial or divorced from the explanation that the complainant has given, in her interview with the police and in her statement, for making the statutory declaration. Except for Ms Rafferty's denial that she suggested the contents, all the material supports the view that the statutory declaration was made at the complainant's mother's suggestion and that its purpose was to enable the petitioner to come home. I do not consider that a statutory declaration, made for that purpose and promptly and convincingly recanted, has sufficient cogency, in the circumstances of this case, to warrant a new trial. In particular, on the whole of the evidence, I am not persuaded that there has been a miscarriage of justice within the meaning of s.568(1) of the Crimes Act.

40 I would dismiss the appeal constituted by the reference.[32] The Registrar

should inform the Attorney-General of the result of the reference.

41 My initial view of the matter was that there was a real chance that the jury, acting reasonably, might have returned a different verdict had the fresh evidence been before them at the trial. Reflecting on the totality of the material, and having had the benefit of reading the reasons of Callaway, J.A., I consider that there is no significant possibility that such a jury would have acquitted the petitioner.[33]

42 Like his Honour I think that, given the circumstances to which I refer below, the complainant's statement to police of 4 February 2004, and what she otherwise said to them on that day, amount to a believable explanation of her making, and then rejecting, her statutory declaration of 27 January 2004 by which she recanted the allegations she had made against the petitioner at the trial. It is apparent, I think, that the complainant suffered emotional distress upon being made to live apart from her family and that she longed to be with them - in particular, her mother and sisters - and to be accepted by them. She was conscious that she was viewed by her mother as being responsible for splitting up the family and it is plain that she regretted the situation. It seems that, in large part, the complainant blamed "Nan" for her predicament because she was the person in whom she had confided initially about the petitioner's offending conduct and it was she who had encouraged her to make the complaint. Furthermore, the material shows that the complainant wanted the petitioner to return home so that they could once again be a united family. This is confirmed by her unsent letter of affection addressed to the petitioner, which she wrote before 4 February, probably on or shortly after 27 January, as well as her sister's statement that "all [the complainant] wanted was for Dad to come home again". Thus, the complainant must have been vulnerable to her mother's effective suggestion that the restoration of the family unit was in her hands, more particularly, that she could achieve this by recanting the evidence she had given at the trial. It is

clear that the complainant was concerned that, if she were to do that, she might place herself "in trouble" with the relevant authorities.

43 It is also clear that the complainant's mother wanted the petitioner to return home as quickly as possible and that, as she admitted, she instituted the making of the statutory declaration and drafted its terms, albeit with the assistance of others. True it is that she denied that the complainant did not agree with the terms of the statutory declaration, or that she had conspired to commit perjury. But she must have known of the complainant's vulnerability, to which I have referred, and of her concern, as confirmed by her sister's statement, that she would "get into trouble" if she changed her evidence. She was, however, able to allay the complainant's apprehensions in that regard by telling her that, because of her young years, she would not get into any trouble if she recanted the evidence she had given at the trial. Her mother thereby removed an important obstacle to the complainant's making the statutory declaration. In the circumstances, it would not be difficult to conclude that, even if she did not counsel her daughter to make the statutory declaration, she exerted, perhaps unwittingly, at least some moral pressure on her to recant her evidence so that the petitioner could return to the family's home.

44 It is clear enough that the matter must be dealt with on the basis that, in any new trial, where the fresh evidence would be before the jury, she would have to face them as a perjurer. But given her believable explanation of her rejection of the statutory declaration, and for the reasons given by Callaway, J.A., I think that there is no significant possibility that such a jury, acting reasonably, would consider the complainant to be so unreliable as to reject her evidence on the substantive issues and acquit the petitioner. Hence, I think, the appeal should be dismissed as his Honour proposes.

45 I agree in the disposition of this matter, as proposed by Callaway, J.A. and I do so for the reasons advanced by him in his judgment.

[1] Winneke, P., Phillips and Eames, JJ.A.

[2] R. v. GAM [2003] VSCA 185.

[3] By mistake an application for an extension of time within which to seek leave to appeal against sentence was filed. The Court treated it as an application for leave to appeal against conviction.

[4] Winneke, P., Callaway and Eames, JJ.A.

[5] R. v. GAM [No. 2] [2004] VSCA 117; (2004) 9 V.R. 640.

[6] At 660 [40]-[41].

[7] At 644 [11].

[8] Paragraphs 2, 6 and 7 are the most relevant, but the whole statement is to be taken into account.

[9] See, for example, Ratten v. R. [1974] HCA 35; (1974) 131 C.L.R. 510; Re Smith (1989) 42 A.Crim.R. 372; Mallard v. R. [2003] WASCA 296; (2003) 28 W.A.R. 1; and Mickelberg v. R. (2004) 29 W.A.R. 13.

[10] At [3]-[7].

[11] This paragraph accords with the second draft referred to in [21] below, but there probably should be a full stop after "authorities" the first time that word appears and the next words should probably be, "That my grandmother ... took it upon herself ...".

[12] The statement is wrongly dated 4th February 2002.

[13] The material I have omitted includes a sentence reading, "When I was about 13 years of age I was sexually abused by [the petitioner]."

[14] It is one thing to say, as I do in [38] below, that the Director did not object to the admissibility of material on the ground that it was hearsay. It is another thing altogether to interpret the Director's silence as assent to our taking Ms Rafferty's opinion about the investigations or the petitioner's innocence into account.

[15] Mickelberg v. R. (2004) 29 W.A.R. 13 at 129 [411].

[16] [1989] HCA 35; (1989) 167 C.L.R. 259 at 273.

[17] At 273.

[18] See also 275 per Brennan, J. and 301-302 per Toohey and Gaudron, JJ. Other authorities include R. v. Nguyen and Tran [1998] 4 V.R. 394 at 400-401; R. v. AHK [2001] VSCA 220 at [9]; Mallard v. R. at 6 [11]-[17]; and Mickelberg v. R. (2004) 29 W.A.R. 13 especially at 130 [416].

[19] At 301 Toohey and Gaudron, JJ. doubted that there was a practical difference. See also R. v. Nguyen and Tran at 401.

[20] Cf. R. v. AHK at [9].

[21] [1966] 1 Q.B. 146.

[22] At 150-151.

[23] See also R. v. K [1984] 1 N.Z.L.R. 264 at 270.

[24] (1994) 75 A.Crim.R. 456.

[25] At 458.

[26] Compare R. v. Poulter (1978) 19 S.A.S.R. 370 at 377 and R. v. Geesing (1985) 38 S.A.S.R. 226 at 231, 244 and 247-248.

[27] [1937] HCA 27; (1937) 57 C.L.R. 170.

[28] At 183-184.

[29] It will be recalled that the statutory declaration was made on 27th January, and the complainant was interviewed on 4th February 2004. In the course of the interview she was asked whether she regretted making the statutory declaration, to which she replied, "I regretted it ever since she asked me."

[30] At [19] above.

[31] I am not to be taken as agreeing with everything the learned President said in R. v. Bryer. In particular, a clear distinction must be maintained between cases in which a Court of Criminal Appeal substitutes a judgment and verdict of acquittal and cases in which the evidence warrants only a new trial. See and compare Ratten v. R. [1974] HCA 35; (1974) 131 C.L.R. 510 at 518-519 and R. v. Challoner (unreported, Court of Appeal, 28th July 1998) in the judgment of Kenny, J.A. at 1-2.

[32] That is the language used by the Full Court in Re Ratten [1974] VicRp 26; [1974] V.R. 201 at 224 and similar to that in the last paragraph of the judgment in Re Matthews and Ford [1973] VicRp 18; [1973] V.R. 199 at 214. It appears to be preferable to the language used in Re Smith (1989) 42 A.Crim.R. 372 at 392. It is not the petition, but the case, which is referred by the Attorney-General and heard and determined by the Court pursuant to s.584(a) of the Crimes Act. See also and compare Mallard v. R. [2003] WASCA 296; (2003) 28 W.A.R. 1 at 80 and Mickelberg v. R. (2004) 29 W.A.R. 13 at 172.

[33] See Mickelberg v. R. [1989] HCA 35; (1989) 167 C.L.R. 259 at 273 per Mason, C.J.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)