ZUGECIC
101 Grounds 1 to 4 on behalf of Zugecic were argued together. They were expressed:
"1. The learned trial judge erred in admitted (sic) evidence of 'relationship' or 'context' evidence without requiring the Crown to specifically distinguish such evidence from evidence of charged acts of sexual assault.
2. The learned trial judge erred in not directing the jury that it could not use evidence of uncharged acts as tendency or propensity.
3. (i) The learned trial judge erred in failing to specifically identify to the jury which acts were charged and which were not charged;
(ii) Alternatively, the learned trial judge erred in allowing the jury to determine which acts were charged and which acts were not charged.
4. The trial miscarried as a result of the Crown:
(i) failing to lead sufficient or any evidence to distinguish between charged and uncharged acts of sexual intercourse;
(ii) failing to lead any evidence from the complainant in relation to the specific sexual acts depicted in the video."
102 The submissions referred to the content of the video. It was tendered after RB was asked to confirm that she had viewed it (when asked to do so by police) and that she identified herself and the three accused as portrayed in it. The video was received into evidence and played to the jury without objection by defence counsel. She was not led in chief through the various depictions of sexual activity but she was asked:
"Q. Did you want any of that activity that you saw on the video, did you want it to take place, want it to happen?
A. No I did not, no I didn't."
103 It is common ground that the video includes filming of sexual activity between RB and the appellants (and Mitrov) which was not the subject of any charge in the indictment. His Honour drew this to the attention of the jury and cautioned them that the use that could be made of such was to place the offences which were charged into "their true context and to provide continuity and a chronology of events, in the sequence in which the Crown alleges they took place."
104 In this instance it is significant to note that all these events, whether relating to charged or uncharged conduct, occurred on a single night within the same premises. The contentions specified in these grounds seek to dissect the activities in a way which was not sought to be done at trial. It is submitted that a direction should have been given that the evidence of uncharged acts could not be used as elements in a chain of proof of the offences charged: BRS v The Queen 1997 191 CLR 275.
105 The cases being presented by the accused were in each case that although sexual activity occurred, RB was a consenting party or, at least, each of them believed that she was consenting. There is a different contention about one occasion testified to by Villar but that dispute does not affect the argument concerning the ground. The existence of onus of proof is not to the point when perceiving that it would be a curious tactic for the defence in such circumstances to seek a direction of the type now canvassed which would highlight the uncharged activity. As stated, no direction was sought and the consequence of highlighting was thus avoided.
106 That the jury did not approach its task by considering the evidence in some global fashion is confirmed by the discrimination manifest between charges which they found proved and those which they did not.
107 The directions given by the trial judge were appropriate to the circumstances.
108 Ground 5 contended that:
"5. Verdicts of guilty in relation to counts 1, 4, 7, 8, 10 and 18 are unreasonable and cannot be supported on the whole of the evidence."
109 Zugecic did not give evidence and the argument in support of this ground is necessarily based upon criticism of the Crown evidence. It is submitted that although RB's evidence "could not be said to lack credibility by reason of the manner in which it was given" it contained discrepancies, inadequacies and a lack of probative force sufficient to lead to a conclusion that there was a significant possibility that Zugecic was not guilty.
110 In support of this, attention was directed to several matters which were capable of being relevant to assessment of RB's credit. She had a backpack containing, inter alia, clothing, because she said she had arranged to stay at the house of a former boyfriend Mr Lipman, overnight. Mr Lipman denied this arrangement. This was a peripheral matter and weight, if any, was peculiarly a matter for the jury.
111 The acquittals of Villar on counts 2 and 3 were claimed thereby to have damaged the complainant's credibility on all counts. I have mentioned elsewhere that the reasons for the jury's finding may well have been based upon doubt about proof of the state of mind of individual accused concerning consent at particular times. The acquittals do not convey inherent rejection of RB's testimony.
112 The next topic addressed was the circumstances in which RB's clothes came to be removed. She testified at different times that Villar took them off or that she took them off because he told her (forcefully) so to do. Reference was then made to her testimony that threats were accompanied by the mention of a gun. The submission continued by pointing out inconsistencies between RB's oral evidence and what were said to be "obvious" depictions on the video. Other testimony which was said to be inconsistent or embellishment was also identified.
113 The ultimate submission was that it should be concluded that RB was being deliberately untruthful in denying activities which were inconsistent with "her general version of violence, threats and being pinned down", that matters such as the mention of the gun were likely fabrications and that "on all of the evidence, the complainant's version does not ring true."
114 Such a conclusion is not conveyed. It is not known, for example, for what reason the jury found verdicts of not guilty on counts 2 and 3 but let it be assumed that they were satisfied that consensual sexual activity was involved (ignoring the issue of onus). The jury may nevertheless have been otherwise satisfied that many of the multiple subsequent sexual assaults by the appellants were undertaken by them with an attitude that they could do as they pleased towards her after initial consensual activity. It was well open to them to find that in such a circumstance the appellants well knew that she was no longer consenting to these multiple acts. It can be reiterated that the ultimate findings (including occasions when agreement could not be reached) offer a significant demonstration that the jury conscientiously adhered to his Honour's instruction to consider each count separately.
115 There was abundant evidence of the occurrence of sexual activity and the verdicts of guilty in respect of some of them were not in the overall context of the evidence unreasonable. The jury had the advantage of seeing and assessing the complainant and judging her responses to the matters of criticism then, and now again, advanced. His Honour had emphasized the necessity for this jury to accept her testimony on the appropriate essential ingredients of charges. These grounds are not sustained.
116 Ground 6 asserts:
"6. (i) The trial miscarried by reason of the Crown Prosecutor's comments on the failure of the appellant to give evidence.
(ii) The learned trial judge erred in failing to discharge the jury after the Crown Prosecutor made such comments."
117 The ground in substance contends that the Crown Prosecutor contravened s 20(2) of the Evidence Act 1995 in his closing address. The relevant part of that provision reads:
"(2) The judge or any party (other than the prosecutor) may comment on the failure of the defendant to give evidence."
118 The terms of prohibition applicable to the prosecutor are unqualified. The matter complained of is contained within this extract from the transcript of the address:
"Ladies and gentlemen, I now move to the defence case and the evidence of Mr Villar, and his record of interview. The first thing that I must tell you, and it's most important, Mr Villar did not have to give evidence in this trial. Mr Villar does not have to prove his innocence. He and each of the other accused are presumed innocent, unless and until they are proven to be guilty. They don't have to prove anything in this trial, and they don't have to give evidence and Mr Villar didn't have to give evidence. Indeed, his Honour will tell you that you cannot draw any adverse inference about an accused person if they don't give evidence.
But once an accused person steps into the witness box and gives evidence, you are entitled to assess that person, as you would any other witness. That is, to assess whether they're telling you the truth, whether they're reliable, in precisely the same way you treat any other witness." (Emphasis added)
119 Application was made to discharge the jury on the basis of this comment. His Honour held that the remarks, considered in their context, did amount to a comment of the failure of Zugecic and Mitrov to give evidence. His Honour's conclusion was correct and I reject the submission by the Crown that the references to "they" were to "theoretical others." The situation is comparable to the prohibition against comment that a person has refrained from giving evidence which was provided by the Accused Persons Evidence Act 1898 about which Isaacs J observed:
"If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up is made to the fact that the prisoner had the power or the right to give evidence on oath, and yet failed to give ……. evidence …. there would be a contravention……" (of the provision): Bataillard v The King 1907 4 CLR 1282.
120 Nonetheless, his Honour refused the application to discharge the jury. It should be noted that on the day previous to that upon which the Crown Prosecutor made the impugned remark the jury had submitted questions which included that they would "like to know why the other two accused did not testify." His Honour responded that it was not appropriate at that point to answer the question but that he would deal with the matter in the summing up. He did so and it is apt to recapitulate the terms in which he did:
"There is one other important direction I should give you at this point ladies and gentlemen and that relates to the way in which you deal with the election by the accused, Mr Kristijan Zugecic and Mr Tome Hadzi-Mitrov, to rely upon their ERISP's and not to give evidence. You must only take into account the directions that I am now giving you in relation to those matters. In particular, you should ignore any comments made in the course of this trial and in particular in his address by the Crown Prosecutor in relation to Mr Villar giving evidence on oath.
The accused Kristijan Zugecic and Tome Hadzi-Mitrov did not give any explanation of themselves in evidence in respect of the Crown case. Instead, they chose to rely upon the material that was contained in the ERISP. The accused was not bound to give evidence and there may have been many reasons why he did so and you must not speculate about those reasons. It is for the Crown to prove its case beyond reasonable doubt and you must not draw any inference from the accused not having given evidence. There may be reasons unknown to you why an accused person if otherwise in a position to contradict or explain evidence remains silent.
There are a number of important directions of law which I must give you in relation to that. An accused person may always by himself or by calling evidence make a response to the case presented by the Crown in the way of an explanation for the whole or parts of the Crown's case. But there is no obligation to do so. As I have already pointed out, the Crown bears the obligation and onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. He is presumed to be innocent until you have been satisfied by the Crown that he is guilty. Although the accused may give evidence in relation to the whole or any part of the Crown's case by way of explanation for it, or by way of additional matters which he may raise, as Mr Gerardo Villar did, he may equally elect to give no explanation or call any evidence in that regard. He is entitled to say nothing and make the Crown prove his guilt. I repeat. There may have been many reasons why the accused did not give evidence and you must not speculate about those reasons and must not drawn (sic) any adverse inference from the accused not having given evidence or in fact any inference at all.
I direct you as a matter of law that the accused's silence in court is not evidence against the accused and you must not draw any inference adverse to the accused because he has not given evidence in Court. His election not to give evidence must not be used by you to fill up gaps in the Crown case or to make up what you regard as deficiencies or defects in the Crown case. The election of an accused not to give evidence must not be regarded by you as any indication that he is guilty or that he believes himself to be guilty of the offence. As I remind you again ladies and gentlemen that you must not draw any inference adverse to the accused because he has exercised that right."
121 There had been no suggestion that the Crown Prosecutor deliberately infringed the statutory bar, indeed he argued unsuccessfully that he had not done so. The issue to be dealt with by his Honour was whether the jury should be discharged. He concluded that he should not so order and that the matter could be redressed by giving the direction which I have recited.
122 The situation is within the category of inadvertent events which occur during a trial. The joint judgment (Toohey, Gaudron, Gummow and Kirby JJ) in Crofts v The Queen 1996 186 CLR 427 @ 440-441 articulates the approach that should be taken:
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?"
123 The present matter turns upon the capacity of the appellant Zugecic to have given evidence. As Villar had done so it was obvious to the jury that he could. The comment by the Crown Prosecutor added nothing to the jury's store of knowledge which was potentially prejudicial to Zugecic. The emphatic direction by the trial judge removed any prospect of practical prejudice to Zugecic even if this were to be hypothesized. The comment by the Crown Prosecutor did not contribute to the risk of a substantial miscarriage of justice.
124 Although, as his Honour found, the point might be decided in favour of the appellant in the sense that there was a "breach of s 20", the appeal founded on this ground should be rejected by this Court in accordance with the proviso to s 6 of the Criminal Appeal Act.
125 An additional ground of appeal was advanced at the hearing on behalf of Zugecic complaining of the rejection by his Honour of cross examination of RB and a statement asserted to have been made by her to the effect, "Am I going to get paid for this?" The issue was raised by Villar in his appeal (Ground 3). I will refer to some further detail.
126 For the purpose of ruling his Honour had a statement by RB made about three months prior to trial (supplementary to an earlier statement) in which she revealed that on two occasions about five years prior to the night during which the offences were alleged to have been committed she worked in a brothel. She stated that she came forward with this information because she had recalled telling Villar this. The other material was that in his police interview on 28 May 2001 Zugecic said that he had on one occasion some two to four months beforehand seen RB in a brothel at Liverpool. He described her at one point as working there. His contact was limited to observation of her presence and he did not have sexual relations with her. He said that he had made other visits to that brothel but had not seen RB there on those occasions.
127 The argument involves consideration of the application of provisions of s 293 of the Criminal Procedure Act 1986 (at the time of trial s 105 and formerly s 409B of the Crimes Act 1900).
128 The legislation, I have already noted, expressly makes evidence of sexual reputation inadmissible. In McGarvey (supra) Hunt J observed:
"The Crimes Act 1900, s 409B (2), makes inadmissible any evidence relating to the complainant's sexual reputation. It is a blanket prohibition, and it is not subject to any exceptions. Before the section was introduced in 1981, evidence was usually permitted that the complainant had a reputation for promiscuity as the basis for an assertion by the accused that, because he knew of that reputation, he honestly believed that she was consenting to intercourse with him."
129 The first proposition argued on behalf of Zugecic is that the remark "Am I going to get paid for this?" is not evidence of sexual reputation but evidence upon the issue of whether RB did in fact consent to the sexual acts which took place.
130 The remark, if made, suggests that RB was a person who would provide sexual services for payment. Such a person is a reputed prostitute. The remark relates to sexual reputation and is therefore inadmissible.
131 The alternative argument is that the remark is comprehended with an exclusion specified in s 293(4)(a). The evidence of what RB told Villar (and the facts) about two events five years previously and the observation by Zugecic claimed in his interview do not assist. These matters are far less significant than, for example, convictions for prostitution but such have been held to be inadmissible where they occurred months before alleged offences: R v Berrigan, unreported NSWCCA 7 October 1994.
132 The Crown has pointed out that there is no material suggesting that the remark was made and it remains an allegation, and one which does not appear in the lengthy interviews by police with any of the then accused. However, the question raised is whether, if made, it is "of events that are alleged to form part of a connected set of circumstances" in which the offences were committed.
133 As the remark was said to have been made after the events it could not have operated on the minds of the appellants to induce a belief in them that RB was at the time consenting to activity. Thus, the assertion must be that it is relevant to actual consent.
134 The document (MFI 2) submitted on behalf of the then accused to the trial judge under the title "Detailed Written Statement of the Nature and Scope of the Evidence Sought to be Adduced" revealed no more than:
"The complainant said the words to the effect 'am I going to get paid for this?' after the alleged incident."
135 To whom it was alleged to have been said and in what circumstances was not detailed. It would appear that the matter was argued at trial "on principle". It was not suggested that Zugecic wished to advance a case that he believed that RB came to Mitrov's unit for prostitution. The scant information available fails to demonstrate tangible probative value in support of contention that RB consented to what was happening and the ground should be rejected.
136 The appeals against conviction should be dismissed. Each appellant seeks leave to appeal against sentence. As with the conviction appeals, it will be convenient to deal with the arguments separately advanced, but there are a number of common features which will not require repetition. It will be necessary to examine the structure of sentences but the ultimate result was in the case of Villar, imprisonment for seventeen years with a non parole period of ten years and, in the case of Zugecic, imprisonment for sixteen years with a non parole period of ten years.