Roth (a Pseudonym) v The Queen [2014] VSCA 242

PROCEDURE - Whether judge erred in failing to direct the jury on the use of the evidence of the applicant's flight - consciousness of guilt - application refused.

1 On 5 March 2012 the applicant, Steven Roth, was found guilty by a County Court jury of sexual offences against two sisters, XE and XS, who were both less than 16 years old at the time of the offending. He was convicted of 15 charges of sexual penetration of XE (charges 1 to 4, 10 to 15, 17, 18, and 20 to 22), three charges of sexual penetration of XS (charges 27 to 29), one charge of attempted sexual penetration of XS (charge 26), four charges of an indecent act (charges 5, 19 and 23 relating to XE and charge 24 relating to XS) two charges of causing XE and XS to be involved in making child pornography (charges 6 and 25 respectively) and one charge of producing child pornography relating to XE (charge 7). The jury acquitted him of two charges of sexual penetration of XE alleged to have occurred on St Valentine's day 2005 (charges 8 and 9), another charge of sexual penetration of XE on which the applicant was found guilty of an alternative charge of an indecent act (charge 19) and one charge of an indecent act with XE (charge 16).

2 The applicant was sentenced on 8 March 2012. On 26 May 2014, approximately 26 months outside the time limit of 28 days from the date of sentence,[2] the applicant sought an extension of time within which to seek leave to appeal against his conviction. The application for an extension of time was refused by the Judicial Registrar on 19 June 2014 and the applicant has now elected to have that application determined by the Court of Appeal.[3]

3 The test for determining whether leave to appeal should be granted was laid down by Gowans J in delivering the judgment of the Full Court in R v Darby[4] and re-stated in R v O'Keefe[5] as follows:

(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.

4 In Jopar v The Queen,[6] Priest JA said that, in exercising the discretion to grant an extension of time, the Court should have regard to both the reasons for delay and the merits of the appeal, but that these two considerations are not necessarily evenly balanced:

Where the merits of the proposed appeal are very poor, even a satisfactory explanation for the delay might not justify an extension. On the other hand, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the Court may incline towards granting an extension. The discretion reposed in the Court must be exercised according to the individual facts of each case.[7]

5 In our opinion, the reasons for the lengthy delay in this case are not persuasive and the applicant's chance of success on appeal is unlikely. For these reasons, we would refuse the application for an extension of time.

6 The applicant's application for an extension of time is supported by an affidavit from his solicitor, Ms Susanna Locke which sets out the applicant's account of the chronology of the events which followed the imposition of sentence on 8 March 2012. The applicant paid for his own legal representation at the trial. He expressed the wish to appeal against both his conviction and sentence shortly after he was sentenced, and at that time his trial counsel told him there was a time limit for seeking leave to appeal. Although the applicant initially contacted the Victorian Aboriginal Legal Service and later communicated with Victoria Legal Aid ('VLA') about his intention to appeal, he delayed in providing the information about his financial situation which was required by VLA in order to assess his eligibility for legal aid.

7 VLA first received an application for legal assistance on 2 April 2012. The applicant was asked to complete a fresh application for legal assistance on 10 October 2012 and he provided an application form which lacked information on his financial circumstances on 29 October 2012. Even if the applicant was not to blame for VLA's apparent slowness in processing the first application,[8] he was advised on 5 December 2012, and again on 25 March 2013 of the need to provide financial details to permit assessment of his eligibility for legal aid. On 29 April 2013 the applicant was again told that VLA would require information on the value of his property in order to determine whether the means test was satisfied. The applicant said that he wanted to be represented by a particular firm and was advised by VLA about the danger of delaying.

8 On 17 July 2013 the applicant was again refused legal aid because of a lack of information about his financial circumstances. The information that was sought by VLA related to the financial position of both the applicant and his mother. Following a fresh application for legal assistance, on 4 November 2013 further financial documents were requested from the applicant and it was ultimately decided that he met the means requirements. On 8 January 2014 the applicant instructed his solicitor to lodge applications for leave to appeal against conviction and for an extension of time. The barrister who was instructed to prepare the written case was ultimately unable to act due to a conflict of interest. New counsel was instructed on 15 April 2014 and the relevant applications were filed on 26 May 2014.

9 The applicant's reasons for delay were entirely unsatisfactory. Although there may have been some delays in the process for which he was not responsible, the major delay was caused by his dilatoriness. Despite frequent warnings about the need to comply with time limits he consistently failed to provide financial information necessary for VLA to assess his eligibility for legal aid.

10 The applicant's grounds of appeal were as follows:

1. A substantial miscarriage of justice occurred by reason of the admission of the evidence of the applicant's flight from the scene of events the subject of charge 20;
2. A substantial miscarriage of justice occurred by reason of the absence of any directions to deal with the risk of the use of the applicant's flight from the scene of the events the subject of charge 20 as consciousness of guilt; and
3. A substantial miscarriage of justice occurred by reason of the incorrect decision to permit the prosecutor to have witnesses refresh their memory from their statements.

11 XE's evidence in support of charge 20 (sexual penetration of a child under 16) was that the offence occurred late at night in the applicant's utility which was parked on a dirt road close to his farm. After the sexual act had occurred and while they were talking, they saw headlights coming towards them. She got out of the utility and went home 'real quick' while the applicant drove off 'going pretty fast.' When XE got home she realised that the car she had seen belonged to her next door neighbour, MD, who came to their house the following day to tell her parents she was sneaking off to see the applicant.[9]

12 Both MD, who lived next door to the complainants, and BJ, the other man in his car, gave evidence for the prosecution. The men were fox hunting using a spotlight when they drove down a dirt track. They saw a utility parked beside the track, turned on their headlights and recognised the applicant's car. D said that he saw a girl walking towards the bitumen road at the end of the track. She was almost at the intersection between the track and the road when he saw her.[10] The utility then 'took off at a fair rate of knots.'[11] D and J followed the applicant's vehicle in D's car until they could no longer keep up with it. They had identified the applicant's vehicle when they shone their lights on it, but had wanted to get the number plate because fuel had been stolen at a neighbouring property.[12] D said that when he returned home he saw XE walking back into her parents' house. The following day he told her parents that he had seen XE with the applicant.

13 J said that when they turned into the road there was a figure beside the car which he could not identify as male or female. D turned on his lights and 'the vehicle shot off down East Street, flat out'.[13] He said that when they followed the vehicle it went fast and the driver 'took off at a million miles an hour which automatically alerted us [that] something wasn't right ... he became airborne over the top of the Midland Highway'.[14] When they drove to D's house DJ had identified XE walking back towards her family home.

14 In support of ground 1, the applicant argued that the only possible basis on which evidence of his departure from the scene could have been regarded as relevant and admissible was as evidence of flight, leading to an inference of consciousness of guilt.

15 In support of ground 2, the applicant alleged that the evidence of the applicant's reaction after D's car drove down the road created a high risk that the jury would rely on the applicant's 'flight' to infer that the applicant feared being discovered with XE because he was having sex with her. This risk was heightened by the reference in the prosecutor's closing address to the applicant taking off 'like a bat out of hell' after he was seen by the two men and the prosecutor's reference to the applicant 'sneaking away' after having been observed. In these circumstances the judge should have given a full Edwards[15] direction or at the very least given a Zoneff[16] direction, prohibiting consciousness of guilt reasoning.

16 The evidence was so obviously damaging, and was so highlighted in the prosecutor's closing address and the jury charge, that the failure of defence counsel to object to the admission of the evidence or to seek any direction in relation to it, did not stand in the way of the Court concluding that there had been a substantial miscarriage of justice. Further, if the jury had found the applicant guilty of charge 20 by applying consciousness of guilt reasoning, this would also have affected their reasoning relating to the other charges concerning XE and might well have also infected their reasoning on the charges relating to XS. This made it necessary for all the applicant's convictions to be set aside.

17 Counsel for the Crown submitted that the evidence of D and J did not amount to evidence of the applicant's 'flight' supporting an inference of consciousness of guilt, but was simply part of the circumstantial evidence supporting the prosecution case. The sighting of the applicant's car parked at night on a bush track corroborated the complainant's evidence in support of charge 20. Although both J and D gave evidence that the applicant had driven off quickly they said that they had chased the car in order to get its number plate because there had been thefts of petrol in the area. Neither of them said that the applicant's speedy departure from the scene led them to infer that the applicant was committing an sexual offence involving the complainant. D did not say he had identified the complainant at the scene, before the applicant drove off.

18 The Crown had not relied on this conduct as an implied admission of guilt by the applicant and there was no realistic danger that the jury would have used the applicant's departure from the scene for this purpose.

19 In our view, these grounds lack any merit. In R v Chang,[17] where the prosecutor relied on post-offence conduct to raise an inference that the accused man was aware of his guilt of the offence, and the evidence could only have been relied upon for that purpose, it was held that the judge should have given an Edwards direction pertaining to the post-offence conduct. Similarly in R v Nguyen[18] this Court held that an Edwards direction should have been given because the evidence of the applicant's conduct in concealing the gun with which he shot his stepson, created the real risk that the jury could have used that evidence as probative of his guilt of murder, in circumstances where he claimed the gun had gone off by accident.[19]

20 In the circumstances of this case, however, it is fanciful to suppose that the jury would have used the evidence of the applicant's departure from the scene to raise an inference that he was aware that he was guilty of charge 20. The applicant did not leave the area after committing the alleged offence in charge 20, but returned to his property and went on living in the house next door to the complainant's family home. Further, as the Crown submitted, if the applicant had fled from the scene to conceal his commission of a sexual offence he would not have left the complainant behind, but taken her with him. It would have been obvious to the jury that the purpose of the evidence was to support XE's evidence pertaining to charge 20.

21 Nor was there anything in the conduct of the trial that would have led the jury to rely on consciousness of guilt reasoning. We reject the argument that either the prosecutor's reference in the closing address to the applicant driving off 'like a bat out of hell' or anything that the judge said in her charge, would have encouraged the jury to do so.

22 Neither the judge, defence counsel or the prosecutor, who were imbued with the atmosphere of the trial, apparently perceived that there was any risk that the jury would use the evidence to infer guilt from the applicant's 'flight'. The applicant's counsel did not take any exception to admission of the evidence and did not ask the judge to give a direction on consciousness of guilt.

23 Defence counsel's failure to ask the judge to give such a direction was explicable and entirely warranted. As the judge correctly instructed the jury,[20] J and D's evidence of seeing the applicant's car parked by the road, with a girl nearby and their sighting of the complainant XE walking back to her parents' house on the same evening, tended to support the complainant's evidence relating to charge 20.

24 If the judge had given a consciousness of guilt direction this would have seriously disadvantaged the applicant by emphasising evidence which confirmed the complainant's account of the offence covered by charge 20.

26 In her evidence in chief the complainant XE said that before St Valentine's Day her sister XS had told the applicant that if he wanted to see her he was not to see XE.[21] On Valentine's Day XE had gone for a drive with the applicant and had penetrative sex with him, but could not recall whether she was inside or outside the car (charge 8). She was then asked whether there had been any other sexual act on that occasion and she said she did not recall.[22] This related to charge 9, an alleged act of oral penetration. The applicant was acquitted of both these charges. The complainant also gave evidence that on a particular day she had given the applicant a letter when he pulled up in his vehicle opposite her school. She was asked if she had seen him later in the day and she said that she did not remember.[23] This related to charge 12, in relation to which the applicant was found guilty. The prosecutor did not ask her about charge 16, which was an alleged indecent act of which the applicant was also acquitted.

27 At the committal hearing, the complainant adopted the statement she had made to the police on 26 January 2010, five years after the relevant events. She had been taken to the police by her mother in 2005 following her parents' conversation with D, but had told them that 'nothing was going on' with the applicant and that he was just giving her cigarettes. When she did not recall the events on which charges 9 and 12 were based, the prosecutor sought leave under s 32 of the Evidence Act 2008 ('the Act') for XE to revive her memory by reading her statement to the police, which she had adopted at the committal. The application was opposed by defence counsel.

28 Section 32 of the Act provides as follows:

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account -

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that -

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

29 There was discussion between the judge and counsel about the factors set out in s 32(2) of the Act. Reference was also made to s 192 of the Act, which enumerates other matters to be considered in deciding whether to give leave, where leave is required by the Act. The judge gave a brief ruling which simply referred to the seriousness of the allegations made by XE and permitted the complainant to use her statement to revive her memory. After reading the statement the complainant gave evidence of an act of oral penetration occurring on St Valentine's Day (charge 9) after the earlier act of vaginal penetration which she had previously given evidence about. She also testified about the act of sexual penetration covered by charge 12 and gave evidence of the applicant kissing her in the utility, while her sister and another friend were outside the utility (charge 16).

30 XS did not give evidence of the facts covered by charge 28.[24] The judge said that the same arguments pertained to this application and gave XS leave to revive her memory. Another prosecution witness, AK, who was a school friend of XE, could not remember details of a particular event or of a conversation which she had had with XE about the applicant. Her evidence-in chief was inconsistent with evidence given in the pre-trial Basha hearing.[25]

31 The prosecutor again made an application under s 32 of the Act, foreshadowing that if the application was unsuccessful, he would seek leave to cross-examine Ms K as if she were an unfavourable witness.

32 Having revived her memory Ms K gave evidence that she had seen the applicant touch XE's leg, while they were in a caravan on his property, and that XE had told her she had had sex with the applicant.

33 The applicant argued that the judge's ruling permitting XE to use her previous statement to revive her memory, had not referred to the requirement to consider whether the statement was made at a time when the events recorded were fresh in XE's memory. Nor had she considered whether the statement made to the police by XS and the evidence of AK were fresh in their memory, as was required by s 32 of the Act. These rulings were said to have given rise to a substantial miscarriage of justice.

34 The applicant submitted that in R v Graham,[26] the High Court had held that in the context of s 66 of the Evidence Act 1995 (NSW) the words 'fresh in the memory' meant a very short time after the event to which the evidence related. Section 66 excludes the application of the hearsay rule to a previous representation made by the person who made it,[27] if that person is available to give evidence about the asserted fact and 'if, when the representation was made, the asserted fact was fresh in the memory of the person who made the representation.'

35 In their joint judgment Gaudron, Gummow and Hayne JJ said that:

The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.[28]

36 Section 66(2A) of the Act was inserted to expand the meaning of 'fresh in the memory' after Graham. It now provides that:

In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and

(b) the age and health of the person, and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

37 The applicant submitted that in s 32 of the Act the expression 'fresh in the memory' had not been amended in the same manner as in s 66(2A). It followed that the provision required the judge to apply the principle in Graham[29] in deciding whether the document was made whilst it was fresh in the memory of the witness. The judge's failure to consider this issue and the decision to permit the complainant to have the witness refresh her memory had resulted in a substantial miscarriage of justice.

38 Further, the judge had not considered this issue at all in relation to the use of the statement by XS or the use of evidence given at the Basha hearing to revive K's memory. Because the evidence of the two complainants was crossadmissible this omission was said to require the setting aside of convictions on the other charges.

39 The respondent submitted that the judge had in fact considered whether the relevant events were fresh and that she had not failed to exercise her discretion appropriately.

40 Although it is unnecessary to decide the question we would have difficulty in accepting the argument that 'fresh in the memory' for the purposes of s 32 of the Act should be read in the same manner as it was interpreted in Graham for the purposes of s 66, which modifies the hearsay rule. Moreover the discussion between counsel and the judge, prior to the judge ruling on the application in relation to the first complainant, makes it clear that her Honour was well aware of the need to take account of whether the events recorded in the statement were fresh in the memory of the witnesses, in exercising her discretion. Thus we are not persuaded that there is any merit in the argument that her Honour erred in giving leave to the complainants XE and XS to revive their memory.

41 Moreover even if the judge should not have permitted the use of the statements which XE and XS adopted at the committal, we do not consider that this resulted in a substantial miscarriage of justice. The complainants[30] and Ms K[31] were cross-examined about the evidence they gave after reviving their memory. The applicant was acquitted of charges 9 and 16, though he was convicted of charge 12, and charge 28. K's evidence of the 'touching the leg' incident did not relate to a charged offence. In light of the other evidence relied on by the Crown, K's evidence was inconsequential.

42 It is unnecessary for the purposes of this application to decide whether s 32 of the Act replaces the common law principles governing the use of documents to refresh memory.[32] But even if s 32 comprehensively states the principles governing the discretion to permit use of documents to revive memory, and the judge misapplied those principles, no substantial miscarriage occurred as a consequence of the judge's rulings. There were other ways in which the prosecutor could have got the evidence relating to charges 12 and 28 before the jury. The prosecutor could have sought leave to put leading questions to XE and XS, relating to their statements.[33] If such an application had been made, it would almost certainly have been granted. As the prosecutor foreshadowed, he could also have sought leave to cross-examine Ms K under s 38 of the Act.

43 For these reasons we would refuse the application for an extension of time.

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in the place of the name of the applicant, witnesses and complainants.

[2] Criminal Procedure Act 2009 s 275(1).

[3] Supreme Court (Criminal Procedure) Rules 2008 r 2.23(3).

[4] (Unreported, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975).

[5] [1979] VicRp 1; [1979] VR 1, 5.

[6] [2013] VSCA 83; (2013) 275 FLR 454.

[8] VLA records indicate that a prison advice lawyer obtained an application for legal assistance on 28 March 2012, which was received by VLA on 2 April 2012. Advice on the merits of an appeal against conviction and sentence was provided on 17 September 2012. At that stage it was considered that only the sentencing appeal had merit.

[11] T 562, at T 572 in cross-examination it was put to him that he had said in his evidence in chief that it was travelling at a fast rate of knots and he agreed that he had said that.

[15] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210-11 ('Edwards'). Note that the applicant was convicted prior to the Jury Directions Act 2013, s 25 which alters the relevant requirements, coming into force.

[16] R v Zoneff (2000) 200 CLR 234, 244 ('Zoneff').

[17] [2003] VSCA 149; (2003) 7 VR 236.

[18] [2001] VSCA 1; [2001] 118 A Crim R 479.

[19] Compare Dhanoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 12 [34], where Gleeson CJ and Hayne J considered that it was unnecessary to give either an Edwards direction or a Zoneff direction in a situation where there was no real risk that the lie or conduct would be used as evidence of an accused person's awareness of guilt.

[25] The Basha process exists to ensure a fair trial by providing the accused with sufficient information about a witness' evidence so that he or she can adequately present his or her defence (R v Basha (1989) 39 A Crim R 337; R v Sandford (1994) 33 NSWLR 172).

[26] [1998] HCA 61; (1998) 195 CLR 606 ('Graham').

[27] Or by a person who saw, heard or otherwise perceived the representation being made.

[28] [1998] HCA 61; (1998) 195 CLR 606, 608 [4].

[29] [1998] HCA 61; (1998) 195 CLR 606.

[32] For discussion of the question whether the Act is a code of evidence law see Stephen Odgers, Uniform Evidence Law, 1.1.40. It is clear that while some sections abrogate the common law, (for example the principles relating to admission of hearsay evidence and competence and compellability of witnesses, as to which see R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465), others do not (for example the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298: see Australian Securities Commision v AS Nominees Ltd [1995] FCA 1663; (1995) 62 FCR 504, 516).