Russell v The Queen [2013] VSCA 155

1 I respectfully agree in the reasons of Harper JA, and with the orders which his Honour proposes.

2 Respecting Ground 2, I add this: The relevant cross-examination of the complainant may only have been directed to showing why it was that the applicant remembered the complainant some 40 years after the alleged offending began; or it might have been an intended - but dangerous - attack on the complainant's character by reference to an incident said to have happened long ago. Again, it might have been intended to set up a motive but without directly confronting the complainant. But even if the last-mentioned was the intent, it is nonetheless clear that the alleged incident was not distinctly advanced in the complainant's cross-examination as providing a motive for him to make the allegations against the applicant which he did.

3 Despite that being the situation, and despite the applicant giving no evidence about the alleged incident in examination in chief, cross-examination of the applicant relevantly began with this question:

You heard it put to him that he has in fact made up these allegations because you threatened to dob him in?

That had not been put to the complainant, and the prosecutor should not have asked a question which asserted that it had been. Counsel for the applicant should have objected; but he did not do so. In one sense, no harm was done; because the applicant gave a non-responsive answer. Nonetheless, the question was the starting point for the edifice which the prosecutor erected concerning motive, and the absurdity of the motive thus identified.

4 Following a four-day trial by a jury in the County Court, the applicant (who is

presently in his 69th year) was on 28 October 2011 convicted of six charges of buggery and acquitted of one such charge (charge 4). He now seeks leave to appeal against both his conviction and the sentences which, following a plea which was heard on 30 November 2011, were on 8 December 2011 imposed upon him, as follows:

[Crimes Act 1958 (Vic) s 68(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 68(1)]

Buggery [Crimes Act 1958 (Vic) s 68(2)]

15 years' imprisonment [Crimes Act 1958 (Vic) s 68(2)]

Concurrent with each other and 7 months cumulated on other charges

8 years and 4 months' imprisonment, 5 years to be served cumulatively on previous sentence. New total effective sentence of 14 years and 5 months' imprisonment.

Sentenced as a serious sexual offender on all charges.

5 The applicant was born on 25 December 1944. The complainant was born almost nine years later, in 1953. The offending occurred when both were living in a Victorian provincial town.

6 The Crown case at trial was that on numerous occasions between 1 January 1962 and 31 December 1968 the applicant inserted his penis into the anus of the complainant, who was then aged between nine and 14. Six of those occasions became the subject of the charges faced by the applicant on his trial, with the seventh arising out of an incident in which the applicant required the complainant (who obeyed) to perform the same acts upon the applicant. The remainder were presented to the jury as uncharged acts.

7 The applicant, who gave evidence at his trial, denied any improper contact with the applicant. Indeed, his evidence was that the two met only once, at the premises of dealers in automobile parts. That occasion - although significant in the context of this appeal - was completely devoid of any sexual content.

8 The complainant was the principal witness for the prosecution. He was generally able to describe the locations at which, according to him, the offending took place. Some of his descriptions were nevertheless challenged. Those challenges form part of the basis of the applicant's proposed grounds of appeal, which will be set out in full later in this judgment. Other proposed grounds raise issues concerning (a) the evidence surrounding the meeting at the premises of dealers in automobile parts; (b) the trial judge's directions to the jury about the implications of that evidence; (c) the complainant's delay in making his allegations against the applicant; and (d) what is said to be (i) a 'contradiction' between evidence given by the complainant and evidence given by the complainant's brother; (ii) the generally unsatisfactory nature of the evidence called by the prosecution; and (iii) an inconsistency between the applicant's acquittal on charge 4 and his conviction on the remainder of the charges.

A summary of the evidence upon which the grounds of appeal against conviction are based

9 It may assist in the assimilation of the proposed grounds of appeal against conviction if, before these are set out in detail, something of their background is examined.

10 The complainant identified the first of the relevant incidents (giving rise to Charge 1) as having taken place in 1962 at a house in which, according to the complainant, he assumed the applicant was then living. The applicant subsequently swore that he had never lived there. In the meantime, evidence supporting the proposition that this was indeed the then residential address of the applicant came from a source which is now one of the centres of controversy on this application.

11 The evidence in question was given by a witness called by the Crown: the informant, Detective Senior Constable Peter Colliver. But it was not the product of answers to questions put to him during his evidence in chief. On the contrary, the evidence was given while Mr Colliver was being cross-examined by counsel for the applicant, who extracted from the witness evidence to the very opposite of that which the applicant would subsequently give.

12 Mr Colliver told the jury that he had made enquiries of the applicant's brother about where the family lived 'at the relevant times between 1961 and 1969.' According to Mr Colliver, the applicant's brother confirmed that, from an unidentified date until 'around 1966', when the family moved to a nearby township, the Russell family home was in the street identified by the complainant as the street in which he assumed the applicant lived, because the events giving rise to Charge 1 took place in a house in that street.

13 A second focus of disputation arose out of the evidence of the applicant. He told the jury that he only met the complainant once. It was in 1966, at the premises of dealers in automobile parts. The complainant, a schoolboy of about 13 years of age at the time, had a job at one of the two sets of premises at which the meeting took place. The applicant wanted to purchase a generator, a voltage regulator and a starter motor. The complainant's employer was the first port of call. According to the applicant, the complainant 'offered in effect to steal [the] parts and sell them to [the applicant, who] refused the offer.'

14 The proposition that the complainant had offered to steal the generator, the voltage regulator and the starter motor which the applicant wished to purchase from the complainant's employer was first raised in cross-examination, and then only indirectly. At its highest, the cross examination of the complainant was directed at whether he had ever been 'dobbed in' by the applicant about 'selling spare parts on the side' to the applicant, and whether he (the complainant) had ever had a 'problem' about this. The complainant denied that the applicant had ever reported him to any employer, and (consistently with this) denied any 'problem' of the (unparticularised) kind about which he was questioned. The relevant portion of the cross examination proceeded as follows:

Question: You had worked I think in the car industry if I can call it that?

Answer: Yes, I've worked as an auto-electrician ... at an auto electrical garage ... probably when I was ... maybe 14 or 15 and when I left school he offered me a full time job and I worked there until I was 19.

Question: Did you have a problem there at one stage in relation to you selling some parts, not authorised by [your employer]?

Answer: Everything I did at [my employers] I was authorised to do in my particular role and if I sold anything, it was my job. I was also the spare parts salesman.

Question: Did you have a problem with selling spare parts on the side that Mr Russell had dobbed you in for to [your employer]?

Answer: Never, never.

Question: Are you sure about that?

Answer: Absolutely.

...

Question: Did Noel Russell dob you in to [your employer] for selling spare parts when you weren't authorised to do that out of his shop?

Answer: No.

15 In these circumstances, it is no surprise that the applicant's counsel never asked the complainant, directly or indirectly, whether he was so upset about being the subject of an allegation of theft that, forty years later, that grievance motivated him to falsely accuse the applicant of very serious sexual criminality. Nevertheless, the prosecution seized upon what it painted to the jury as a misuse by the applicant of a motive which (or so the prosecution argument continued) the complainant never had.

16 The prosecution case on this issue was that the complainant's allegations about the applicant's sexual predations were true and that, knowing they were true, the applicant sought to inject a smokescreen between them and the jury. The smokescreen was the attribution to the complainant of a motive for him to make totally false allegations against the applicant, an innocent man. But - as the prosecutor told the jury - this tactic was so transparently misconceived that it discredited the entire defence.

17 The applicant's response differed as between the trial and the hearing of this appeal. At the trial, counsel for the applicant made no response to this attack by the prosecution, save to tell the jury in his final address that:

Noel Russell gave evidence ... that he had only met [the complainant] on one occasion. We don't have to prove motive, we have no reason to do it. In this case you might find motive, you might not. But it doesn't go to the root of the Crown case.

18 On the hearing of the appeal, the applicant emphasised, correctly, that he had never sought to attribute to the complainant the motive with which the Crown sought at the trial to destroy the defence. His position before this Court was that the allegation in question - that, having been reported to his employer for misconduct as an employee, the complainant thereafter held a grudge against the applicant which surfaced forty years later in a series of untruthful allegations about non-existent sexual assaults - was never put to the complainant because it was never part of the applicant's case. Indeed, the applicant's position is that, far from being his case, the prosecution has done him a gross injustice by attributing to him a wrongful use of motive as if it were his case. He claims that the prosecution had constructed a castle of straw, wrongly designated it as one of his (the applicant's) strongholds, and then blown it down to the sound of trumpets. The applicant contends, in other words, that the prosecution sought at the trial to persuade the jury that he must be guilty because only a guilty man would run such a paper-thin defence; a defence based upon the proposition that, as a means of revenge upon the applicant for 'dobbing him in' forty years before, the complainant had made up the very serious charges of which the applicant was subsequently convicted.

19 The result, the applicant submits, has been a substantial miscarriage of justice.

20 The applicant has other criticisms of the verdicts. These are based in part upon the weakness (as he would have it) of the prosecution case. He points to the evidence, given by the complainant, that he (the complainant) had told his brother Robert that the applicant had been molesting him; while Robert told the jury that he had no memory of any such conversation.

21 Another criticism which the applicant has of the verdicts is that those where he was found guilty are inconsistent with the verdict on the fourth charge. That charge resulted in a verdict of 'not guilty'.

22 The remaining attacks upon the applicant's convictions are directed to supporting the proposition that they are unsafe.

The proposed grounds of appeal against conviction

23 Given this background, it is now convenient to set out all the proposed grounds in full. They are as follows:

Ground 1

The trial judge erred in directing the jury that they could use the evidence of Detective Senior Constable Colliver of what he had been told by Douglas Russell as evidence of the facts asserted by [Douglas] Russell.

Ground 2

The trial miscarried because:

(a) the prosecutor asserted in cross-examination and in his final address that the applicant's denials of wrong doing lacked credibility because of the implausibility of a grudge theory which are not in fact being asserted as an explanation for the complainant's allegations by the defence; and

(b) the judge failed to give the jury a clear direction to ignore this line of reasoning while repeating the prosecution argument in the charge.

Ground 3

The convictions are unsafe because of the following matters:

(a) the delay of 40 years in complaining;

(b) the contradiction between the evidence of the complainant and that of his brother, Robert;

(c) the lack of any circumstantial support for the complainant from any of the other witnesses to the trial;

(d) the uncertainty arising from the unavailability of witnesses and evidence bearing upon the circumstances of the alleged offences;

(e) the vagueness of the complainant's evidence about when the alleged offences occurred.

Ground 4

The convictions are unsafe because they are inconsistent with the acquittal on charge 4.

24 Charge 1 alleged that the first occasion on which the complainant was violated by the applicant occurred between 1 January 1962 and 31 December that year. According to the complainant, his first sexual encounter with the applicant occurred when he was nine years' old - which is consistent with that encounter happening in 1962. He also said that it occurred in a house in a street which he named. He assumed that the applicant was then living in that house.

25 The applicant maintained that he had at no time lived in the street identified by the complainant. His evidence was, however, contradicted by evidence given in cross-examination of the informant, Detective Senior Constable Peter Alan Colliver. The following exchange occurred between the witness and counsel for the applicant:

Question: At any time during the course of the investigation ... did you check to see where Noel Russell was living? What I mean by that is, [did you] check to see any leases or any estate agents to see where he was residing at the relevant times between 1961 and 1969?

Answer: I didn't check any leases or real estate agents. I made some enquires.

Question: Yes, who did you make those enquiries with?

Answer: I made some enquiries [of] his brother [Douglas Russell].

...

Question: And those enquiries of Dougie, you found out Noel Russell lived where during the period of time?

Answer: From my recollection, I asked him specifically in relation to a property in [the street identified by the complainant].

Question: Yes?

Answer: Again, without referring to my notes, my recollection is that he confirmed that they lived in a house in [the identified street].

Question: Are you aware as to when that was that they apparently lived in [the identified street]?

Answer: I'd have to check the notes.

Question: Have you got those notes here?

Answer: The originals are in my briefcase.

...

Question: And you made enquiry of him whether the Russells ever lived [in the identified street]?

Answer: Yes.

Question: And your note tells you what?

Answer: [They] moved from [the identified street] to [another town in] ... around 1966.

26 The evidence which thus emerged from cross-examination went on to cover, inconclusively, references in Mr Colliver's notebook to the numbers '62' and '63'. These references were noted by counsel for the applicant after he had examined the notebook. But in his subsequent questioning of the witness counsel failed to clarify whether the '62' and '63' referred to the year in which the Russell family lived in the identified street, or whether they referred to the street number of their home.

27 The effect of the hearsay evidence elicited by this unusual means was that the applicant's family, but not necessarily the applicant himself, lived in the identified street at some time in the early to mid 1960's. In her charge to the jury, the trial judge told them (in effect) that they could use that evidence as proof of that fact. Her Honour said of this issue:

Of course, defence say that Mr Russell never lived in [the identified street], that he did not even know [the complainant] and he denied ever penetrating him at any stage and particularly he did not live in [the identified street], and there was other evidence, you may recall, that was given by the informant that Mr Russell's brother had told the informant that the family did live in [the identified street], so the evidence, as I say, is purely a matter for you, so it is for you to decide what you make of the evidence.

28 The jury asked a question in the course of its deliberations. It concerned the evidence now under discussion. The judge answered the question by instructing the jury that:

Now the sworn evidence is the evidence of the police officer who said he spoke to... Mr Doug Russell, and he took notes of what Mr Doug Russell told him. So he is the one giving the sworn evidence, not Mr Doug Russell, but that is what Mr Doug Russell told him at that interview and then he read that material into the transcript and therefore it becomes evidence. So it is evidence, but it's evidence of what he was told. It's not the actual sworn evidence... It is part of the evidence.

29 In my opinion, neither the initial charge nor the answer to the jury's question was an accurate reflection of the applicable law. When Mr Colliver gave his evidence about the statement made to him by Douglas Russell, he was giving evidence of 'a previous representation made by a person'. These words appear in s 59(1) of the Evidence Act 2008, in which the hearsay rule is set out; and the sub-section goes on to provide that such a representation 'is not admissible to prove the existence of a fact that it can reasonably be supposed that the person (in this case, Douglas Russell) intended to assert by the representation.'

30 In other words, the information given by Douglas Russell to Detective Senior Constable Peter Colliver about the address of the family home was not admissible (unless the information fell within one of the exceptions to the hearsay rule) to prove that address. Yet the judge told the jury that 'Mr Russell's brother told the informant that the family did live in [the identified street]' and that 'the evidence, as I say, is purely a matter for you, so it is for you to decide what you make of the evidence.' Further, the answer to the jury's question left it open, in my view, for the jury to understand that what the brother had said was evidence of the fact. The true position was not made clear. In substance, the jury were told that they could use Douglas Russell's statement to prove the family's address in the early to mid 1960's. In my opinion, this was impermissible. That is so because no exception to the hearsay rule was engaged. Section 65 of the Evidence Act 2008 did not apply, because there was no evidence that the brother was not available to give evidence. All that emerged was that the brother had been unwilling to make a statement. Neither, to the contrary, was it established that the brother was available to give evidence. But even if that was the case, s 66(2) of the Evidence Act was not engaged, because the brother had not been called, and was not to be called, to give evidence.

31 It is of course true that the evidence was adduced by the applicant's counsel. But it could not have been intentionally adduced for the purpose of proving the family's then address, because that evidence was under direct challenge by the applicant himself. Unfortunately, incompetence is the only viable explanation for the otherwise inexplicable. That, or a milder form of it, is what her Honour ought to have told the jury; adding in clear terms as she did so that they should entirely disregard this evidence.

32 In the event, the judge erred in giving a direction the substance of which was as I have described it. The direction was 'an error or irregularity in, or in relation to, the trial'. The question is then whether the applicant has satisfied the Court that, 'as a result' of that error or irregularity, 'there has been a substantial miscarriage of justice': see s 276(1)(b) of the Criminal Procedure Act 2009.

33 There is no 'single universally applicable description' that 'can be given for what is a "substantial miscarriage of justice" for the purposes of s 276(1)(b)(c).'[1] But a miscarriage of justice will occur 'where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial'.[2] In the present case, that requires this Court to determine whether, based on its own independent assessment of the record, and having excluded the impact of the erroneous direction, the jury, acting reasonably on the evidence properly before it, and applying the correct onus and standard of proof, would have been bound to convict on Charge 1.[3]

34 Absent the police officer's evidence of what he had been told by the applicant's brother, and the judge's direction pertaining to that evidence, there was left a direct conflict between the evidence of the complainant and the applicant as to a significant aspect of the alleged offending the subject of Charge 1. I am persuaded that the jury would not have been bound to convict in those circumstances.

36 I turn to Ground 2. In my opinion, it is also made out.

37 I have set out, in [14] above, the transcript which contains the relevant passage from the cross-examination of the complainant. When the applicant gave his evidence-in-chief, he described what he said was the approach made by him to the complainant's employer for the purpose of buying a starter motor, an alternator and a voltage regulator. He also gave evidence about what he said was the complainant's suggestion that he (the complainant) would 'get them for you'. It is I think significant that the applicant said nothing at this point about any motive which the complainant might subsequently have formed. Indeed, the applicant said nothing about reporting to the complainant's employer any allegation of misconduct by the complainant.

38 The issue was, however, taken up in the following passage in the course of the applicant's cross-examination:

Question: You heard it put to him [the complainant] that he has in fact made up these allegations because you threatened to dob him in?

Answer: I did dob him in, I didn't threaten to, I told [a senior employee of the employer].

Question: You did?

Answer: When [the senior employee] was putting the voltage regulator and the alternator and that ... I said ... [the complainant] offered to get me these and put them out on the river bank. He [the senior employee] said 'Oh, ... I'll fix that bastard'.

39 Later in the cross-examination of the applicant, the following passage appears:

Question: In fact you say that he's made all this up because you dobbed him into the foreman?

Answer: That's only a theory. I don't know why he said it.

Question: Only a theory?

Answer: That's right. That's the only one I can come up [with] because I did dob him in.

Question: Because there is no other earthly basis in your mind, upon which he could base his allegations?

Answer: Not that I know of.

40 The prosecutor took this matter up in his final address. At the very beginning of that address, he told the jury that they 'have heard, in relation to [the complainant] that he's got a motive to lie.' Later, after referring to the complainant's delay in making the allegations which resulted in the applicant being charged, the prosecutor continued:

Then what happens? Is it this? Is it payback? Payback to the accused for something that happened 40 years prior, something you might think of no real consequence at all, to get back at the accused, a man he's met for a minute or two minutes? To get back at him he concocts these allegations about the accused's behaviour some 40 years prior. Common sense would tell you that that defies common sense.

...

What also I want you to bear ... in mind [is] the improbability, and this is not for a moment suggesting that there is any onus of proof on the accused, but the improbability of the accused never knowing [the complainant] for more than a minute when he tried to flog him some of his boss' equipment, or stock. For a minute, that some 40 years afterwards for some reason he wants to pay him back because he dobbed him into the foreman. ... Why? Why wait 40 years? That's the improbability and that's something I ask you to consider.

...

That story that the accused gave you about these parts missing, in my submission to you, is something he has made up. Try and cook up something to try and show that [the complainant] had something against him. And when you analyse it, it doesn't stand up, but don't forget that that is not to say that the accused has to prove anything, for it's the Crown to so satisfy you that you should reject what he says, what the accused says. When you assess him as a witness you should ... look at the other evidence and you take his evidence, you should reject his evidence. ... You look at it all and you say 'what do we accept?' and in doing that you make your assessments of the witnesses.

What I am submitting to you is, that when you do that, you will reject out of hand what the accused told you and, in my submission to you, you'd act accordingly on the evidence of [the complainant].

41 In her charge to the jury, her Honour said this about the question of the complainant's motive:

Now, another matter which arises is that in this case Mr Russell gave evidence and raised the argument that [the complainant] had a motive for falsifying the allegations made, that [the complainant] had a reason for falsifying the allegations made ... against him. He gave evidence that in about 1966 or 1967, following the incident where Mr Russell had rolled his car, some parts went missing from it and that [the complainant], who was then a 14 year old ... [was] working part time for the [dealer] ... who sold the spare parts.

Mr Russell gave evidence that while he was there [at another dealer's premises, the complainant] appeared to him and said 'don't buy them, I will get you the parts and I will leave them on the river for you tonight', and Mr Russell said that he told him not to bother and Mr Russell said that he later told the foreman manager ... what [the complainant] had done and the foreman said to Mr Russell, allegedly said, 'I'll fix the bastard', and so Mr Russell said that this was the only motive he could think of, he did not specify that as a motive for [the complainant] bringing out these matters 40 years later.

Now the prosecution disputed that claim, saying that [the complainant] had no such motive, that the incident in relation to offering to obtain the spare parts dishonestly simply had not occurred and further that even on Mr Russell's evidence, that conversation lasted about one minute and that, according to Mr Russell, that was the only contact he had ever had with [the complainant] and ... the prosecution argued that it was highly improbable that [the complainant] would then invent a story some 40 years later, as [the complainant's] evidence was that he continued to work for his employer during his schooling and after he left school and continued to work there until he went into the army when he was 19, and he continued to be employed there after he had made his application to go into the army and his employer was aware of that.

Now, it is important that you understand that if you accept that this submission by the prosecution, that is, if you reject the defence argument that [the complainant] was lying [about being a sexual victim] because of something that occurred in a one minute conversational transaction 40 years ago, that is not the same as accepting that the complainant was telling the truth when he made the allegations. All that you are doing is eliminating one possible reason for rejecting [the complainant's] evidence.

It is still possible that [the complainant] was lying. He may, for example, have a motive for lying that Mr Russell does not know about, and just because you have rejected the motive that has been suggested by Mr Russell does not mean that there may be some other motive, although there has been no hint of that in the evidence.

42 The applicant's evidence and the prosecutor's final address greatly diverged upon the issue of motive. The applicant's position was that he did not know why the complainant had made the allegations which were before the Court, and the attribution to the complainant of the motive suggested by the Crown was no more than a 'theory'. It was certainly not part of the applicant's affirmative defence as stated in his evidence in chief. But then the prosecutor portrayed the motive put to the applicant in cross-examination as an important, if not vital, plank in that defence. The Crown would have the jury accept that the allegations 'defied common sense', and were 'cooked up' to try to show why the complainant might have such a huge grudge against the applicant that the former would falsely allege criminal misconduct. Further, the attempt to attribute a motive of this kind to the complainant was so absurd that the jury could assess the applicant's credibility in the unfavourable light which this defence construct cast upon it.

43 Then it is necessary to consider the judge's charge. Her Honour accepted as legitimate the prosecutor's characterisation of the applicant's case. She told the jury that the applicant 'gave evidence and raised the argument that [the complainant] had a motive for falsifying the allegations' when the applicant did no such thing. Her Honour thus conferred upon the inappropriate characterisation put forward by the prosecution the gravitas which judicial endorsement brings; and in doing so the judge in my opinion compounded the prosecutor's mistaken approach.

44 When the prosecutor tells the jury that the defence case is something which in fact it is not, and adds that because it is as the prosecution says it is the jury should come to an adverse finding about it, a miscarriage of justice is likely. And when the judge in charging the jury endorses the prosecution approach, the result, it seems to me, is that there has been an error or an irregularity in, or in relation to, the trial - see s 276(1)(b) of the Criminal Procedure Act; or else falls within the purview of s 276(1)(c).

45 In either case, the question whether there has been a substantial miscarriage of justice arises. Applying the test which I described at [33] above, I cannot conclude that the jury would have been bound to convict on any charge. I would for these reasons uphold the second proposed ground of appeal.

46 By contrast, in my opinion the remaining proposed grounds of appeal lack substance. The delay is not of itself enough to condemn the prosecution, and no particular disadvantage or injustice is alleged. The fact that the complainant's brother could not remember the complainant telling him about the applicant's abuse is surprising, but hardly fatal to the prosecution: it is a matter for the jury to place on the scales. The lack of 'circumstantial support' for the complainant's evidence, and the fact that the complainant was the only significant prosecution witness, whose evidence may on one view be described as 'vague', is likewise a matter for the consideration of the jury, but not of itself fatal to the prosecution. Finally, there were a number of reasons why the jury could legitimately distinguish charge 4 from the other charges when deciding that on charge 4 alone a verdict of not guilty should be returned. The complainant conceded that he was mistaken about the name of the road on the verge of which the alleged assault took place, and his description of its physical characteristics was uncertain.

47 The application for leave to appeal against conviction should be granted, the appeal heard instanter, and allowed. A re-trial should be ordered. In these circumstances, the application for leave to appeal against sentence falls away.

[1] Baini v The Queen (2012) 293 ALR 472, [26].

[3] The case is not one in which it could be said that there was no trial at all.