S L S v The Queen [2014] VSCA 31

S L S v The Queen [2014] VSCA 31 - VSCA 2014 case summary — Zoe

[151]

124 Concerning the Board hearing, the following circumstances derive from the materials before the judge: (a) by correspondence preceding the hearing, the appellant sought reinstatement and the school offered the appellant the chance to resign as at the date of his summary dismissal; (b) if the appellant had been guilty of gross[37] misconduct, the school had been entitled to dismiss him summarily; (c) otherwise, in the event of termination, he was entitled to receive a term's pay; (d) in correspondence preceding the hearing, the appellant's solicitor had complained that his client had not been afforded an opportunity of knowing what was alleged against him;[38] (e) at the hearing, the appellant's solicitor opened his client's case. He submitted that his client had not been given warning of dissatisfaction with his teaching, or of the allegations now made.[39] If gross misconduct was alleged, particulars should have been given. If the issue was of the appellant not teaching properly, then he should have been given a term's notice. If such notice had been given, then it might not have been necessary to provide reasons for the termination;[40] (f) the appellant then gave evidence, and denied the allegations of sexual misconduct. He was cross-examined, and re-examined. At least in re-examination he referred to what has now become his alibi. He did not call alibi witnesses; (g) KL then gave evidence. She was examined and cross-examined. She had her complete diary with her. At the committal, she variously said that the appellant's solicitor had asked her questions about her diary. She either denied or could not recall whether she was asked about entries in the diary for days other than those on which she alleged that the offences had been committed. The lawyer had implied that she was having fantasies in her diary. But they were not fantasies. The lawyer had not pointed to a number of incidents of fantasy in the diary. She could not recall being questioned 'specifically about other dates'; she could not 'actually remember'. It had been distressing to be told that what had happened was a figment of her imagination; (h) others present at the Board hearing have stated that KL was cross-examined on her diary;[41] (i) by the settlement, the allegation of gross misconduct was withdrawn, and in lieu of summary dismissal the appellant was given a term's pay - but not reinstatement. The school was also to provide 'an acceptable reference in relation to [the appellant's] teaching abilities'; and it did so.

[220]

[JT] was a 14 year old student at Berwick Secondary College in 2003. The [appellant] was her singing teacher. He sent her three postcards, signed off with kisses when he went on holidays. On his return he 'groped' her, grabbed her bottom and tried to kiss her. During a private lesson he touched her on the legs and bottom and called her 'honey'. He touched her breasts, telling her he needed to do so to check her breathing technique. He commented on her breasts and told her she should show them off. He arranged for her to record her singing at a studio away from the school. Whilst there he grabbed her bottom.

[AW] was a 15 year old student at Berwick Secondary College in 2004. The [appellant] was her singing teacher. During a lesson he tickled her knee, put his arms around her knees and hugged them, and placed his hand on her inner thigh. He did the same a week later, placing his hand further up her thigh on this occasion. The following week he hugged her at the start of the lesson, and groped her breasts.

[JS] was a 15 year old student at Berwick Secondary College in 2004. The [appellant] was her singing teacher. Over a period of some months during her private singing lessons he would regularly hug her, kiss her on the cheek and hold her hand while she sang. On an occasion in October 2004 he picked her up and hugged her, with her feet off the ground, and holding her body close to his for about two minutes, before putting her down. He kissed her on the forehead, the cheek, and on the lips. He said to her, 'I can't wait until you turn 16. Oh how I adore you'.

[KD] was a 14 year old student at Emerald Secondary College in 2004. The [appellant] was her music teacher. At a small group lesson in August 2004, saying he was checking her breathing, the accused placed one of this hands on the front of her body on her pubic hairline, and the other on her bottom. Some weeks later, again in a small group singing lesson, the [appellant] patted her bottom three times and called her 'lovey'. Some weeks after that during a singing lesson the [appellant] touched her breasts, saying he was checking her breathing.

[VS] was a 15 year old student at Emerald Secondary College in 2004. The [appellant] was her music teacher. She was in the same small group lesson as [KD]. On one occasion during a lesson the accused touched her breasts during a warm up exercise. On another occasion he rubbed her thigh with his hand while she was seated beside him on the piano stool.

[258]

213 There is a related criticism. It would provide a second powerful basis for ruling that the proposed evidence did not fall under s 79 - that is, because it had no probative value; or else, if it was considered to satisfy the opinion evidence threshold, for excluding it under s 135. There was a subtle yet seductive vice associated with Dr Owen's proposed evidence. She has been involved in the treatment of proven sex offenders over a number of years, so that the grooming behaviours that she has observed, or which emerged from the modus operandi questionnaire, were of proven or admitted child sex offenders. Some of the conduct of those offenders - which was described generically as 'grooming' - could be recognised as such once the commission of the sexual offending against the relevant children had been established. Prior to that point, however, as her report reveals, the conduct could not be properly be characterised as grooming, since by and large the impugned conduct was also consistent with innocent interaction. In other words, the impugned conduct or behaviours only took on the characteristics of grooming for sexual purposes once the offending had been established. Thus to endeavour to use the hypothetical man's conduct as 'grooming' in order to establish that it fitted the modus operandi of sex offenders (and thus, in substance, to make it more likely that he had committed the charged offences) was to promote wholly circular and illogical reasoning, since his conduct could only be seen to be grooming once the relevant offences were established. It truly begged the question, as can be seen from witness's report, in which the commission of the charged offences was a circumstance called in aid in proof of the appellant's grooming behaviour. As we have pointed out at [202] above, the 'hypotheticals' did not create any different situation. In truth, the jury could only be satisfied of this aspect of 'grooming behaviour' if it was satisfied of the commission of the offences. That was so despite the prosecution's somewhat simplistic attempt, via the 'hypotheticals', to divorce Dr Owen's proposed opinion from the conduct of appellant.

[281]

32D Restriction on granting leave

(1) A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that -

(a) the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

(b) other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and

(c) the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account -

(a) the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;

(b) the extent to which the protected evidence is necessary to allow the accused to make a full defence;

(c) the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

(d) whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

(e) whether the protected confider objects to the disclosure of the protected evidence;

(f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

(3) A court may grant leave to compel the production of, or to produce or adduce, part of -

(a) a confidential communication; or

(b) the contents of a document recording a confidential communication -

and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.

(4) The court must state its reasons for giving or refusing to give leave under this section.

(5) If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

[305]

The circumstances in which the pleas of guilty were entered, and the statement of fact was agreed were the subject of evidence on a voir dire. Sergeant Van Geyzel gave evidence he was the prosecutor with the carriage of the prosecution of the accused on multiple charges of sexual offences against multiple complainants, which was booked in for a 10 day contested summary hearing in the Melbourne Magistrates' Court in February 2008. After the first complainant gave evidence and was cross-examined on the first day, [named] defence counsel then appearing for the accused, had entered into negotiations with him to settle the matter.

The matter was ultimately resolved by the accused entering guilty pleas to 10 charges of indecent act, one in respect of each of 10 complainants. Each charge was a rolled up charge, alleging the accused engaged in indecent acts with the particular complainant between specified dates, generally a period of some weeks or months.

A summary of the facts in respect of each individual rolled up charge was negotiated between Sergeant Van Geyzel and the accused's counsel. It identified, complainant by complainant, the particular acts and surrounding circumstances which were encompassed by each rolled up charge. As is customary in summary prosecutions, the prosecutor had prepared a summary of charges, and in the course of negotiations, the summary was amended. As Sergeant Van Geyzel said in cross-examination, some of the amendments were favourable to the defence, some to the prosecution. Following the negotiations over the content of the summary, defence counsel conferred with the accused for, Sergeant Van Geyzel estimated, approximately 1 hour. He then told Sergeant Van Geyzel the summary was agreed.

Sergeant Van Geyzel said the court then reconvened, and the accused pleaded guilty to the 10 rolled up charges, the remaining charges were withdrawn, and the agreed summary was read to the court. Sergeant Van Geyzel identified the copy summary tendered before me on the voir dire with handwritten amendments on it as a true copy of the agreed summary he had negotiated and read to the court. He said the handwritten amendments were in his handwriting. He said he read aloud on the plea hearing the whole of the agreed summary, save for the passage concerning the complainant [JT], word for word from the document. The summary concerning [JT] was not read aloud. He said [JT] was the complainant who had given evidence the previous day. The parties agreed the summary accurately summarised the evidence she had given the previous day, and by agreement, the factual basis for the charge concerning [JT] was the whole of her evidence the previous day. He said, and was not challenged on this, that [JT's] evidence was untouched by cross-examination. It follows the foreshadowed oral evidence from [JT] is the same as the evidence which was relied on for the purposes of the plea, and the summary in the agreed summary is an accurate summary of the evidence she actually gave.

Sergeant Van Geyzel said he was confident he had read the agreed summary, in respect of the other 9 complainants, word for word, without omission or addition, in accordance with his practice when a plea had been negotiated on an agreed set of facts. The audio recording of the evidence adduced from [JT], the entry of the guilty pleas, and the reading of the agreed summary no longer exists. It was destroyed in accordance with what was then the normal practice in the Magistrates Court, some time after the time for appeal had expired.

[334]

278 This Court has consistently emphasised the need for interlocutory appeals to be confined to circumstances which rigorously comply with the filter imposed by s 295 of the CPA;[107] and it has consistently attempted to dispose of appeals expeditiously. But preparation for, hearing and resolution of these interlocutory appeals has occupied a very great amount of the Court's time; an amount of time which would be unsustainable in all but the rarest of cases. A number of factors, which we have identified in our reasons, explain why these appeals fell into that very rare category. We will mention five of them. First, the appeal against the judge's refusal to grant a permanent stay, it not being based only upon presumptive prejudice, involved not simply the application of principles to established facts, but (successful) challenge to the facts found. It required a close examination of voluminous material deriving from multiple sources. Second, the appeal with respect to the admissibility of Dr Owen's evidence required consideration of proposed evidence - novel, so far as we are aware, in Victoria - the reception of which was pressed below, but was abandoned on appeal. It was necessary to explain why the concession as to inadmissibility was rightly made. Third, the cross-admissibility of the complainants' evidence was pressed by the prosecutor below on a basis which departed from authority, and the judge resolved cross-admissibility on that basis. It was necessary to illuminate, and correct, that flawed approach. Fourth, the bases upon which the Crown sought to introduce the appellant's pleas of guilty to other charges, and the summary, were varied and their juridical bases were unidentified, as was the basis upon which the trial judge ruled them admissible. Fifth counsel for the appellant, as we have explained, at different times did not give the judge the assistance to which she was entitled. This contributed to the approach which the judge took, for instance, to the reception of evidence on the voir dire, an approach which, we have concluded, was erroneous.

At a glance

Court

Decision date

Source

Judgment (343 paragraphs)

S L S v The Queen [2014] VSCA 31 (6 March 2014)

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Legislation Cited (4)