Criminal Law - Jurisdiction, practice and procedure - Juries - Discharge and excusing from attendance - Prejudice to accused - Inadmissible evidence inadvertently elicited.

Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

Judgment Number: [2005] TASSC 110

Appeal allowed, the convictions and the sentence are quashed and a new trial ordered.

1 The appellant appeals against his conviction for sexual intercourse with a young person and two counts of indecent assault. The notice of appeal complains that the learned trial judge erred:

"1 By failing to discharge the jury upon the application of the accused.

2 By declaring the complainant to be an affected child pursuant to Evidence (Children & Special Witnesses) Act 2001 and thereby allowing the complainant to give her evidence to the Court by way of pre-recorded video statement.

3 By allowing the pre-recorded video statement to go to the jury as an exhibit during their deliberations."

2 Counsel for the appellant properly abandoned grounds 2 and 3, but I shall say something about them at the end of these reasons, for they raise questions of general importance.

3 The complainant is the appellant's daughter. She has two younger sisters, and male siblings. The complainant was aged 17 at the time of trial. The indictment alleged that the unlawful sexual intercourse (count 1) occurred at a named country town between 1 January 1995 and 31 December 1997 "in the lounge room". Counts 2 and 3 alleged that two indecent assaults were committed at the same town between 1 January 1995 and 3 June 1998. Count 2 particularised one assault as pulling down the complainant's underpants and pants and lowering his own trousers behind a garden shed. Count 3 alleged the assault consisted of placing the complainant's hand on the accused's penis and forcing her to masturbate him.

4 Apart from the accused's videotaped interview with the police, during which he denied committing any of the crimes, the evidence at the trial was given by the complainant and her mother. By agreement between counsel, the complainant's evidence-in-chief was given by playing to the jury a videotaped interview between the complainant and two police officers. This interview took place on 22 September 2003 when the complainant was aged 16 years. The tape had been edited and parts omitted following discussions between counsel.

5 At the start of the complainant's interview with the police she said that her earliest memory of her father "having done something" was when she was about 5 years old. She said she was in her bedroom playing dolls with her cousin. She said that the appellant came in and touched her all over under her clothes. She said that when he stopped she and her cousin went out to find her mother, and her cousin told her mother and the complainant's "nan" about what had just happened. That evidence did not relate to any of the three counts. Next, the complainant gave an account of one afternoon, going into the lounge room of the house where the family lived to get a skipping rope. She said her mother was outside mowing the lawns. She said that the appellant grabbed her arm, put her on the couch, took off her clothes and had vaginal sexual intercourse with her. She said that the appellant promised her a horse if she did what he wanted her to do. She said that the mower stopped, the appellant desisted and she went outside. The complainant told police, and thus the jury, that her mother called the appellant outside and said to him, "I know what's going on you cunt, leave her". The complainant said that she told her mother what had happened. That evidence was probative of the issues raised by count 1.

6 With respect to count 2, the complainant said that she was kicking a football with some other children. She said the ball was kicked over a fence near a shed and she went to get it. She said that the appellant came out of the shed, pulled her trousers down and then lowered his own pants. At that stage one of the other children popped his head over the fence and the appellant pulled his trousers up and the incident proceeded no further.

7 In the interview, the complainant said that amongst other things the appellant made her "pull his penis". She described how the appellant put her hand on his erect penis and made her rub it. A reasonable inference to be drawn from her answers was that this happened on a number of occasions, but as the questioning by police progressed, the complainant appeared to refer not to a number of these acts, but to a single such event which stopped when "he heard the back door go". This evidence was probative of the crime charged by count 3.

8 In addition to the foregoing, the complainant told police, and hence the jury, that on a number of unspecified occasions at unspecified places and times, until she was about 11 years old, the appellant:

9 After the complainant had described the appellant having sexual intercourse with her while her mother mowed the lawn, there followed this passage in the interview with police:

"Q Ok. So the first time that were at [the named country town] [sic].

Q Nearly every day? Ok. Can you remember any other times that, in particular where it happened?

10 She then recounted the events that occurred after the football was kicked over the fence.

11 However, later in her interview there occurred these questions and answers:

"Q How many times would you say we're talking that he actually had sex with you? Are we talking only like, a few, two or three or are we talking twenty?

Q Was there ever anything else that he would do, we've gone through the fact that he would um, rub you on the breasts, um, and obviously have sex with you.

Q And I think you mentioned before as well in relation to him rubbing your vagina, is that right?

Q Ok. Um, now when you say that it would happen nearly every day, is that just a variety, various -

12 The complainant said to police and in cross-examination that the appellant stopped touching her when she was 11. She also said that she told her mother about what had happened on several occasions. She said that during the weekend prior to the interview (September 2003), she spoke to her mother about the appellant's conduct when she and her mother had gone up the hill on their property to see if there were any dead sheep.

13 The complainant was cross-examined. She agreed that when she spoke to her mother on the several occasions before the appellant stopped touching her when she was 11, she only said to her that her father was being mean to her. However, she did affirm that she told her mother after the events concerning count 1 that her vagina was sore.

14 Counsel for the appellant put to the complainant that her father had never touched her in a sexual way at all, but the complainant maintained that he had.

15 The complainant's mother gave detailed evidence of an event that occurred early in 1974 when the family was living in another country town. She said that she left the home one morning to go to the shop, but found she had forgotten her wallet. When she left the house, the complainant and the appellant were in the lounge room watching TV. She returned to the house and looked in the kitchen window. She saw the complainant lying back in a chair with her bare legs in the air and the appellant standing between them with his trousers down and his penis erect. She rushed in the house and punched him in the chest and verbally abused him. These events were not the subject of a charge and were not adverted to by the complainant.

16 The only other evidence given by the complainant's mother was that on 13 September 2003 she and the complainant were walking up the hill on their property looking for sheep. At that stage, the learned trial judge intervened and said:

"HIS HONOUR: Is this objected to? I don't know, I'm just anticipating that you'll keep leading some form of evidence. If you're both confident of what's occurred then I'll stay out of it.

MS JAGO: Yes, I'm not taking an objection your Honour."

17 The complainant's mother then said that the complainant told her that the appellant had played with her breasts when she was told to go and make a cup of coffee and that he got on top of her and "goes up and down" inside her. The complainant's mother said that the complainant told her that "the last thing he done was in the kitchen and there was an incident in the bedroom during the night." The complainant's mother told the jury that the complainant had made no complaint to her about sexual impropriety before that day in 2003. The following passage records the end of the cross-examination:

"All right. Do you remember telling the police that what [the complainant] had in fact told you was that the last incident happened only about a month before the September 2003 conversation ... Yes.

All right. And is that how you remember it, that [the complainant] was claiming to you that her father was doing inappropriate things to her up until a month before this conversation she had with you? ... Yes.

Yes. Right. No suggestion that it had stopped some five years earlier, [the complainant] didn't make that suggestion to you? ... I could say something to that question but I'm not allowed to answer -

[The complainant] did not ever suggest to you it had stopped some five years earlier? ... No, he moved down the chain.

18 Counsel for the appellant sought an order discharging the jury upon the grounds that the only reasonable interpretation of the last answer was that the appellant had sexually assaulted the complainant's younger sister or sisters. She submitted that the prejudice created by that answer was exacerbated because several times during the course of the cross-examination, the complainant's mother had said, "I can't say that here", or words to the like effect, implying that there had been other impropriety. His Honour ruled in the following terms:

"No, I won't discharge the jury. I was conscious of the answer and in part it was responsive to the cross examination, and in a case where counsel is aware of other charges which have been separated from this trial, sometimes they need to be extremely cautious not to provoke a witness. That's not to say that the cross examination was in any way inappropriate, but the response was simply a product of cross examination. I don't believe that it loomed large in the totality of the evidence. Whether we draw attention of the jury to that matter in order to tell them that it's not ambiguous and so meaningless that it has no work to do and is to be disregarded or whether we leave it be, I'll revisit, either before or after the closing addresses of counsel to the jury. And in part, I'll be guided by you Ms Jago. The difficulty is you draw attention to it and it highlights it and then you tell them to forget it. If you don't draw their attention to it you worry about it being a simmering thought. I'll think that through. I'll need to look precisely about the last question and answer before deciding that but I'll be partly guided by you."

19 Neither counsel submitted that the learned trial judge should refer to the impugned non-responsive answer of the witness in his summing up as that would only draw attention to it and there was nothing that could be said to correct whatever prejudice had been caused. Accordingly, the learned trial judge made no reference to the inadmissible material in his summing up.

20 The submission on behalf of the appellant was that the answer given by the complainant's mother was not responsive to the question, was evidence of prior bad conduct not the subject of a charge, and therefore inadmissible. Quite rightly, there was no submission to the contrary from counsel for the respondent. The appellant's counsel submitted that the prejudice was so great that the learned trial judge should have discharged the jury.

21 In Crofts v R [1996] HCA 22; (1996) 186 CLR 427, the majority said in their judgment at 440, that the Court of Criminal Appeal was right when it described the test for the discharge of the jury as one of necessity in these terms:

"The question is whether in the circumstances ... there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury?... ".

"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. 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? Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521."

22 This principle was applied in R v Brown [2004] VSCA 59 and Winning v R [2003] WASCA 245.

23 As counsel for the respondent correctly submitted, before the jury could have been satisfied beyond reasonable doubt of the guilt of the accused, they must have been equally so satisfied that the complainant was a truthful and, in substance, accurate witness. He submitted that the impugned unresponsive answer by the complainant's mother would have had little impact on the jury's assessment of the evidence of the complainant, especially as its strength was hardly weakened in cross-examination and the mother's evidence was contradictory of the complainant's in a number of respects.

24 Although not a ground of appeal, the admissibility of the whole of the evidence given by the complainant's mother is questionable. Her evidence of seeing the appellant in early 1994 in, or about to be in, sexual congress with the complainant, then aged 6 years, is also evidence of prior bad conduct not the subject of a charge. There is nothing in the transcript to indicate the basis upon which this evidence was admitted. The complainant gave no evidence of such an event. It did not seem to be admissible to show, for example, why the complainant acted as she did, or why no complaint was made. See Toki v R [2000] NSWSC 999; (2000) 116 A Crim R 536 at 540 - 541 and R v Atroushi [2001] NSWCA 406. I doubt whether this evidence would have satisfied the stringent "probative value test" prescribed by the Evidence Act 2001 s101(2), but none of this was explored at trial.

25 Further, the evidence of the complainant's mother about what the complainant said to her in September 2003 seems to me to have been plainly inadmissible, although this too, is not put in issue on the appeal by any ground. At the latest, the last criminal act charged was alleged to have occurred in 1998. The hearsay evidence of the complainant's mother about what the complainant said to her in 2003 could not, on any view, be admissible. On the hearing of the appeal, counsel for the respondent told the Court that it was not objected to by counsel for the appellant (that is apparent from the transcript) but that does not make inadmissible evidence in a criminal trial admissible. In his directions to the jury, the learned trial judge gave the jury a direction with respect to recent complaint evidence going only to the credit of the complainant but, complaint about what, is not apparent from the directions given.

26 At the end of the summing up, counsel for the Crown asked his Honour if he wanted to give a direction in relation to the dangers of propensity reasoning, so I infer that he thought that the evidence by the complainant's mother of what she saw in February 1994 was evidence that tended to prove the commission of one or more of the crimes charged and was admissible because the probative value of that evidence substantially outweighed its prejudicial value. If my inference is correct, I observe that it is debateable whether this was so, even if the "balancing exercise" expounded by McHugh J in R v Pfennig [1995] HCA 7; (1995) 182 CLR 461 is preferred to the "no other reasonable explanation" test adopted by the majority in that case. See R v Ellis [2003] NSWCCA 319; (2003) 144 A Crim R 1.

27 With respect to the evidence given by the mother of what she saw in February 1994, the learned trial judge gave the following unsatisfactory direction:

"HIS HONOUR: All right. Thank you. I'd overlooked that. The evidence of the mother claiming that she'd seen this event isn't a charged event, not one of the ones in the indictment. It's led by the Crown or by the State as, I guess, supportive of the daughter's account that the relationship with the father was not a healthy one. It showed that he had a tendency to sexually importune on his child or that he had a sexual interest in his child and would use the child for his sexual gratification. That's how they lead it. So it's there as supportive. It shows an unhealthy act of misconduct and from that you might readily believe her account that there were acts of sexual impropriety as alleged. That's how you're permitted to use the evidence. What you don't do is what's called propensity reasoning and propensity reasoning can work one of two ways. He's on three charges. Well, if there are three charges he's got to be guilty of one of them, so if he's guilty of that one, he's got to be guilty of the other two, so, I'm not sure which one he's guilty of but there's got to be one of them, therefore that's - I find count 1 - therefore because he committed count 1, I find him guilty of count 2 and 3. All you've done is gone round in a circle. If there are three, got to be one of them, I'm satisfied there was one. If there's one, there's got to be the second and the third. If there's the second and the third, he must have done the first one. In other words, circular reasoning is really dangerous, and the reason for that is you can take someone who's on six burgs and steals when they get here and you say, well there's six, he's got to have done - why would he be here for six, so he's done of them. If he's done that one, he's got to be on the other five, is dangerous. The second thing that you don't do - I shouldn't say don't do - you - having said you're judges, and you are, you can use impermissible reasoning but it would not be in accordance with law, so I'm not telling you what to do. I'm not telling you how to think but I'm telling you how the law permits us and tells us the dangers. You don't say, because the mother says this, therefore it happened, if it happened therefore the other events must have happened, because all you've done is taken an uncharged act and used that to prove charged acts. What you do is - what you ought to do - or what you should do or what you might be more comfortable with is to say, what's the primary evidence that I have. Well the primary evidence that I have is the account of the girl. Now what do I make of that? Well, it's got these strengths and it's got these weaknesses and it makes sense here but not here - in other words you begin to assess it. What other evidence do I have on that. Well I've got his account or his answers to police which might be, I might not have too much confidence in, or I might, so I add that to my assessment now of the events charged. Have I got any support for that? Well, I've got mum who says something was said in September 2003, the complaint, but I haven't got mum saying that there was a complaint made at [the first named country town] at the house, so there I've got some evidence that it's both ways in a way, and I've got this evidence that mum said she saw back in [the other town]. Well, do I add that to the other? Does it make - well, could there be an innocent touching? Well, at least if I accept that mum's account's right then I've got non-innocent touching, so instead of starting with the mother's account and believing it and then saying, therefore all the other things flow, I suggest you leave it to the other end. The primary evidence, the supportive evidence, the complaint evidence and now I add to that what is said by the mother to have occurred. Now you don't go anywhere until you're satisfied beyond reasonable doubt that the account given by the mother's true or is accurate. You've got to look at that and say, do I accept that that happened? If I don't accept that it happened, you discard it. If I accept that it happened, then you might add it to the other evidence, the primary evidence, to see if you can make sense of it all. What you don't do is simply either chock reasoning - that happened therefore that must have happened - or because it happened I will now assume that the other events occurred. My suggestion is you turn it back and leave it till your consideration of primary evidence. That's what courts warn about propensity reasoning. We simply say, oh well, there's enough there to convict. We'll just do it. That's really unsafe to simply do it in such a simplistic way. Meets your approach?"

28 Nothing was said about what might or might not make the mother's account particularly probative of the issues raised by one or more of the crimes charged.

29 These observations apply with equal force to those parts of the complainant's interview with the police which was played to the jury in which she spoke in a general way of unlawful sexual conduct by the appellant, not the subject of a charge, and which are set out in par8.

30 There is no doubt that the impugned unresponsive answer was prejudicial to the appellant's fair trial, and there is no doubt that there was nothing that could have been said in the summing up to minimise that prejudice. The Crown case was not a strong one and there were, as I have noted, contradictions between the complainant's evidence and that given by her mother. The conduct of the cross-examination by counsel for the appellant did not contribute to the elicitation of the unresponsive answer. The confusing direction concerning propensity reasoning may well have heightened the impact of the answer. The fact that the answer was an addition to other, what appears to me to have been inadmissible evidence, could have also heightened its impact in the mind of the jury. Accordingly, although the discretion exercised by the trial judge deserves respect, I cannot "say with assurance that, but for the admission of the inadmissible evidence, the convictions were inevitable." I would allow the appeal, quash the convictions and the sentence and order a new trial.

Evidence (Child and Special Witnesses) Act 2001

31 This Act is principally designed to facilitate the giving of evidence by children in cases involving sexual crimes. The Act defines a child as a person who is under the age of 17 years and an affected child as (inter alia) a child upon whom, or in respect of whom, a sexual crime (as defined) has been committed. The Act, s5(1), provides:

"(1) In a prescribed proceeding, the judge may admit into evidence a statement made by an affected child and recorded by any means if -

(a) the statement relates to a matter in issue in the proceeding; and

(b) the defendant has been given a copy of the record of the statement; and

(c) the defendant is given the opportunity to cross-examine the affected child."

32 At the appellant's trial, the evidence of the complainant was admitted pursuant to the power conferred by that subsection. Although the complainant was a child within the meaning of the Act at the time she was interviewed, she was no longer a child when she gave her evidence. At the conclusion of all the evidence the learned trial judge raised with counsel the possibility that the videotaped interview between the police and the complainant should not have been admitted into evidence because s5 only authorised the giving of evidence by way of prior videotaped interview if the complainant was a child at the time of giving evidence. As he rightly observed, by the time the matter was raised by him, the evidence had been admitted and if that was unauthorised by the Act, it was a matter for this Court. As a result of his Honour's observations, grounds 2 and 3 were included in the notice of appeal. At the commencement of the appeal, counsel for the appellant conceded that neither ground could result in the quashing of the convictions because of the provisions of the Criminal Code, s402(2), which provides:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

33 After some consideration, counsel properly abandoned those two grounds of the appeal because even if both were made out, they would not affect the issue for determination, viz, should the convictions be quashed and a new trial ordered.

34 Other Australian jurisdictions have legislation similar to the Evidence (Child and Special Witnesses) Act 2001, permitting the admission of hearsay evidence by an affected child. The Evidence Act 1906 (WA), s106H, permits a hearsay statement by an affected child to be admitted into evidence "at the discretion of the judge". Section 106A defines a child to be a boy or girl under the age of 18 years. With respect to the Western Australian provision and the Tasmanian provision, little distinction can be drawn. It might be said of both, that provided the statement was made by an affected child, viz, when he or she was less than the prescribed age, that statement is admissible, subject to the discretion of the trial judge. However, such an interpretation does not, to my mind, sit too comfortably with the purpose of the Act as I discern it, namely to facilitate the giving of evidence by children.

35 The position is made clear by the Evidence Act 1977 (Qld), s93A(1), which makes admissible "any statement contained in a document ... if the maker of the statement was a child ... at the time of making the statement ...". On the other hand, the terms of the Evidence (Children) Act 1997 (NSW), s9, are such that it is clear that the witness must be a child at the time of giving evidence before a previous statement by that child is admissible in evidence. The Evidence Act (NT), s21B, is to the same effect as the New South Wales legislation.

36 Although these matters are no longer in issue on this appeal, I draw attention to them in case the legislature may wish to clarify the Tasmanian provision, for the issue is bound to arise in future cases.

37 I agree with the orders proposed by the learned Chief Justice. I agree in substance with his Honour's reasons. It may be that the comment that the appellant "moved down the chain" meant nothing to any of the jurors, and that it therefore had no impact. However, their attention is likely to have been drawn to that comment by the complainant's mother's suggestion to the effect that there was something that she was not allowed to say. It is therefore possible that the jury took her to mean that the appellant had moved on to sexually abuse one or more younger members of the family. The jury may still have given the mother's comment little or no weight. But, on the other hand, they may have used that comment as the basis for an inference that the appellant was likely to have committed crimes of the types charged, and then given substantial weight to that conclusion. I think it follows that, once the mother had made the comment in question, the trial had become incurably unfair, and the only appropriate course was to discharge the jury.

38 I have had the benefit of reading the detailed reasons of the learned Chief Justice in which he has clearly set out the facts and the applicable law. I do not propose to repeat that material.

39 The only ground of appeal ultimately pursued was that relating to the failure of the learned trial judge to discharge the jury. The comment most particularly complained of which was made by the complainant's mother, that is that the appellant "... moved down the chain" may have had no meaning for the jury. However, it must be looked at in the light of the evidence to that point against the appellant and the context of the exchange between the witness and counsel which preceded it. It clearly had the potential, were the jury so minded, to produce a conclusion in their minds about other activities of the appellant

40 It cannot be said that the statement could not have affected the jury's decision and as a consequence the jury should have been discharged.

41 I agree with the orders proposed by the learned Chief Justice.