Criminal law - Video recorded interviews of accused by police - Not relied on by prosecution - Self-serving - Defence precluded from cross-examining to elicit contents of interviews - No miscarriage

Jarvis v The Queen (1993) 20 WAR 201

Norton v The Queen (2001) 24 WAR 488

R v Fowler [2001] WASCA 130; (2001) 121 A Crim R 531

R v Sharp [1988] 1 All ER 65

Woods v The Queen (1994) 14 WAR 341

Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529

1 ANDERSON J: I have had the advantage of reading in draft the reasons for decision to be published by Parker J. I agree with those reasons. There is nothing I wish to add.

2 STEYTLER J: I have read the reasons for decision to be published by Parker J. I agree with them. There is nothing I wish to add.

3 PARKER J: The applicant seeks an extension of time within which to appeal against his convictions on two counts of sexual penetration of a child under the age of 13 years. He was convicted of these two counts after a trial in the District Court in Perth on 15 - 17 November 1999. The trial was held before Nisbet DCJ and a jury.

4 The indictment contained three counts, two of sexual penetration and one of indecent dealing. All three counts concerned the same complainant, C, then a girl under 13 years of age. After amendment to the indictment the offences were alleged to have been committed late in 1997.

5 The indecent assault was alleged to have been committed at the same time and place as the second charge of sexual penetration, but the evidence led from the complainant at the trial did not deal with the alleged indecent assault. As a result, the trial Judge directed the jury to acquit in respect of the count of indecent assault. The jury returned a verdict of not guilty in respect of the count of indecent assault accordingly. No issue concerning that verdict is raised on this application.

6 The applicant was sentenced on 3 February 2000 to terms of 4 years imprisonment in respect of each of the two convictions for sexual penetration of C, with parole eligibility. The terms were ordered to be served concurrently. The applicant had also been separately convicted on other indictments of a count of indecent dealing of the same complainant, two counts of sexual penetration concerning one of her sisters, M (whom the indictment alleged was then a child between the age of 13 and 16 years but by special verdict was found in fact to be a child under the age of 13 years at the time of the offences) and a count of sexual penetration of a third sister, E, who was then a child between the age of 13 and 16 years. The sentencing before Nisbet DCJ on 3 February 2000 was in respect of all of these offences. In all, the applicant was sentenced to an effective total term of 8 years imprisonment in respect of these offences, with parole eligibility.

7 The applicant had been born in Zimbabwe in 1952. He married in 1982. There are two children of the marriage. In 1989 the applicant and

his family migrated to Australia. They have lived in Western Australia since then.

8 Through their church the applicant and his family became very close friends with the family of the complainant and her two sisters. The girls came to regard him as an uncle. By virtue of this family friendship the applicant would often take the complainant and his son to a squash centre. After a game they would have a sauna. It was the evidence that the applicant would arrange for his son to leave the sauna to get drinks and during the absence of the son the applicant would digitally penetrate the complainant's vagina. It was the evidence of the complainant that this occurred each time they visited the squash centre. The first count the subject of this application related to one of those incidents.

9 The second conviction the subject of this application was in respect of the digital penetration of the complainant's vagina at her home. By virtue of the close relationship between the families of the complainant and the applicant the applicant was often a trusted visitor to the home. On the occasion charged he entered the complainant's bedroom one evening when she was in bed and digital penetration followed. Again, it was the evidence that this was a regular occurrence.

10 There was medical evidence that the condition of the complainant's hymen, clitoris and vagina was consistent with chronic penetrative trauma and repeated penetration of the vagina by a finger.

11 The complainant eventually spoke to a young cousin about this conduct and her parents were told. A report was made to the police. Evidence from the parents confirmed that the applicant regularly took the complainant to squash and would often go to the complainant's bedroom "to say goodnight" when he visited their home. They trusted the complainant and suspected nothing even when the father saw him lying on her bed one night with his head next to hers and with an arm under the covers and his hand apparently in the vicinity of her groin. The applicant's explanation at that time was that he was talking to the complainant, helping her with her maths. The father accepted this explanation.

12 No admissions concerning these two offences or the general pattern of sexual misconduct were made to the police by the applicant. At the trial he denied both offences. There was evidence called in defence from the applicant's son which generally exculpated the applicant in respect of misconduct at the squash centre.

13 Two distinct matters are raised by the applicant in support of his appeal, should leave be granted. First, the lack of appropriate directions to ensure that the jury separately considered the evidence relevant to each of the two counts and to warn against allowing proof of guilt upon one count to affect their verdict on the other. Secondly, the refusal of the trial Judge to allow cross-examination of police witnesses as to the contents of an interview with the applicant

14 As to the first of these this was clearly a case where the trials of two distinct offences were being conducted together. The correctness of the joinder of the two of the counts is not questioned, nor is it suggested that separate trials should have been ordered. It is submitted, however, that as two or more trials were taking place together, it is fundamental that the jury must be directed to separately consider each count having regard only to the evidence relevant to that count and that the jury must be clearly warned against regarding a verdict of guilty of one count as relevant to or indicative of guilt of the other.

15 As was said by Brennan J in Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 541 - 542:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not."

16 As was said by Anderson J, Pidgeon and Wallwork JJ concurring, in Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67 at 81 - 82:

"As this was not a similar fact case, and there were multiple counts involving two complainants, there was a requirement to warn the jury not only that proof to their satisfaction of guilt upon one count must not lead them automatically to a guilty verdict on any other count but that the evidence led in proof of an offence against one complainant did not prove an offence against the other complainant.

The choice of words is a matter for the trial judge, of course, but in whatever terms the direction is given, it must instruct the jury not only that they must draw a distinction between the evidence on each count and the evidence on every other count, but that they must not supplement the evidence on any particular count involving one complainant by looking at the evidence about the other complainant."

17 In the present case, of course, each count concerned the same complainant but that does not detract from the need for the consideration of each count to be entirely independent of the other and to be unaffected by a verdict reached in respect of the other account. See also Schlaefer v The Queen (1984) 37 SASR 207 at 210 - 211.

18 In this case the charge of the learned trial Judge to the jury carefully reviewed the evidence relevant to each of the two "live" counts quite separately. The jury were also directed in conventional form as to the elements which the Crown had to prove beyond reasonable doubt to establish each of the two live offences. As there was evidence as to the nature of the relationship between the complainant and the applicant the jury was also directed in a manner to which no objection is taken as to the relevance of that evidence and that, even if accepted, it did not necessarily follow that either or both of the two actual events charged were established beyond reasonable doubt.

19 Absent from the charge, however, is any direction that each of the two counts must be considered separately on the basis only of the evidence relevant to that charge and independently of the evidence relevant to the other. The jury were not directed that a verdict returned in respect of one of the charges need not be the same as the verdict in respect of the other live charge, nor that a guilty verdict on the relevant evidence in respect of one of the charges was not directly relevant in the present case to the guilt of the applicant in respect of the other live charge.

20 I do note that when opening the prosecution case counsel did put to the jury what would have been an adequate direction on this issue. That occurred, however, in the opening stages of the trial. It was merely in the course of an opening by counsel. This was not repeated at the conclusion of the trial by counsel and it was entirely omitted from the Judge's charge to the jury. Hence, the importance of this direction was not brought to the jury's attention at the most critical and appropriate time, or with the authority of the office of the trial Judge. It is the case that neither the defence nor the prosecuting counsel sought any further direction in respect of this issue, but in a case such as this that cannot overcome the absence of a quite fundamental direction.

21 The jury did seek further direction by a question to the trial Judge during their deliberations. They asked whether their decision "on a not guilty verdict per count" must be unanimous. They were correctly directed that their verdict, whether guilty or not guilty, must be unanimous in respect of each of the counts. This question is, however, directed to a quite distinct issue, whether unanimity is required for a not guilty verdict. It does not touch on the need for separate consideration of each count. While the form of the question included the words "per count", which could be understood as indicating that the jury appreciated that different verdicts could be returned on each count, this is but one possible view of what was meant by those words in the question of the jury, and does not provide any clear reason for confidence that the jury appreciated that a guilty verdict on one count was not relevant to the guilt of the applicant on the other.

22 It can be accepted that it was well open to the jury in this case to return a verdict of guilty in respect of each of the two live charges on the evidence relevant respectively to each charge. That does not overcome the danger, however, in the absence of a clear and adequate direction from the trial Judge, that the jury may have failed to consider quite separately the evidence relevant to each of the two charges and may not have clearly understood that their verdicts might properly differ on the two charges, and that a guilty verdict on one count should not lead them automatically to a guilty verdict on the other.

23 In my view, this first ground of appeal is made out. There is clearly a risk that justice has miscarried in the present case.

Ground 2 - Self-serving Out of Court Statements - Admissibility

24 The second ground of appeal concerns the contents of an interview between the investigating police and the applicant on 5 January 1998. The interview was videotaped. The prosecution did not seek to tender this videotape as part of its case or otherwise to prove its contents, save perhaps that there was evidence led that there had been an interview and the applicant had denied the allegations. There was no objection by the applicant to this evidence being led.

25 Counsel for the applicant sought, by way of cross-examination of the police officers who had conducted the interview, to lead specific details of aspects of what the accused had said during the interview with the intention, it seems, of playing parts of the videotape so that the jury could see something of the applicant's manner as he said certain things. It is fair to say that what defence counsel sought to do was to introduce into evidence and to give emphasis to self-serving elements of the interview.

26 Some parts of the total interview could be taken to be against the applicant's interest, so that the whole interview could be regarded as a mixed statement in the sense frequently used in this context. The prevailing overall flavour of the interview was, however, distinctly self-serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the applicant's interest, or "confessional in character", the statement, ie the whole record of the interview, might have been led in evidence by the prosecution; Middleton v The Queen (1998) 19 WAR 179 at 182, 189. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross-examination by the defence; R v Callaghan [1994] 2 Qd R 300 at 303 - 304. This position has been well settled for approaching two centuries; R v Higgins [1828] EngR 201; (1829) 3 C & P 603 at 604[1828] EngR 201; , 172 ER 565 at 565.

27 The submission of the applicant is that the present case should be regarded as different by virtue of the evidence led, in virtually so many words, by the prosecution that the applicant had denied the allegations. This appears to me to be without substance as a point of distinction. Strictly it may be the position that evidence of the denials ought not to have been led, but it was clearly in the applicant's interest for the jury to know that the applicant had denied the allegations and no objection was made to this. This does not constitute in any real sense an attempt by the prosecution to lead evidence of parts of an out of court statement which suited the prosecution, without adducing the whole of the statement including those parts which favoured the applicant. This was in truth the opposite of that situation. No doubt out of a sense of fairness to the applicant the prosecution led evidence that when interviewed the accused had denied the allegations. The trial Judge was not prepared to allow that to provide a springboard for a roaming cross-examination as to what was said during the interview, or to a viewing of those aspects of the video record of the interview which favoured the applicant and were, on any view, self-serving of his interests. I am not persuaded that this ruling of his Honour was in error as a matter of law or involved any unfairness to the applicant. If there has been any defect in this respect it was one which favoured the applicant by allowing the fact of his denial of the allegations against him to be led as part of the prosecution case.

28 For these reasons it is my view that the applicant has demonstrated that by virtue of the first ground, only, justice may have miscarried in this case.

29 The application for leave to appeal is brought after a quite substantial delay and there is really no adequate explanation offered for the delay. As was said by Malcolm CJ in Gavin v The Queen (1992) 6 WAR 195 at 198 - 199:

"It has also been said repeatedly that in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: see Narkle v The Queen (unreported, CCA, WA, Library No 6108, 2 December 1985); Nicolakis v The Queen (unreported, CCA, WA, Library No 7184, 30 June 1998); and Chapman v The Queen (unreported, CCA, WA, FC, Library No 7962, 27 November 1989)."

A similar view was expressed by Kennedy J, Pidgeon and Murray JJ concurring in R v Azaddin (1999) 109 A Crim R 474 at 476 where his Honour said:

"The delay in filing the application in this matter has been gross. Delays of this magnitude require a cogent explanation before the Court will be prepared to extend time. The longer the delay, the more exceptional the circumstances must be shown to have been before an extension will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension should not be granted .... The power to extend time should only be exercised upon facts being established which, in the judgment of the Court, appear positively to call for its exercise. In my opinion, the applicant has failed to establish that there has been any miscarriage of justice and I would accordingly dismiss his application for an extension of time."

30 Given the view that I have formed as to the merit of the first of the two grounds of appeal which have been argued by the applicant, I am persuaded that, despite the long delay, the only proper course in this case is to grant an extension of time within which to seek leave to appeal, to grant leave and to allow the appeal. Given the evidence and the circumstances it is clearly appropriate that a retrial be ordered on both counts. It will be for the Director of Public Prosecutions to determine whether a retrial is warranted, having regard inter alia to the other verdicts and the regrettable strain on the complainant and her family of a retrial.

31 There is one further issue, however, which arises for consideration. As briefly indicated earlier in these reasons the applicant was sentenced to two terms of imprisonment each of four years in respect of these two offences. He was, however, sentenced by Nisbet DCJ at the same time in respect of a number of other distinct offences, each of a sexual nature, involving variously the complainant in these two offences, C, and her sisters M and E. By virtue of the totality principle his Honour reduced the terms of each sentence from what would have been appropriate had the applicant been sentenced for only one offence. His Honour also ordered many of the terms to be served concurrently which, otherwise, would have been appropriately ordered to be served cumulatively.

Sentence 2 was to be served concurrently with sentence 1. Sentence 3 was to be served cumulatively on sentences 1 and 2. Sentences 4 and 5 were to be served concurrently with each other and with sentence 3, but cumulatively on sentences 1 and 2. Sentence 6 was to be served concurrently with sentences 3, 4 and 5, but cumulatively on 1 and 2. The total effective sentence was thus 8 years imprisonment.

33 The allowing of this appeal clearly affects the interrelated sentencing structure which his Honour had properly imposed by virtue of the totality principle. Additional written submissions from the parties have been received from the parties on this issue, at the Court's invitation. The removal of the two sentences for the two offences affected by this decision, ie sentences 1 and 2, still leaves four remaining sentences each of which was in respect of conduct that was very serious in nature. Each of the four offences involved a distinct act of sexual penetration or indecent dealing of a child. Three children were involved, there being two separate acts of penetration of one of them. While the events are related in some respects, the four offences are quite separate and are not properly to be regarded as constituting a single transaction so as to require concurrent sentences; R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 at [9]. Were it not for the totality principle, sentences greater than 4, 3 and 2 years imprisonment, respectively, would have been warranted for the remaining four offences. The totality of the criminality involved in the four remaining offences, while less serious than that which Nisbet DCJ dealt with, in itself, clearly warrants a substantial term of imprisonment.

34 In my view, this is a clear case for the application of the special powers to adjust other sentences where an appeal against conviction of an appellant is allowed; Criminal Code s 693(1)(a).

35 A further consideration should be taken into account. The applicant was also tried before O'Sullivan DCJ and a jury in December 1999 on a further indictment. He was convicted of three further counts of indecent dealing with the sister M. Terms of 2 years imprisonment were imposed in respect of each of these convictions, but O'Sullivan DCJ structured these sentences so that only one term of 2 years was to be served cumulatively on the sentences totalling 8 years imprisonment imposed by Nisbet DCJ. That is, all told, the applicant was to serve sentences effectively totalling 10 years imprisonment, with parole eligibility, in respect of sexual offences involving the three young sisters C, M and E. In particular because of the issue of totality, the sentences imposed by O'Sullivan DCJ are relevant to the application of s 693(1)(a) in this case.

36 Pursuant to s 693(1)(a) I would substitute for the sentences passed in respect of the remaining four offences, sentences of the same terms respectively as ordered by his Honour. I would direct, however, that the sentences of 4 years imprisonment in respect of each of the two offences of sexual penetration of M, sentences 4 and 5 indicated above, and the sentence of 3 years imprisonment in respect of the sexual penetration of E, sentence 6, should be served concurrently with each other, and that the sentence of 2 years imprisonment for the indecent dealing of C, sentence 3, should be served cumulatively on the sentences in respect of counts 4, 5 and 6. The result is an effective total sentence of 6 years imprisonment. I would order parole eligibility in respect of each of these sentences. In addition to these sentences, of course, there remain the three further sentences imposed by O'Sullivan DCJ which have the effect that, in all, an effective term of 8 years imprisonment, with parole eligibility, is to be served by the applicant in respect of his remaining convictions for sexual offences concerning the three sisters C, M and E.