Skinner (a Pseudonym) v The Queen [2015] VSCA 26

1 On 17 May 2013, the appellant was convicted, after a trial in the County Court, of eight counts of indecent assault and one count of sexual penetration of a child under 10 ('the 17 May offences'). On 17 July 2013, he was sentenced to a total effective sentence of 6 years and 5 months' imprisonment on those charges. Four years of this sentence was ordered to be served cumulatively upon a sentence of 6 years and 4 months' imprisonment imposed on the same day in respect of four other charges of indecent assault. Thus the appellant was sentenced to a total effective sentence of 10 years and 4 months' imprisonment. A non-parole period of 6 years was fixed by the sentencing judge.

2 The 17 May offences were committed against four complainants, LC, MC, SW and IF. All of the complainants were young girls at the time of the appellant's offending.

3 Following the appellant's convictions in respect of the 17 May offences, the appellant sought leave to appeal those convictions on the following grounds:

1. A substantial miscarriage of justice resulted from the prosecutor, in cross-examination of the applicant:

1. repeatedly putting to the applicant that he was saying that the complainants were lying; 2. exploring at length the unlikelihood of the applicant's former wife being behind the allegations against him;

1. asking the applicant to explain his failure to challenge LC's application for Crimes Compensation and his failure to report IF's demand for money to police.
2. The learned trial judge erred in directing the jury that they could use the applicant's evidence of his belief that his former wife had set out to ruin him in assessing his credit.
3. The learned trial judge erred in failing to direct the jury that they should not use evidence of the applicant's response to LC's Crimes Compensation claim and IF's demand for money as evidence of consciousness of guilt.
4. The learned trial judge erred in directing the jury in relation to tendency evidence that the similarity in the allegations made by LC, MC and SW could be used to support the conclusion that it was improbable they would have made the allegations if they were untrue.
5. The learned trial judge erred in failing to direct the jury about the significance for the credit of LC that she had made a false statement and the significance for the credit of IF that she had demanded money from the applicant.

4 On 27 August 2014, Whelan JA granted leave in respect of grounds 1(a), 1(c), 3 and 4. The appellant was refused leave to appeal on grounds 1(b), 2 and 5. However, pursuant to s 315(2) of the Criminal Procedure Act 2009, the appellant elected to renew his application for leave to appeal to this Court in respect of the refused grounds.

5 At the hearing of the appeal before this Court, the appellant advanced argument in respect of the grounds for which he had been given leave and the grounds which he sought to renew. Following the appellant's submissions, senior counsel for the Crown frankly, and with conspicuous fairness, conceded that the trial below was a 'difficult trial to defend'. As senior counsel for the Crown put it, 'Quite frankly it [the trial] was a mess'. The concessions of senior counsel for the Crown were properly made and conformed to the highest and best standards of prosecuting counsel.

6 In conformity with these concessions, we made orders allowing the appeal, quashing the convictions for the 17 May offences and setting aside the sentences imposed in respect of them, and we ordered a new trial in respect of the charges constituting the 17 May offences. Further, we invited submissions from the appellant and the Crown about the need to now fix a new non-parole period in respect of the total effective sentence imposed upon the appellant in respect of the convictions which were not the subject of this appeal. Additionally, we stated that we would provide reasons for the orders we made on the day of hearing and fix a new non-parole period, once we received the parties' submissions about a new non-parole period.

7 There were a number of defects in the conduct of the appellant's trial, the most significant of which relate to the way in which the appellant was cross-examined by the prosecutor at trial.[2] Early in the cross-examination of the appellant, the prosecutor put a series of questions to the appellant that invited the appellant to agree that the complainants' sexual allegations against him were lies. There was a constant repetition, in the prosecutor's questions, of the proposition that the appellant claimed (or agreed) that the complainants were lying in their accounts. The prosecutor then asked the appellant whether he said that MC and LC knew SW and IF. This question, in context, sought to explore with the appellant reasons why SW and IF might be telling lies.

8 Since the High Court's decision in Palmer v The Queen,[3] cross-examination of an accused to the effect that the accused cannot suggest any reason why a complainant might be lying has been impermissible. The fact that an accused cannot suggest a motive for a complainant to lie adds no legitimate credibility to that complainant's evidence. This has been repeated in authorities in this Court on numerous occasions.[4]

9 In R v Davis,[5] Buchanan JA[6] said:

In my opinion it is one thing for the accused in his evidence to make an allegation that Crown witnesses are lying; it is another for counsel to suggest to the jury that the Crown case has been fabricated. If the accused himself opens the question, he can be cross-examined on the topic, as he can on any other matter as to which he gives evidence. On the other hand, if the accused does not allege the Crown witnesses are lying, the impugned cross-examination may well deflect the jury from an appropriate assessment of his credibility and that of the Crown witnesses. The question whether the Crown witnesses are lying is to be determined by the jury. The opinion of the accused is irrelevant. The cross-examination is apt to create an immaterial conflict between an accused on the one hand and the Crown witnesses on the other, which has the danger of side-tracking the jury from their task of assessing the evidence. Further, the cross-examination is tantamount to bullying. The accused is challenged to brand witnesses as liars. The cross-examiner seeks to trade upon a natural reluctance to defame others in the absence of certain knowledge.[7]

10 At trial, the accused gave his evidence-in-chief without branding any of the complainants liars. However, it was plain from some answers in his record of interview (which answers had been edited out of the record of interview, and thus were not before the jury) that the accused was quite prepared from time to time to say that one or some or all of the complainants were lying. Nevertheless, as to the general proposition that all the complainants were lying in their allegations of sexual misconduct against the accused, it is clear that so far as the trial was concerned, this was a matter first raised by the prosecutor in his cross-examination of the accused.

11 The cross-examination was extensive and went on for many pages. The prosecutor revisited the issue of the accused's opinion that the complainants were telling lies on several occasions, and in some detail. Surprisingly, trial counsel for the accused[8] took no objection. Almost as surprising as the failure of the accused's counsel to take objection, is the fact that at no time did the judge seek to stop the cross-examination, or to raise with counsel, in the absence of the jury, the permissibility or appropriateness of the prosecutor's approach. The failure of the accused's counsel to object, and the failure of the judge to take any step to intervene, are matters of considerable concern. On its face, the cross-examination was egregious, and we are persuaded that it led to a substantial miscarriage of justice. It was for this principal reason that we allowed the appeal on the day the appeal was argued.

12 There were other errors in the conduct of this trial that contributed to the substantial miscarriage of justice. However, it is only necessary to refer to them briefly.

13 There was cross-examination of the accused about why he did not take some step to intervene in LC's application for crimes compensation. It was put that he should have in some way intervened, and opposed the application by LC for crimes compensation, 'so as to protect his reputation'. This cross-examination proceeded upon the basis that the appellant had some right (and perhaps also a duty) to intervene in LC's application. However, at trial, there was no exploration of what, if any, entitlement the accused might have had to intervene in a proceeding to which he was not a party. The cross-examination about LC's application for crimes compensation was highly problematic. As presently advised, we think it was impermissible. However, as it was not the subject of any detailed consideration before the judge, nor the subject of sufficiently detailed argument before us, we do not propose to say anything further about it at this stage.

14 There were a number of errors made by the judge in her charge. First, the judge, in dealing with tendency evidence in relation to LC, MC and SW, gave a coincidence evidence direction. This could only have confused the jury. While neither counsel took exception to this direction at trial, and while this matter alone would not have constituted a substantial miscarriage of justice, the importance of differentiating between tendency and coincidence evidence and giving the appropriate direction in each case must be emphasised.[9]

15 Secondly, in evidence, LC admitted that in parts of her police statements she had 'elaborated the truth' or 'extended the truth beyond what the reality was' or lied. However, in that part of her charge which dealt with the evidence of LC, these admitted lies were reduced by the judge to inconsistencies that might be explained away - perhaps on the basis of LC's claim to having a better memory at trial than at the time LC made her first police statement. Again, while no exception was taken to this part of the charge, and while on its own it may not have amounted to a substantial miscarriage of justice, this was another error in the trial which well justified senior counsel for the Crown who appeared before us in conceding that this trial had been a 'mess'.

16 Thirdly, the judge directed the jury that if they rejected the appellant's evidence about why the complainants might be lying (a matter about which, we interpolate, the appellant could only have been expressing an irrelevant opinion) then the jury could 'use [that] assessment of [the] evidence which he gave to assist [the jury] in assessing [the appellant's] overall credibility'. That direction was plainly wrong. However, again, no objection was taken at trial. That said, when this wrong direction is coupled with the impermissible cross-examination about which the direction was given, the answer to the question of whether there was a substantial miscarriage of justice becomes even more certain.

17 While there were other errors in the trial, some of which we have identified, fundamentally it was because of the trial prosecutor's cross-examination of the accused that we concluded that there was a substantial miscarriage of justice.

18 In addition to the matters already identified, we should make one further point. There were parts of the cross-examination to which we have not made reference which were also unsatisfactory. In a cross-examination that appears at times to have been hectoring (if not bordering on bullying) a number of irrelevant questions were asked. Again, little (if any) objection was taken to them by the appellant's trial counsel. In the event that the appellant gives evidence and is cross-examined in the course of the retrial we have ordered, attention needs to be given to the permissible limits of cross-examination of an accused person.[10]

19 Because we have set aside the appellant's convictions for the 17 May offences, it is necessary for us to now fix a non-parole period in respect of the offences for which the appellant has been sentenced to a term of imprisonment of six years and four months. The appellant has now filed an affidavit updating his current circumstances in custody. In addition, both parties have filed submissions about the fixing by this Court of an appropriate non-parole period. Having regard to the affidavit filed by the appellant and the additional submissions of the parties, we are of the view that we should fix a non-parole period of four years.

[1] To ensure that there is no possibility of identification of the victim(s) of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] Not counsel who appeared for the Crown on this appeal.

[3] [1998] HCA 2; (1998) 193 CLR 1.

[4] See for example, R v Bajic [2005] VSCA 158; (2005) 12 VR 155.

[5] [2007] VSCA 276.

[6] With whom Coldrey and Curtain AJJA agreed.

[7] R v Davis [2007] VSCA 276, [22] (emphasis added).

[8] Not counsel who appeared in this Court.

[9] See generally KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226, 228 [3]; and Murdoch v The Queen [2013] VSCA 272, [81].

[10] See generally, Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, and the numerous authorities in this Court that have since followed that decision; and Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.