Steadman v R

Court of Criminal Appeal (NSW)|2012-11-19|Before: Macfarlan JA, Hall J, Campbell J, MacFarlan JA

Judgment 1MACFARLAN JA: After a trial in the District Court before a judge and jury, the appellant was convicted of indecently assaulting a daughter of his in July 1974, the complainant then being 13 years of age (s 76 Crimes Act 1900). The appellant appeals against his conviction upon the grounds identified below.

THE COMPLAINANT'S EVIDENCE AT THE TRIAL 2The complainant gave evidence at the trial as follows. 3In 1974, the complainant lived with her parents and two siblings in the Australian Capital Territory. When her grandmother, who lived in Sydney, died in July 1974, the family came to Sydney for the funeral, staying overnight in her grandparents' house. All five of them slept in sleeping bags in the loungeroom. The complainant did not want to sleep near her father and attempted, unsuccessfully, to avoid doing so. 4In chief, the complainant gave the following evidence about waking up during the night: "Q. What did you notice when you woke up? A. I woke up because Ivan had his hand out and my shirt was undone and he had his hand on my right breast and that's what woke me up. I could feel someone touching me. Q. What did you see when you woke? A. I pretended I was still asleep and just sort of looked through my eyelashes to figure out where he was and what he was doing so I could best figure out a plan to get out of it I guess. And I saw that he was lying on his back with his hand out on me and just staring at the ceiling. Q. So who was staring at the ceiling? A. Ivan. Q. Which way were you looking? A. At that point I was on my back and I was just looking at him trying to pretend I was still asleep. Q. You were talking about - you just mentioned your clothing. Perhaps we could - what were you wearing on your top? A. I was wearing pyjamas with buttons and my top button was undone and he had his hand on me. Q. Had you left that top button undone when you'd gone to sleep? A. No, I had not. Q. All right, so you know how that top button came undone? A. I do not. Q. But you didn't do it? A. I didn't do it. Q. How long was his hand on your right breast? A. I don't know how long before I woke up, but as soon as I saw what he was doing I just rolled over and turned on my left side with my back to him and pretended I was asleep so that I moved his hand from me. And-- Q. What was his hand doing during that period in time while you were awake? A. It was just lying on my breast. He had his hand - left hand outstretched and he was holding me. Q. Holding your breast? A. Yes. Q. So you've turned over. Which way did you turn? A. I turned to my left so that his hand slid off me. Q. Did you say anything to him? A. No, no, I did not" (Transcript pp 47 - 48). 5The complainant said that she went back to sleep after the incident and did not tell anybody the following morning about what had happened. She then gave the following further evidence in chief, the admissibility of which is in issue on the appeal: "Q. Now you were telling us that you were trying to avoid Ivan when you'd been putting your sleeping bags down. Why was that? A. Because Ivan had a habit of touching me and he would walk in on me in the shower, even when the door was locked. He used to use a phrase, 'He wants to see how little girls grow up'. So he would unlock the bathroom door with a knife and walk in. And just laugh at me if I said, 'Get out'. Q. And what was your age when he was doing that? A. He was still looking at me and touching me up until I was 17 years old or 18 years old. Q. All right, but how old were you when he was starting? Do you remember him first doing these things? A. The earliest I remember him first doing things to me is when we first moved to the ACT, I remember one time when he pulled me onto his lap and I sat on his knee, but he pulled me in closer and moved me around so that-- Q. Yes I just wanted to take you perhaps back to the time of the bathroom. You are talking about having showers. Now when - how old are you at that time? A. Dates are really hard for me, but I can remember him doing it; particularly I remember a time in a house that was a little bit after that, and I remember times that he was really inappropriate with me before that as well. Q. All right, well let's just deal with both of those. A time before that you remember? A time before this passing away of your grandmother? A. I was alone in the house with Ivan and it was never a very good situation and I was in the laundry one day and he called me, and he had a tone of voice which is really frightening because he was up to something. And he called me and he was standing in the hallway outside my bedroom, and he said, 'Take your clothes off', and I said, 'No'. And he kept saying, 'Take your clothes off, I want to see how girls grow up', and I was crying and very upset and he kept saying, 'Take your clothes off'. And I knew it was wrong, and I took my clothes off after a long time it seemed, and I was trying to cover myself and he told me to take my arms away and he made me stand naked in the hall, and he was looking at me. And I walked away into my bedroom and he followed me and he said, 'It's not sexual. If it was sexual I'd have an erection. Do you know what that means?' I said, 'No'. So he undid his fly, or took his pants down and he took his penis out and he held it in his hand and he said, 'if it was sexual I'd have an erection, do you know what that means?' I was crying and I was really upset. I don't remember him leaving the room. I remember mum coming home later and I was really upset and she was asking me what was wrong and I wouldn't tell her. Q. And do you remember a time after the time when your grandmother passed away? A. I remember he used to walk into the bathroom and it was a fairly new house and the shower was glass, so I had nowhere to hide. He'd walk in-- [ACCUSED'S COUNSEL]: Your Honour I object to this" (Transcript pp 49 - 50). 6It transpired that the Crown Prosecutor's last question arose out of a misunderstanding on his part that the subject-matter with which the question dealt had been ruled admissible by the trial judge. The trial judge rejected the appellant's application, based upon the answer given to that question, for the jury to be discharged. The complainant then gave the following further evidence-in-chief: Q. You were telling us, madam, about events that were occurring in the bathroom at different times. Can I just ask you were there other events, such as you've been describing, not occurring in the bathroom? And I just want to direct you to before the funeral that you've described? A. Specifically I am - it's so difficult with dates. There was the time in the hallway. He would always - he would always be inappropriate. And that he would kiss me with an open mouth. He would prevent my girlfriends from getting-- Q. Yes, but kiss you with an open mouth, but for example where and when? In what sort of circumstances? A. He took any opportunity. There was a time - because you restrict me to a day it's kind of a bit difficulty I know where we were living and-- Q. Where were you living? A. At the time we were living in the ACT, so there were - I just felt so uncomfortable with him. If I'd have a nightmare, or I was a hit by a car once, he would come and try to get into bed with me. Maybe to comfort me, but it was never very comfortable. But the dates were all in that house, but the dates are difficult" (Transcript p 54). 7In cross-examination, the appellant's counsel put to the complainant, and she accepted, that her father was a dominant and aggressive father and extremely controlling. She rejected suggestions that she and her family did not stay overnight in Sydney at the time of her grandmother's funeral and that her father did not ever behave inappropriately. In explaining why she did not for many years complain to her mother about her father's conduct, she said that there was "a culture of silence in the house" and in re-examination on that topic she said that "I didn't feel ever that there was protection for me, he was just there and there wasn't much we could do" (Transcript p 66).

OTHER EVIDENCE AT THE TRIAL 8The only other witnesses at the trial were a police officer, who gave formal evidence, and the appellant, who gave evidence denying that the night was spent in Sydney and denying any inappropriate conduct towards the complainant.

GROUND OF APPEAL ONE: WHETHER THE CONTEXT EVIDENCE WAS ADMISSIBLE 9The evidence to which this ground of appeal refers is that set out in paragraphs [5] and [6] above. In large measure the admissibility of the evidence was determined by the trial judge in a judgment of 22 February 2011, given, prior to the commencement of the trial, by reference to statements outlining the evidence anticipated to be given by the complainant at the trial. Relevant parts of her Honour's reasoning were as follows: "I am of the view that if the jury hear only the allegation that at a family funeral while the accused and his daughter, the complainant, were sleeping in sleeping bags in the lounge room with, it appears, other people, that he touched her on the breast out of the blue without any prior lead up, it could seem to the jury odd, strange, unrealistic and perhaps lacking in credibility. Whereas if the acts of previous behaviour are put into evidence so as to provide a context, that they do provide a context both to explain that act as coming after a series of acts of a sexual or indecent nature, and can also explain the way the complainant is said to have acted on that time, 'rolled over and pretended she was asleep', and that she did not tell anyone about it. In my view, therefore, the evidence, including the evidence from a very early age, and I appreciate there are authorities that remoteness in time may affect the probative value of proposed context evidence, but in my view the evidence in para 7 of the complainant's statement that from a very early age the accused had behaved in these ways, open mouth kissing, walking around the house without clothes, coming into the bathroom while she was showering and trying to get into bed' are probative of providing a context, as is the demand, in para 9, to take off her clothes. The reference to not having an erection, the demonstration of not having an erection in para 9, is probative" (Judgment pp 5 - 6). 10In ruling that the evidence was admissible, the trial judge took into account her intended direction to the jury that the evidence could not be used as tendency evidence. 11As I noted in Steadman v R (No 1) [2013] NSWCCA 55 at [7] - [11], subject to its exclusion under s 137 of the Evidence Act, evidence that assists in evaluating the evidence or conduct of a witness such as the complainant is admissible for that limited purpose, notwithstanding that it may also be propensity evidence relevant to the likelihood of the accused having committed offences charged. Unless the requirements of ss 97 and 101 of the Evidence Act are met, the jury must be instructed that only the former use may be made of the evidence. 12The appellant submitted that the evidence in question should not have been admitted as context evidence, first, because the alleged touching of the complainant's breast by the appellant was not implausible or unrealistic without the evidence and the complainant's conduct in rolling over and pretending to be asleep could have been regarded by the jury as reasonable quite apart from the context evidence. 13I do not accept this submission as it imposes too high a threshold for admissibility of the evidence. Context evidence need not be essential to explain the evidence or conduct of the complainant. It is sufficient that the jury may reasonably regard it as capable of doing so and that it may answer questions that could reasonably arise in the jury's mind concerning the complainant's evidence. In my view the evidence was capable of doing this by explaining the complainant's conduct in attempting to avoid sleeping next to the appellant, not complaining to him when the alleged incident occurred and not complaining for many years after. 14The appellant sought to equate certain evidence rejected in DJV v R [2008] NSWCCA 272 at [38] with that in question here. However the evidence in DJV was of events occurring at about the same time as the charged events which "made no relevant contribution to the context of the charged events" (ibid). The events to which the context evidence here related pre-dated the charged event and provided the background against which the complainant's evidence of that event was to be assessed. 15Secondly, the appellant relied upon the imprecision of, and lack of detail in, the evidence. This was relevant to the weight to be attached to it but did not in my view affect its admissibility. 16Thirdly, the appellant submitted that the evidence should have been excluded under s 137 of the Evidence Act because any probative value that it had was outweighed by the danger of unfair prejudice to the appellant. In particular, the appellant submitted that there was "a cumulative prejudice that arose from the reception of so much 'context' evidence". Again, I do not agree. The evidence was undoubtedly capable of being used by the jury as tendency evidence but I do not see any reason why the directions to the jury would not have precluded this occurring. When regard is had to the manner in which the evidence was led from the complainant, I do not consider that it was overwhelming in its volume to the extent that the jury may have been distracted from a proper consideration of whether the evidence as a whole established the charged offence or from complying with the trial judge's directions as to the limited use that it was entitled to make of the context evidence. 17Finally, the appellant complained that in his closing address the Crown Prosecutor invited the jury to use the context evidence as tendency evidence by saying: "That there was a father who wanted to see a little girl grow up, as he put it, and wanted to see her in a naked state. And that would explain to you, we would suggest things" (Transcript p 81). 18I reject this complaint. The comment was made in the context of the Crown Prosecutor dealing with the complainant's evidence that on the night in question she wanted to sleep away from her father. It did not constitute an invitation to the jury not to abide by the trial judge's directions given soon after. The absence of an objection at the trial by the appellant to the prosecutor's comment in my view confirms that the comment did not constitute a departure, or at least not one of any significance, from the consistent approach at the trial concerning the limited use that could be made of the context evidence.

GROUND OF APPEAL TWO: ADEQUACY OF DIRECTIONS CONCERNING CONTEXT EVIDENCE 19The appellant accepted on appeal that the trial judge's directions relevantly accorded with the suggested directions in the Supreme Court Bench Book. On appeal, the appellant made a complaint on appeal concerning those directions similar to that made in Steadman v R (No 1) [2013] NSWCCA 55. For the reasons given in that judgment at [23], I reject the complaint. 20The appellant also submitted that (in light of its imprecision and lack of specificity), the trial judge should have cautioned the jury concerning the weight to be given to the evidence. I do not consider that there was any need for such a direction. The nature of the evidence, and its limitations, was obvious. 21As no relevant objection was taken by the appellant's counsel at the trial, this ground of appeal may not in any event be relied upon without the Court's leave (r 4 of the Criminal Appeal Rules). I see no reason for the grant of leave.

GROUND OF APPEAL THREE: POST EVENT EVIDENCE 22As noted earlier (see [6]), the Crown inadvertently led evidence, previously ruled inadmissible by the trial judge, as to the appellant, after the date of the charged offence, coming into the bathroom whilst the complainant was showering. The complainant also gave evidence, not the subject of any ruling of the trial judge, that the appellant "was still looking at me and touching me up until I was 17 years or 18 years old" (Transcript p 49). 23As this evidence was no different in character to that given of events occurring prior to the charged act, I do not consider that it could be regarded as of any particular significance to the conduct of the trial. Neither counsel addressed on the evidence and the trial judge did not refer to it in her Summing-Up. I do not consider that its admission has caused any miscarriage of justice.

GROUND OF APPEAL FOUR: EVIDENCE OF MS KLEIJN 24Prior to the trial, the Crown made available to the appellant a written statement of Ms Lorraine Kleijn, the sister of the complainant's mother. Mrs Kleijn lives in the Netherlands. The statement included the following: "[The complainant] said that Ivan had committed incest with her and [the complainant's sister and cousin]. I thought that she was telling me something that I already knew even though no one had actually told me, but I was totally shocked. [The complainant] didn't go into specifics like times and dates but said Ivan had had done things to her and [the other two] when they were children, I can't recall that she told me how old they were at the time but definitely when they were young. She did mention that Ivan had raped her in the lounge room of my parents' house. It was the day before or the day after my mother's funeral. I was in Holland at the time, I couldn't get back in time for the funeral, but all or most of the family were there staying over. [The complainant] said she was sleeping in a sleeping bag in the lounge room. I don't know if there were other children there or not but Ivan raped her then". 25The appellant tendered that part of the statement that referred to the appellant raping the complainant in the loungeroom of the grandparents' house "the day before or the day after" her mother's funeral, as a prior inconsistent statement of the complainant, her evidence at the trial being anticipated to be (as it was in fact), not that the appellant raped her on that night, but that he touched her breast. 26In response to an email to her from the investigating police officer asking whether the complainant used the word "rape", Mrs Kleijn replied: "[The complainant] did use the word rape and was referring to the night before or the night after my mother's funeral. I don't recall exact words. When one gets told this sort of thing it does cause a sort of shock and so very emotional yet one does not expect to have to remember a conversation word for word exactly". 27The Crown submitted to the trial judge that Mrs Kleijn's reference in her statement to incest supported the view that the complainant (or Mrs Kleijn) did not use the word "rape" with its precise legal meaning and submitted that it would be unfair to the Crown to admit the reference to rape without the reference to incest but that the reference to incest could not be admitted because it included an allegation, that would have caused prejudice to the appellant, that he had interfered with two other young women. The trial judge accepted this submission and, under s 135 of the Evidence Act, rejected the applicant's tender because it would have been unfair to the Crown to allow it without including the reference to incest. 28I do not agree with the trial judge's ruling. It seems to me that the reference to incest would have assisted little, if at all, in understanding what the complainant or Mrs Kleijn meant by the word "rape". I do not consider therefore that admission of the reference to rape alone would have been sufficiently prejudicial to the Crown to warrant its rejection under s 135. 29On the other hand, I do not consider that the appellant's case was impaired to any significant extent by his inability to rely upon the extract from Mrs Kleijn's statement that he tendered. The extract would, if utilised by the appellant at the trial, have in my view been detrimental to his case in that it would have provided significant corroboration of the complainant's evidence that there had been non-consensual contact of a sexual nature between the appellant and the complainant on the night in question. The extract was readily reconcilable with the complainant's evidence by adopting the view that the word "rape" was not used in a technical, legal sense or that bearing in mind the lapse of time no particular significance could be attached to any particular word that Mrs Kleijn thought she recalled, as distinct from the thrust of what she said she had been told, namely, that the appellant had had non-consensual sexual contact with the complainant. In my view, rejection of Mrs Kleijn's evidence had no bearing on the result of the trial and did not deny the appellant any realistic prospect of acquittal (see [33] below and Cooper v R [2012] HCA 50; 87 ALJR 32 at [20] - [21]). It did not therefore result in any miscarriage of justice. It follows that the proviso to s 6 of the Criminal Appeal Act 1912 is applicable.

GROUND OF APPEAL FIVE: WHETHER THE VERDICT IS UNREASONABLE 30This ground, founded on s 6 of the Criminal Appeal Act 1912, requires the Court to consider not only whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty but also, based on its own independent assessment of the evidence, whether "it would be dangerous in all the circumstances to allow the verdict of guilty to stand" (SKA v R [2011] HCA 13; 243 CLR 400 at [11] and [14]. Consistently with this, the plurality judgment in SKA referred to the central question as being "whether on the evidence the Court was satisfied that the applicant was guilty of the offences" (at [20]). 31Counsel for the appellant submitted on appeal that what the complainant described in evidence was as consistent with the appellant being asleep at the time as with an indecent assault. He submitted that the appellant's arm and hand may well have made unintentional contact with the complainant whilst the appellant was asleep. 32I do not accept this submission. On the complainant's evidence, the appellant was awake and the contact with her breast must have been deliberate: the complainant's evidence was that the appellant was staring at the ceiling and holding her breast (see [4] above). The appellant submitted that the complainant did not give any evidence that she turned her head to look at the appellant and that there was in any event no evidence of lighting in the loungeroom. However, the complainant deposed to having seen the appellant staring at the ceiling and it was not suggested to her in cross-examination that she would have had any difficulty doing so. The appellant's case was simply that his family did not sleep at the grandparents' home on that night. 33The issue for the jury's determination was whether it should accept the complainant's evidence. The appellant has not in my view proffered any persuasive reason why the jury was not entitled to do so and convict the appellant. Taking into account the jury's verdict of guilty and the advantage it had over this Court in hearing and observing the witnesses give their evidence, I am satisfied from my independent assessment of the evidence that the appellant is guilty of the offence of which he was convicted. As to the relevance of the jury's verdict in this context I refer to Weiss v R [2005] HCA 81; 224 CLR 300 at [43] and Baini v R [2012] HCA 59; 87 ALJR 180 at [32].

CONCLUSION 34For the reasons given above, in my view the appellant fails on each of his grounds of appeal. As a result, the appeal should be dismissed. 35HALL J: I agree with the reasons of Macfarlan JA. In relation to ground 5, as to whether the verdict was unreasonable, I need only add that a review of the complainant's evidence does not indicate that there could have been any accidental touching or touching by mistake. The complainant's evidence was that she had observed that although her shirt was undone she had not left it unbuttoned when she went to sleep. In addition, contrary to the submission on behalf of the appellant, the complainant's account of what occurred was indicative of a deliberate, and not an accidental, interference with her. Having undertaken my own independent review of the evidence at trial, I agree with the conclusion expressed by Macfarlan JA. 36Accordingly, I agree with the order proposed by Macfarlan JA that the appeal should be dismissed. 37CAMPBELL J: I am grateful for having had the advantage of reading the judgment of Macfarlan JA in draft. With respect, I agree with his Honour's reasons and the order proposed. 38As his Honour has pointed out by reference to the decisions of the High Court of Australia in Weiss v R [2005] HCA 81; 224 CLR 300 and SKA v R [2011] HCA 13; 243 CLR 400 Grounds 4 and 5 engage particular obligations on the part of this court in the discharge of the powers conferred by s 6(1) Criminal Appeal Act 1912. 39Macfarlan JA's analysis demonstrates that the learned trial Judge's decision, made under s192A Evidence Act 1995, to exclude evidence which the appellant sought to rely upon as a prior inconsistent statement was erroneous. Considering the language of s 6(1) which precedes the proviso in its historical context (see Weiss at [12] - [30]) the third limb of s 6(1) has been satisfied in that her Honour's erroneous decision satisfies the statutory test that on any ... ground whatsoever there was a miscarriage of justice. The question is, therefore, whether a substantial miscarriage of justice has actually occurred. If not, this Court may ... dismiss the appeal. 40I acknowledge, as so frequently occurs in trials of this type, the Crown case below depended upon the jury being satisfied beyond reasonable doubt of the reliability of the account given by the complainant in circumstances where she was contradicted by the accused and no other witness gave material evidence: that is to say the contest below depended upon, in very substantial part, the word of the complainant against the word of the accused. 41Defence trial counsel sought to use part of the account of Mrs Kleijn as a prior inconsistent statement to contradict the complainant. This was a forensic task beset by a very high degree of difficulty indeed. For as Macfarlan JA has explained at [29], the extract defence counsel sought to utilise was in fact detrimental, and not favourable, to his case. 42Having reviewed for myself the evidence actually given at the trial and considered it in the light of the erroneously excluded material, I, like Macfarlan JA, have decided for myself that no substantial miscarriage of justice has actually occurred because the complaint to Mrs Kleijn actually bolstered the complainant's credit. Once the jury were persuaded beyond reasonable doubt that the complainant's evidence was truthful the appellant's conviction was inevitable. 43Ground 5 is that the Court should set aside the jury's verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence. This is referred to as the first limb of s 6(1). Again, having carried out my own independent assessment of the evidence, I agree with Macfarlan JA as to the application of the proviso. In reaching this conclusion, I have borne in mind the jury's advantage in seeing and hearing the evidence of the complainant and the appellant. It is clear from their verdict that the jury accepted the evidence of the complainant and rejected the evidence of the appellant. Consideration of the jury's advantage in this regard resolves any doubt I might otherwise have had about the nature and quality of the Crown evidence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2013

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