(1994) 181 CLR 487 Miller v R [2014] NSWCCA 34
R v Abou-Chabake [2004] NSWCCA 356
Source
Original judgment source is linked above.
Catchwords
(1994) 181 CLR 487 Miller v R [2014] NSWCCA 34
R v Abou-Chabake [2004] NSWCCA 356
Judgment (3 paragraphs)
[1]
Solicitors:
Green & McKay (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/91176
Decision under appeal Court or tribunal: District Court
Citation: [2014] NSWDC 167
Date of Decision: 1 August 2014
Before: Yehia SC DCJ
File Number(s): 2012/00091176
[2]
Judgment
SIMPSON JA: I agree with Button J.
BUTTON J: This is an application for leave to appeal against eight convictions for sexual offences entered by Judge Yehia SC in the District Court of New South Wales on 1 August 2014. Those convictions were entered after a trial by jury of an indictment containing nine counts ended with verdicts of guilty on eight of them, and a verdict of not guilty on one of them. Because the two proposed grounds of appeal are founded upon questions of fact, leave is required: see the judgment of Basten JA in Aoun v R [2011] NSWCCA 284. There is no application for leave to appeal against sentence.
I shall recount the grounds more formally later in this judgment, but at this stage it suffices to say that the first ground is that the eight convictions are unreasonable or unable to be supported, and the second ground is founded upon what is said to be fresh evidence given by the complainant in a further trial after the trial under consideration had concluded.
To state the allegation that substantially underpinned the prosecution against the applicant concisely, the complainant gave evidence that, in 1978 when she was 17 years of age, she was sexually assaulted by a group of men in the back of a panel van after a social event in the suburbs of Sydney. She alleged that the applicant was one of those men.
Procedural background
In order to understand the proposed grounds, it is necessary to set out the course of proceedings in the District Court.
On 18 September 2013, the applicant and two other men were arraigned in the District Court at Parramatta and a trial by jury commenced. I shall refer to those proceedings as "the first trial". The complainant gave evidence in that trial on 19 and 20 September 2013. Some time later, the jury was discharged without verdict.
On 15 May 2014, the applicant was arraigned individually before her Honour and a jury panel. I shall refer to those proceedings as "the second trial". The applicant pleaded not guilty to an indictment containing nine counts, the first eight of which were alleged to have been committed between 1 September 1978 and 31 October 1978 at Regents Park. The ninth count on the indictment was alleged to have been committed between 1 February 1980 and 31 August 1980 at Campbelltown. The evidence of the complainant from the first trial was put before the jury by way of a compact disk recording. She gave supplementary evidence in the second trial.
Count one averred that the applicant took away the complainant by force against her will, with intent to carnally know her (s 89 Crimes Act 1900 (NSW)).
Count two averred that the applicant raped the complainant (s 63 Crimes Act).
Count three also averred that the applicant raped the complainant.
Count four averred that Mark Johnston raped the complainant, and that the applicant was present aiding, abetting and assisting that crime.
Count five averred that Edward Lewocki raped the complainant, and that the applicant was present aiding, abetting and assisting that crime.
Count six averred that Rudolf Reichel indecently assaulted the complainant, and that the applicant was present aiding, abetting and assisting that crime (s 76 Crimes Act).
Count seven averred that Glen Partridge attempted to rape the complainant, and that the applicant was present aiding, abetting and assisting that crime (s 65 Crimes Act).
Count eight averred that the applicant indecently assaulted the complainant (s 76 Crimes Act).
Finally, count nine averred that the applicant raped the complainant (s 63 Crimes Act).
It is apparent that many of those counts were brought pursuant to offence-creating sections of the Crimes Act that were repealed many years ago. Neither ground of appeal is founded upon any disjunction between the evidence in the second trial and the elements of the offences. Nor, as I have said, is there any application for leave to appeal against sentence. In those circumstances, I shall not analyse the counts further.
As I have indicated, in the second trial, a sound recording of the evidence of the complainant from the first trial was played before the jury. That occurred without objection, pursuant to s 306I of the Criminal Procedure Act 1986 (NSW). Thereafter, there was supplementary examination-in-chief and cross-examination of the complainant in the second trial.
A number of further Crown witnesses were called in the second trial.
At the close of the Crown case, an application was made by the Crown to amend the dates of the first eight counts in the indictment. That was not opposed by senior counsel then appearing for the applicant (who had also appeared for the applicant at the first trial). With regard to the first eight counts, the concluding date of the offence was amended from "31 October 1978" to "31 December 1978".
The accused gave evidence in the defence case in the second trial, and a number of documents were tendered through him.
Thereafter her Honour summed up to the jury. Because neither ground asserts any error of law or fact in the summing-up, I shall not detail it further.
As I have said, the second trial concluded with the jury returning verdicts of guilty on the first eight counts in the indictment, and a verdict of acquittal on the ninth count.
On 28 July 2014, the two men who had been on trial with the applicant in the first trial stood trial in the District Court before a judge and jury. For convenience, I shall refer to those proceedings as "the third trial". The complainant gave evidence in the third trial from 30 to 31 July 2014. Part of her evidence in the third trial is said to be fresh evidence. That trial ended in verdicts of acquittal.
Summary of evidence
It is convenient now to set out a concise overview of the evidence in the second trial. In doing so I shall, of course, include a summary of the evidence of the complainant in the first trial that was tendered in the second trial, and provide transcript references to the separate extract of that evidence.
None of the men mentioned in my summary of the evidence, other than the applicant, have been convicted of a sexual offence against the complainant. They are therefore presumed innocent of any sexual offences against her.
Summary of the evidence of the complainant from the first trial
In the first trial, the complainant gave evidence that she was then 52 years of age, having been born in December 1960.
In September or October 1978, she attended a social event at a suburban home. The hostess was Julie Caldwell. A number of female and male friends and acquaintances of the complainant were there. Some alcohol was consumed, including by the complainant. She recalled that Mr Reichel attended, and at the time he owned a yellow Sandman panel van.
Whilst at the social function, the applicant, who was also a guest, pulled her onto his lap and tried to "grope" her. Because of a medical condition affecting her bones, she was of quite short stature. As well as that, her condition caused her to suffer pain when the applicant did those things.
When the social event came to an end, it was approaching sunset. The complainant went outside. Another young woman suggested to her that the applicant liked her, and that she should approach the panel van in order to say goodbye to him. Despite the fact that she had previously been the subject of ill-treatment by the applicant, the complainant did so. The applicant picked her up and physically threw her into the back of the panel van, the tailgate of which was closed, but the rear window of which was open. She gave evidence that there was a mattress in the rear section of the panel van. There was a bench seat in the front, and of course there was no rear seat. There were also a number of young men sitting in the rear of the panel van. Thereafter, the applicant also entered the rear of the van.
There were four men in the back. Sitting on the front seat were Mr Reichel, Sue Thomas, and Vicky Chalker.
At TT 64.5 of her evidence in the first trial, the complainant said "they grabbed me with my arms my feet and held onto me, held me down".
One of the men took the underwear of the applicant off, and threw it out of the vehicle.
In the rear of the van, the applicant pushed the complainant onto her back. He then lay on top of her and raped her; in using the legal expression that was apposite at the time, I mean that her evidence was that he had penile/vaginal sexual intercourse with her without her consent. It caused her pain. At the time, another man was holding her right leg (TT 67.26).
After that, the van was driven to a point quite near the home of the complainant. However, she did not seek to alight because she felt safer in the van than out of it.
Ms Thomas was dropped off, and left the van. A little later, so did Ms Chalker. The complainant asked to be returned to Ms Caldwell's house, but that request was refused. The van was driven to a location where she could see gumtrees.
The complainant sought to climb over the front seat from the rear section of the panel van. The applicant grabbed her leg, and raped her again in the back of the van. By that stage, the other men were standing outside the van.
At the end of that second sexual assault by the applicant, he alighted and joined the other men. Thereafter, two of them raped her one after another in a similar way; namely, by lying on top of her in the back of the van. The third man, Mr Reichel, also lay on top of her whilst she was on her back, but did not attempt to penetrate her. Instead, he (bizarrely) produced a cross and held it up. Finally, a fourth man appeared to be preparing to sexually assault her, but when she bit him on the shoulder he desisted.
Two men grabbed her under the armpits and tried to turn her over, but failed. The applicant returned to the rear of the van and straddled her whilst she was lying on her back. Her top and bra were raised. The applicant placed his penis between her exposed breasts and moved it back and forth (TT 80.24).
After that, the second man who had raped her spoke to the other young men of using a bottle "on her", but Mr Reichel said "No, I think she's had enough" (TT 81.14).
The complainant was driven away from the scene and eventually permitted to leave the van. She spent the rest of the night at the home of a man called Simon, to whom she was introduced by Mr Reichel and whom she had not previously met. The next morning, when using the toilet, she noted a rust coloured discharge from her vagina.
After leaving the premises of the man Simon, the complainant rang Ms Caldwell from a public phone and told her that she had "been raped". She caught a train back to the home of Ms Caldwell and told her "a little bit about what had happened" (TT 82.7).
At a later stage, either that day or the following day, both Ms Thomas and Ms Chalker visited the complainant at her home. She said that she had been raped, but told Ms Thomas that the driver of the van had not raped her. She also told another woman present, Anita Maddock, that she had been raped.
Many years later, in August 2010, the complainant gave a statement to police. After that, she had some contact with Ms Thomas.
In cross-examination in the first trial, the complainant said that she had never met the applicant before the offences. She rejected the propositions that the applicant never raped her, and that the applicant had never had sexual intercourse with her in front of other young men in the back of a panel van. She agreed that she had given at least four statements to police. She asserted that her memory of events had improved, by way of mental exercises that she had been undertaking.
She agreed that in at least one statement to police she had claimed that she could not remember the identity of the man who had straddled her and placed his penis between her breasts. She gave evidence that "I always knew who it was but I just didn't want to remember it" and "it wasn't something I wanted to bring up at that time" (TT 99.15 and 99.19). She agreed that, to that extent, she had not told the police the truth.
She agreed that at no time did she scream or call out, and gave evidence that that was because she was "too scared" (TT 101.46). She agreed that no one ever placed his hand over her mouth or gagged her.
She rejected the proposition that the panel van had bucket seats. She asserted that she thought that the front seat was a bench seat, and that was why she was unable to climb over it at one stage.
She agreed that there was a discrepancy in what she had said at various times about the location of the social event.
She agreed that, when the panel van first arrived at the location near her home, she did not alight from the van. She rejected the proposition that at that stage no offence had been committed against her. She gave evidence that she had made a "choice", and that was "because I don't know what might've happened if I got out of the van" (TT 107.41). She agreed that she did not alight from the van at the later stages when the other two young women did so.
She agreed that she had gone to say goodbye to a young man who, on her evidence, had previously grabbed her and sought to grope her. She affirmed that being forcefully placed in the back of the van did not cause any injuries, and stated that the mattress had "sort of protected some of it" (TT 133.32).
She agreed that, when the first sexual assault commenced, she did not call out for help from the occupants of the front seat of the van.
In cross-examination she gave evidence that, at an early stage, her top had been pulled up. She agreed with the proposition that two men were holding her at one stage, "each holding an arm and a leg" (TT 136.6). Later, she said that that was occurring when the applicant took her underpants off (TT 137.21).
It was put to the complainant that her description of the home of the man Simon could not be correct, because prior to 1980 there was no block of units in the street that she had identified.
She was firm in her evidence that the offences occurred before November 1978.
She agreed that one of the young women to whom she had complained had told her to go to the police, but she had not done so for many years.
Summary of the complainant's supplementary evidence given in the second trial
In the second trial the complainant gave supplementary evidence that, quite apart from the sexual offences committed by the applicant and others upon her in late 1978, she had also been sexually assaulted by the applicant in his car whilst it was parked in an RSL car park in February 1980. That was after she saw him inside the club at a social function. She was ordered by the applicant to enter the car. She did not say a word. She was not in a position to fight him, because of pain from a recent surgical operation. She "gave in", but did not consent (TT 79.47).
That evidence underpinned count nine, which, as I have said, resulted in a verdict of not guilty.
She agreed that she had suffered from postnatal depression in 1986, and gave details of that, including her treatment at a clinic. They included a concern about a connection between the horror film "Rosemary's Baby" and the appearance of her own baby. She also agreed that at the time she was having thoughts that were "confused" (TT 54.46). She accepted that, on admission to the clinic, she had told staff that she believed that her partner's mother may have cast a spell on her.
She rejected the propositions that she had never been taken away in a panel van in which the applicant was present against her will; that she had never been raped in a panel van by the applicant; and that, in April 1979, she had had consensual sexual intercourse with the applicant in the panel van.
She was asked about the details of what she may have told Ms Maddock, but was unable to remember them.
She was cross-examined in detail about the allegation that underpinned count nine; in light of the fact that the verdict on that count is not under appeal, that does not require detailed exploration.
Evidence of other witnesses in the second trial
Ms Caldwell gave evidence that, at a social event in 1978, she saw "one of the boys picked up [the complainant] and took her [to] the back of the car and threw her in" (TT 103.41). She saw the complainant kicking her legs at that time. That young man broadly fitted the description of the applicant. She said that the vehicle "could have been a sedan or a panel van, I'm not sure" (TT 106.1).
The next morning she saw the complainant. She was upset, and said that she had been "gang raped" (TT 109.29). Ms Caldwell said that the complainant should go to the authorities; the complainant replied that she was incapable of doing so. She said that the complainant "described how awful it was, that they went at her two at a time" (TT 109.34). Thereafter the following exchange occurred in examination-in-chief at TT 110.03:
Q. What did she actually say, can you recall?
A. She said, "They went at me two at a time. How could they do that to me?"
Ms Caldwell recalled that there was another woman present at the time of the complaint, but she was unable to remember who it was.
In cross-examination, she denied that she had discussed the case with any other person, except the detective to whom she had given a statement in August 2011. She also denied that she had seen or spoken to the complainant recently.
She accepted that there was nothing in her statement of August 2011 about seeing the complainant being taken to a vehicle and thrown into it. That memory had just "popped into" her head a couple of days before the trial.
Ms Maddock gave evidence of a conversation that she had with the complainant at her home in "probably October or November" 1978 (TT 121.19). In short, the complainant told her of being "caught by herself at the back of a party" by "a group of boys" (TT 122.12) who "just kept coming one after another" (TT 122.17). The witness was asked about the precise location of the incident, and said the following at TT 122.43:
A. The location of the incident? I can't quite recall it. I keep confusing it with being in the bedroom, with her telling me about it. So I don't know if she - it was at a party and it was at the - I'm sure it was at the back somewhere.
A little later she said "I can't actually recall what it was she said about the location" (TT 122.50).
In cross-examination, she agreed that she had not made a written statement until December 2011. She agreed that the conversation with the complainant could have been in early 1979.
She was cross-examined in detail about her recollection of the complaint by the complainant. She agreed that the complainant had sworn her to secrecy. She also accepted the proposition that the complainant had said that "she was caught by herself at the back of the party" (TT 126.43).
Janette Irving gave evidence. She had been in a relationship with the applicant until 1988. She was asked a number of questions relevant to the vehicle in which count nine was alleged to have taken place.
A statement of Wendy Thorne was read. It was made in November 2011, and recorded that the complainant had telephoned her about six weeks before then to tell her that the police would come to speak to her. The witness had no recollection of any complaint made to her by the complainant of a sexual assault.
Lynette O'Grady gave evidence that she had heard nothing about a sexual assault of the complainant.
Ms Thomas gave evidence that Mr Reichel had owned a yellow panel van. It had what she at first called in her evidence a bucket seat in the front, but an analysis of the details of her evidence shows that she was describing a bench seat.
She recalled a social event in 1978 at the home of Ms Caldwell. She could not recall the time of year. She travelled there with Mr Reichel in his Sandman panel van. She recalled leaving a social event with Ms Chalker and Mr Reichel. The applicant, Mr Lewocki, Mr Johnston and Mr Partridge walked out, and the complainant walked out with Ms Caldwell. All persons entered the panel van, with Ms Chalker sitting next to the window in the front, Ms Thomas sitting in the middle, and Mr Reichel in the driver's seat.
Ms Thomas recalled looking behind her and seeing in the back of the panel van the complainant, the applicant, Mr Johnston, Mr Lewocki, and Mr Partridge.
Some time later she looked back again and saw the complainant lying on her back with the applicant on top of her and with his face towards her face. Ms Thomas "believed they were having sex" (TT 150.33).
At some later stage, she went to turn around again. Mr Reichel said to her "Don't look around" (TT 151.24). She remembered that Ms Chalker took hold of her hand. Later, she saw the arm of a man throw a pair of underpants from a window of the van.
After that, the van stopped at Campbelltown, and she heard the complainant say "I can't go home looking like this" (TT 152.13). She also heard the complainant ask that she be taken back to Ms Caldwell's house "in a pleading tone" (TT 152.34).
Eventually, Ms Thomas alighted from the car and went inside her home.
Two or three days after the events in the van, she had a conversation with the complainant in the latter's bedroom. The complainant said "They raped me" (TT 154.15).
In cross-examination, the witness accepted that she was first asked to recall events in 2012. When contacted by the police she had telephoned the complainant immediately. She denied that there had been any conversation between herself and the complainant about the evidence of the complainant in the trial.
She rejected the proposition that the panel van had two bucket seats in the front with a centre console between them.
She recalled seeing the complainant at some stage at the home of the applicant.
She agreed that she had previously given evidence inconsistent with the proposition that the panel van had a bench seat.
It was put to her that she had never seen the applicant seeming to have sex with the complainant in the back of the panel van in the presence of other young men. She denied that proposition.
The officer in charge of the investigation, Detective Sergeant Brisby, gave evidence that Ms Chalker had died in 1995. With regard to the attributes of a Sandman panel van of the kind owned by Mr Reichel, he agreed that he had basically done some research on Google, nothing more.
He gave evidence that the police sought to interview the applicant about the allegations, but he exercised his right to silence.
The accused gave evidence in the defence case. He firmly denied ever committing a sexual offence against the complainant. He said that he had had a "kiss and a cuddle" with the complainant at a backyard shed in early 1979 (TT 206.35). In March or April 1979, he had sexual intercourse with consent with the complainant in the back of the panel van of Mr Reichel. Mr Reichel and Ms Thomas were present in the front seat.
He had never been to a house party of the kind described in the prosecution case. He had never taken part in the gang rape of the complainant.
As for count nine, his evidence was that he had sexual intercourse with the complainant in his car in an RSL club car park, but it was with her consent.
In cross-examination, he rejected the propositions that the separate consensual sexual intercourse in the presence of two others in 1979 described at [90] of this judgment had not occurred; that he had ever thrown the complainant into the back of a panel van; that he had sexual intercourse with her against her will (or at all) in a panel van in late 1978 in the presence of three other young men; and that some other young men had raped the complainant in his presence.
Summary of evidence of the complainant in the third trial
The transcript of the complainant's evidence in the third trial was placed before us in its entirety as an annexure to the affidavit of Stephen Green of 24 March 2015. It is relevant only to the second ground, and only in a limited way. I shall only recount the portions of the evidence of the complainant at the third trial that I understand to be relevant to the second ground.
At the time of the third trial, counsel who appeared for the applicant in this Court was appearing for one of the other men who was then on trial.
Counsel cross-examined the complainant about the complaint that she had made to Ms Caldwell. He asked her the following at TT 133.37:
Q. Did you say this to Julie Caldwell, "They went two at a time on me." Did you say that?
A. I don't remember saying that.
At TT 134.9 the following exchange occurred:
Q. Well, as you sit there in the witness box now, do you say that it's a correct and truthful account of what happened in the panel van, to describe what happened in these terms, "They went two at a time on me"?
A. That's just reinforced something that I thought had happened.
At TT 143.3, the following exchange occurred:
Q. [Name of complainant], I think we got to the point where I had asked you to consider whether the words "They went two at a time on me", was an accurate description of your recollection of what occurred in the back of the panel van, on the occasion that brings us to court. What do you say about that?
A. There could've been more that happened, from what I've said in my statements.
Q. Well let's try and take that in steps. You are raising the possibility that there could've been more things that occurred in the panel van than you had remembered, is that right?
A. Mm-hmm.
Q. Does that mean then that you accept that your recollection of what happened in the panel van could be incomplete?
A. Incomplete, mm-hmm.
At TT 143.46, the following exchanged occurred:
Q. There are some things you could say, is that right? Is that in addition to the things that you've told us about, through your videotape and through your evidence to date?
A. Yes.
Q. What are those things?
A. I don't have a full recollection because my head kept hitting into the floor of the van.
Later, at TT 144.16, the following exchange occurred:
Q. [Name of complainant], so that we can understand what you're telling us, do you mean to say that your head hit the floor of the van at some stage on the evening?
A. It was hitting continuous that day.
Q. Did that inhibit or restrict your ability to remember additional things that might've happened?
A. To see what was going on.
Q. So you're telling us that the position of your head might've stopped you from observing what was going on, but surely--
A. Yes.
The following exchange occurred at TT 144.38:
Q. [Name of complainant], I just want to give you a fair opportunity to exhaust your memory as it were. Is there nothing else you can tell us about what may have gone on?
A. I think I was lifted up, turned around, lifted up and held by the back, by two of the guys and I think they took turns.
Q. So, [name of complainant], are you saying that one of these sexual encounters involved two people taking turns. Is that what you're telling us?
A. No, two people were actually holding while one took a turn holding me up, while one took turns. While they took turns. They swapped around.
Commencing at TT 145.27, the complainant was asked questions about being held by one or more young men whilst another one of them had sexual intercourse with her:
Q. So are you saying that you were in a kneeling position with two people holding you and a third person having intercourse with you?
A. Mm-hmm.
Q. Do you agree that there is nothing in MFI 9, your handwritten letter, that described you--
A. Yes, nothing there.
Q. -- in a kneeling position, held by two people while a third person had intercourse with you?
A. Mm-hmm.
Later, at TT 146.20, whilst being asked about a statement of hers to police, the following exchange occurred:
Q. Similarly, there is nothing about you having sex with two people at a time?
A. No, I'm not going to check it all the time.
A similar exchange occurred at TT 146.50:
Q. Do you further agree that there was nothing in [a statement to police] about you having sex with two people at a time?
A. No, there's nothing there.
At TT 147.11, the following exchange occurred:
Q. Do you agree that there was nothing in that statement about you being held by two people while a third person had intercourse with you?
A. There's nothing there.
Q. Do you agree that there was nothing in that statement about you having sex or intercourse with two people at a time?
A. There's nothing there.
Finally, at TT 147.25 the following exchange took place:
Q. Do you also agree that there was nothing in your evidence that you saw on video tape where you had sex with two people at a time?
A. There's nothing there.
Grounds of appeal
Two grounds of appeal were notified and pressed as follows:
Ground 1 - The verdicts on Count One to Eight inclusive are unreasonable or cannot be supported by the evidence. As a consequence, the convictions should be quashed and verdicts of acquittal entered.
Ground 2 - The convictions on Counts 1 to 8 inclusive should be set aside because at the time of the trial, the absence of new or fresh evidence amounted to a miscarriage of justice. In all of the circumstances, the convictions should be quashed and verdicts of acquittal entered.
Ground two
It is convenient to deal with this ground first. Although this ground was only faintly pressed by counsel for the applicant by the end of the hearing before us, it was not formally abandoned, and I consider that it should be determined.
Submissions on ground two
Counsel for the applicant submitted that the portions of the evidence of the complainant at the third trial that I have extracted and summarised above should be classified as fresh evidence. That was said to be on the basis that it was "never available to the [applicant] at the time of his trial, either generally or constructively". That was said in turn to be because the evidence was unknown to anybody, including perhaps the complainant herself, because things were coming back to her memory in the witness box.
Counsel submitted that the evidence of the complainant at the third trial raised a number of issues that significantly called into question her credibility. They included her evidence that her head had repeatedly hit the floor of the panel van (TT 144.2); the concession that her recollection was incomplete (TT 144.11); and her claim that her positioning was such that it was hard to see what was going on (TT 144.22). It was also said that her evidence that she was held down by two offenders whilst the third had sex with her (TT 144.41); that offenders swapped positions (TT 144.47); and that she was held in a kneeling position by two offenders whilst a third had sexual intercourse with her (TT 145.48) were all totally new, and were inconsistent with her statements to police and her evidence in the first and second trials.
It was said that the evidence was of such cogency that it would, on its own account, call for the convictions to be quashed.
Counsel for the applicant submitted that the operative test is contained in the well-known decision of R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (Kirby J, with whom Mason P and Levine J agreed).
Counsel for the Crown did not resist the proposition that the test is contained in R v Abou-Chabake. However, he submitted that the evidence was certainly available at the time of the second trial (and in all likelihood, the first) because senior counsel then appearing for the applicant need only have asked the complainant about it in cross-examination.
He also submitted that one can readily infer that a tactical decision was made by senior counsel in the first and second trials not to cross-examine the complainant about details of what she alleged had been done to her, except in a highly focused and structured way.
Separately, he submitted that, properly understood, the complainant was not altering her version of the events that underpinned the first eight counts on the indictment. Rather, she was, at the invitation of defence counsel, giving evidence of other things that had occurred in the panel van, above and beyond those that she had detailed in her evidence in the past.
Finally, he submitted that the complainant made it tolerably clear that she was not speaking of two young men having sexual intercourse with her at the same time. Rather, properly understood, one can see that what she was describing was being restrained by one man whilst another man raped her.
Determination with regard to ground two
The Court of Criminal Appeal has affirmed that the operative principles to be applied to a ground of this kind are contained in the judgment of Kirby J in R v Abou-Chabake: see Miller v R [2014] NSWCCA 34 at [132] (Johnson J, with whom Harrison and Adamson JJ agreed); Kidd v R [2014] NSWCCA 319 at [49] (Ward JA, with whom Fullerton and Hamill JJ agreed); and Hay v R [2013] NSWCCA 22 at [18] (Simpson J (as her Honour then was), with whom Fullerton and Davies JJ agreed). The salient portions of the latter judgment are as follows:
[63] … The principles may be summarised as follows:
First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
Is the evidence fresh?
If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?
If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900) [now Pt 7 of that Act]. It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517).
Applying those principles to the evidence of the complainant at the third trial, I consider that the ground fails at a number of hurdles.
First, I do not accept that the evidence given in the third trial on 30 and 31 July 2014 was something that had come back to the complainant after the conclusion of her evidence on 20 May 2014 in the second trial, a little over two months before. To my mind, if senior counsel for the applicant had asked the complainant the same questions in the second trial as were asked of her in the third trial, there is nothing to suggest that she would not have given the same answers.
In other words, it was quite open to senior counsel for the applicant to obtain that evidence and place it before the jury in the second trial, if he wished to do so. And as my summary of the evidence of Ms Caldwell at the second trial shows at [62] of this judgment, she squarely gave evidence in those proceedings of the complaint by the complainant that "they went at me two at a time". In other words, senior counsel for the applicant could have explored that evidence of Ms Caldwell with the complainant at the second trial.
Because the evidence was available at the time of the second trial, it cannot be characterised as fresh evidence, in accordance with the first principle, even allowing great latitude to the applicant, in accordance with the second principle.
Secondly, I consider that it was a deliberate and sound tactical decision made by senior counsel for the applicant at the first and second trials not to cross-examine expansively an adult woman who was giving evidence that she had been sexually assaulted by a number of men in very distressing circumstances when she had been a teenager many years before. The seventh principle therefore tells against the success of the ground.
Thirdly, I do not consider that the new evidence is particularly cogent. Properly understood, I do not interpret what the complainant was saying as being that she was sexually penetrated by two men at the one time. Rather, I interpret what she was saying as being that she was attacked by two men at the one time, one of whom was sexually penetrating her, and the other of whom was restraining her in order to aid and abet that crime.
It can be seen from my summary above that the complainant gave evidence that that very thing occurred in the first trial in September 2013: at [33].
Nor do I consider that the other aspects of the evidence have much cogency. The complainant was responding to questions in cross-examination that asked her to search her memory at large, and to recount things that she may not have said before. Where a young woman is being repeatedly raped whilst lying on her back, it is not difficult to imagine her head hitting the floor of the van a number of times. The concession that her recollection was incomplete is hardly surprising, in light of the passage of three decades. Whilst it is true that the evidence of the complainant was that, during the sexual assaults she was generally on her back, it was not the case that her evidence was that she was in that position during the entirety of the ordeal: see [86] above. And I have already rejected the proposition that these recollections were "recovered" in cross-examination. Rather, I consider that they were the result of the complainant expanding upon her evidence in an open-ended way, at the invitation of counsel.
The evidence of the complainant from the third trial does not cause me to be affirmatively satisfied of the innocence of the applicant, or to experience a reasonable doubt about his guilt, in accordance with the fifth principle.
In light of my assessment of the cogency of the evidence relied upon, I consider that the submission that there should be a verdict of acquittal on all eight counts must be rejected.
If one goes on to consider the alternative relief sought of a new trial, I have already explained that I do not consider that the evidence is fresh. I consider that that evidence of the complainant in the third trial is capable of belief, but do not consider that it robs her evidence in the first and second trials of that characteristic. I do not consider that, based upon the new evidence, one can be affirmatively satisfied that it would have been likely to have caused the jury in the second trial to have entertained a reasonable doubt about the guilt of the applicant, in accordance with the sixth principle.
In short, I consider that the evidence of the complainant in the third trial was the result of her being cross-examined in that trial in a way that was different from how she was cross-examined in the first and second trials. As a result, the answers were different to a degree. But there is nothing in those answers that leads me to the view that there should be a new trial, let alone verdicts of acquittal.
It follows that I would reject ground two.
Ground one
Submissions on ground one
Neither counsel submitted that the law to be applied with regard to this ground is controversial.
In written and oral submissions, counsel for the applicant pointed to a number of aspects of the evidence that would, he submitted, lead us to find that the verdicts on counts one through eight were unreasonable. He did not submit that we should take into account the evidence of the complainant at the third trial in assessing ground one. The aspects of the evidence in the second trial were as follows.
First, the very significant delay in the matter being reported to the authorities. Counsel emphasised that, of course, there was no opportunity for the complainant to be medically examined, or for any of her clothes to be scientifically examined. He also noted that Ms Chalker had passed away many years before the first complaint to the authorities, and her version of events was wholly unavailable to either party.
Second, counsel pointed to what he characterised as unsatisfactory complaint evidence. He described the complaint to Ms Maddock as "totally inconsistent" with the evidence of the complainant. Counsel also drew attention to the evidence of Ms Caldwell that the complainant had told her that "they went at her two at a time". He submitted that that is inconsistent with what the complainant had said in her evidence in the first and second trials.
Third, there was said to be a lack of clarity with regard to dates. Counsel made it clear that he was not asserting that the verdicts were unreasonable because it had not been established that the offences occurred within the dates specified in the indictment. Rather, he submitted that the lack of clarity with regard to when the offences occurred, necessitating the amendment of the indictment in the second trial, was a factor that could be taken into account in assessing whether the verdicts are unreasonable.
Fourth, counsel pointed to the actions of the complainant on the evening. He emphasised her evidence that she approached the vehicle to say goodbye to a man who had previously groped her; the fact that she did not cry out, either when being placed in the van against her will, or whilst being sexually assaulted in the back of the panel van, even though two young women were in the front of the vehicle; the fact that there may have been some inconsistency on the part of the complainant about the depth of her friendship with Ms Thomas; and the fact that the complainant did not seek to leave the van on three occasions when she could have done so.
Fifth, he asserted that there were important inconsistencies within the evidence of the complainant. With regard to the identity of the person who indecently assaulted her by placing his penis between her breasts, counsel submitted that the complainant had deliberately misled the police on her own admission. There was confusion as to the location of the social event. There was also confusion as to the age of the complainant at the time of count nine.
Sixth, counsel submitted that the evidence of the complainant was inconsistent with the evidence of others. It was said that Ms Caldwell and the complainant had different recollections about the details of the departure of persons from the social event.
Seventh, counsel emphasised the psychiatric condition of the complainant in 1986.
Eighth, he pointed to the noteworthy improvement in the memory of witnesses in the Crown case. Counsel referred to the assertion that Ms Caldwell first remembered (without any prompting from an external source) that the complainant had been placed in the back of the van a matter of days before she was to give evidence, although she had not recalled that event for over 30 years. Ms Thomas, he submitted, had also experienced an improvement in her memory with regard to the clothing worn by the complainant.
Ninth, counsel pointed to the verdict on count nine. Although he did not submit that the verdicts on counts one to eight were unreasonable because the verdicts of guilty were unable to be rationally reconciled with the verdict of not guilty on count nine, he submitted that the quality of the evidence of the complainant with regard to count nine could inform one's analysis of its reliability with regard to the other eight counts.
Tenth and finally, he submitted that the failure of the detective properly to investigate the question of whether the panel van had bench or bucket seats detracted from the strength of the Crown case.
Determination of ground one
In Filippou v The Queen [2015] HCA 29, the High Court of Australia recently returned to the proper approach to the question of whether a verdict is unreasonable, albeit in the context of an appeal from a conviction entered after a trial by judge alone. The plurality said at [12]:
Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice…It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.
(footnotes omitted)
Their Honours then referred to M v the Queen [1994] HCA 63; (1994) 181 CLR 487 at 494. The passage (in its original form regarding jury verdicts) is as follows:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
(footnotes omitted)
All of the matters raised by counsel are worthy of consideration. Nevertheless, I consider that it was well open to the jury to return verdicts of guilty on counts one to eight. That is so for the following reasons.
First, there was nothing inherently irrational or incredible about the evidence of the complainant. The proposition that a 17 year old girl, encouraged by a female friend to approach a vehicle to say goodbye to a young man who had earlier in the evening tried to grope her, is not to be dismissed as inherently unbelievable. Nor is the proposition that a young woman might subsequently feel safer in a vehicle in which others are present than if she were to leave it, including after having been sexually assaulted by (at that stage) only one of the occupants.
Second, I do not regard the controversy about bench or bucket seats as being of great moment. Ms Thomas gave evidence that there were three persons in the front. And the complainant gave evidence that she sought to escape by clambering over the front seat, but was unable to do so because she was restrained by the applicant.
Third, the complainant told a number of female friends that she had been "gang raped" very soon after the offences.
Fourth, I do not accept that any inconsistency between the recollection in the witness box of the complainant about the details of what had happened 35 years before the trial, what she had said to others shortly afterwards, and the recollection of those other persons about what she had said, was of any great moment. To the extent that the evidence of Ms Maddock about the complaint by the complainant differed from the account given by the complainant with regard to the location of the offences, my extract of the evidence of Ms Maddock shows that she was hardly unequivocal about the topic. Taken as a whole, the thrust of what the complainant had said to others was, to my mind, consistent with her evidence about what had happened: that she had been the victim of a "gang rape".
Fifth, the evidence of Ms Caldwell corroborated the proposition that the complainant had been forcefully placed in the back of the panel van. Whilst that evidence was liable to the valid criticism that it had not been mentioned before her appearance in the witness box, it nevertheless went some way to supporting the evidence of the complainant.
Sixth, I regard the evidence of Ms Thomas as powerful corroborating evidence. It will be recalled that her evidence was that she saw the applicant on top of the complainant, in circumstances in which one could well infer that they were having sexual intercourse in front of a number of other young men in the back of a panel van.
Even more significantly, when she went to turn around again, she was told not to do so by the driver of the vehicle, and her hand was held by the late Ms Chalker. That evidence of Ms Thomas was firmly maintained in cross-examination. And that evidence was powerful corroboration of the evidence of the complainant that sexual contact that deserved to be kept hidden because it was a crime was occurring in the back of the panel van whilst Ms Thomas was present.
Seventh, the jury had the recorded evidence of the complainant from the first trial, the evidence of the complainant before them in the second trial, and the evidence in the witness box of the applicant. The jury was in an immeasurably better position to judge the demeanour and credibility of the two central witnesses than this Court.
Eighth, in light of the strength of the Crown case with regard to count nine, it is not surprising that a jury was not satisfied beyond reasonable doubt of the guilt of the applicant of that offence. And it is true that the assertions of the complainant about that event are to be taken into account with regard to her credibility on the other counts. But I repeat: to my mind, the first offence committed in the back of the panel van by the applicant was directly corroborated by the evidence of Ms Thomas, and the subsequent offences were indirectly corroborated by the same evidence.
Ninth, the jury were in a position to assess the complainant when she was cross-examined about the details of her postnatal depression. In particular, they were in a position to assess her explanations about whether she was truly delusional, or merely stressed and confused. And in any event, the episode was an isolated one that occurred over seven years after the events in question (including the early complaints), and 28 years before the second trial.
Tenth, the jury were also in the best position to decide whether they accepted the explanation of the complainant about why she had at first deliberately not identified to the police the perpetrator of the indecent assault, which had its inherently degrading features.
Eleventh, to my mind, the evidence was clear that the offences had occurred in the summer at the end of 1978 and the beginning of 1979. No doubt there was some confusion about the month, but that was to be expected after the passage of three decades. As I have said, no appeal was mounted on the basis that the dates in the indictment were of the essence.
Twelfth and finally, it is true that there was a delay in complaint to the authorities. No doubt that disadvantaged the applicant, though it also disadvantaged the Crown. Consideration of those competing disadvantages was a matter for the jury.
In short, the evidence in the Crown case is subject to valid criticisms. But none of the factors relied upon, whether alone or in combination, persuades me that it was not open to the jury to return verdicts of guilty. And the evidence in the trial as a whole, and in particular the corroborative evidence of Ms Thomas, leads me to be satisfied beyond reasonable doubt of the guilt of the applicant of the offences of which he was convicted.
I would reject ground one.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
FAGAN J: I agree with Button J.
[3]
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: 02 September 2015