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[2016] VSCA 229
General information, not legal advice.
Court of Appeal (Vic)
2016-09-21
Priest JA
Original judgment source is linked above.
DPP v [Tandy] (Unreported, County Court of Victoria, Judge Sexton, 22 June 2015 (Conviction); 22 April 2016 (Sentence))
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of child under 16 - Whether verdict unsafe and unsatisfactory - Inconsistencies between complainant's evidence and the evidence of alleged eye-witness - Credibility and reliability of complainant's evidence - Whether verdicts inconsistent - Whether Kilby direction required - Appeal allowed - Judgment of acquittal entered.
1 At the conclusion of oral argument on 15 September 2016, the Court unanimously granted the applicant leave to appeal against conviction. By a majority, the Court ordered that the appeal be allowed; that the relevant conviction in the County Court be set aside; and that a judgment of acquittal be entered.[2]
2 The Court indicated that it would provide reasons for those orders. These are our reasons.
3 On 22 June 2015, a jury in the County Court found the applicant guilty of sexual penetration of a child under 16 who was under his care, supervision or authority (charge 2).[3] The indictment alleged that the offence occurred on a date unknown between a day in November 2007 and a day in November 2008, when the complainant, 'BT', was aged ten years. The jury found the applicant not guilty of another similar charge which related to a two year period between November 2004 and November 2006, when BT was aged between seven and nine years (charge 1).
4 Sentencing was delayed, mainly because of the applicant's ill health. On 22 April 2016, the trial judge sentenced the applicant to be imprisoned for four years. Somewhat unusually, the judge fixed a non-parole period of 12 months.
5 The applicant sought leave to appeal against conviction on four grounds as follows:
(a) the Pretext call contained evidence of an adoptive admission; and
(b) the Applicant had deliberately lied in the Record of Interview to avoid being implicated in the offending subject of Charge 2;
and where the jury were not directed as to how to approach these invitations from the Learned Prosecutor.
6 In our opinion, ground 3 is made out. It is thus necessary to set aside the conviction on charge 2 and enter a judgment of acquittal.
7 It is unnecessary to say anything concerning ground 4, since any consideration of its merits is wholly subsumed within ground 3.
8 Further, as will become clear, we would not uphold either of grounds 1 or 2.
9 BT's parents were close friends of the applicant and his wife.
10 The alleged offence founding charge 1 on the indictment - of which the applicant was acquitted - was said to have occurred when BT was seven or eight years old. BT and her family were allegedly visiting the applicant's home. BT's evidence was that while her mother was inside picking up something, the applicant gave her a 'piggy back', taking her around to the side of the house outside. The complainant said she stood on a chair in front of the applicant and the two looked at the stars. BT alleged that when they were doing this, the applicant put his hand down her pants, touched her on the vagina and inserted his finger.
11 Charge 2 concerned alleged events when BT was ten years old. The applicant was said to have been at BT's family home to put together a cupboard in her bedroom. BT's mother allegedly left the house to go and collect her father from work. The complainant was said to have been in bed asleep, and, while her mother was gone, the applicant woke her. Allegedly, he pulled down her pyjama pants and she pulled them back up again. It was further alleged that the applicant then pulled down her pants once more and then laughed, touched her vagina and inserted his finger. There was conflicting evidence relating to what happened when BT's parents allegedly returned home. On one version, BT's mother went to the open door of BT's bedroom; saw BT in the bed; saw the applicant standing over BT, beside her bed; and saw the applicant quickly leave the house. It will be necessary to return to the evidence relating to charge 2 in greater detail.
12 There was also some evidence relating to uncharged acts. BT's evidence was that during the period of the alleged offending, the applicant would touch her on her breasts and vagina at her home. She estimated that this occurred approximately five times. She said that the applicant would tell her that she was only little and that her parents would not believe her if she said anything.
13 It seems that sometime between September 2013 and March 2014, BT told her then boyfriend, 'AJ', of the applicant's alleged offending; and on 25 April 2014, she told her mother. On 6 May 2014, BT participated in a VARE.[4]
14 A little over a week later, on 14 May 2014, BT's mother covertly recorded a telephone conversation with the applicant. She told the applicant that BT had told her that he had sexually abused BT years ago. The applicant denied the allegations and described himself as 'speechless' and 'gobsmacked' with what was being said.
15 Police interviewed the applicant on 3 June 2014. He denied the allegations. In the course of the interview, the applicant denied ever putting up a cupboard in the complainant's house or in BT's bedroom; and he denied standing over the complainant and leaving the house when her mother walked in. The applicant agreed that he had stargazed with the complainant, although not in the location or on the occasion suggested. He also agreed that he had piggy-backed her from time to time, with his wife going 'crook' about it due to his bad back. The applicant also agreed that he had been in BT's room on two or three occasions when she had asked him to do something for her, such as looking at her school work.
16 BT's evidence concerning crucial events connected with the alleged commission of the offending embraced by charge 2 cannot be reconciled with the evidence of her mother, 'BA'. Faced with BA's evidence, a reasonable jury must have entertained a reasonable doubt as to the applicant's guilt. There were other weaknesses in the prosecution's case as well. The verdict of guilty on charge 2 cannot be permitted to stand.
17 As is the practice, BT's evidence in the trial consisted of her VARE, dated 6 May 2014 (Exhibit A), and a video recording of her evidence given at a special hearing on 16 June 2015. The VARE - produced when BT was aged 16 years - consisted of a videotaped interview conducted with BT by a police officer. Apart from formal matters, BT's evidence-in-chief in the special hearing in essence consisted of her acknowledging that she had viewed the VARE, and agreeing that every answer she gave in it was 'true and correct'. At the special hearing, BT was also cross-examined by counsel for the applicant, and re-examined by the prosecutor. Ultimately, BT's evidence before the jury consisted of the VARE and a video recording of her evidence in the special hearing. The jury were also provided with a transcript of both the VARE and BT's evidence in the special hearing.[5]
18 In BT's VARE - which, as we have said, stood as her evidence-in-chief - she recounted details of the uncharged acts allegedly performed by the applicant:
Around when I was seven or eight, a family friend of ours and his wife came over for a drink or something with my mum and dad. And around that time whenever my parents were out of the room ... he would come and talk to, like, me and my brothers. And around that, like, he would come up to me and, like, just games or something and I really didn't know what was going on but he kept touching me in areas that I didn't really feel comfortable with. And that went on for a bit and it got worse each time 'cause eventually he would start, like, pulling down my pants or something and every time I would try to pull them back up he would just laugh and start pulling them back down again. And I don't remember everything but I do remember once he had his hands down there and he started, like, to feel around and everything and I said, 'Stop', but again he still laughed. And eventually whenever I said I was going to tell my mum, he ... just said, like, 'As if they'd believe you'. And then, like, he started - I really don't remember everything, I remember that and the last time....
19 BT described the 'last time', which was the foundation of charge 2:[6]
... The last time that it happened was mum was, like, asked him to set up a cupboard or something in my room but he was meant to do it outside my room 'cause I was asleep at the time and during that, like, mum was going to pick up dad and he said, like, 'cause he kept coming into my room and he was trying to wake me up and my mum said, like, 'Can you do that outside?' and he goes, 'No, she'll be fine. Can you go - like, go pick up Bill?' which is my dad's name, And, like, after that I was awake and he started, like, touching me again, which I didn't know - like I knew what he doing at the time and I said, 'Can you please stop?' and he wouldn't. And by the time mum got home, she walked in and he didn't know, he was laughing and then he looked up and he was just really quiet and he stopped_. And I just looked over and I said to mum, 'He's been hurting me'_, and then he quickly stood up and said, 'I've got to go', and quickly left and it stopped completely.
Like, he kept poking me to wake me up. ... I remember, like, he was kneeling by my bed and he was just poking me and I turned over and he poked me again and then I woke up at that time and mum left and he would - like, he started working on the cupboard and, like, we were talking and then he came over to me and he started, like, touching me again. Like he would - like, somehow I was lying on the ground, I don't remember how, but then he started pulling down my pants again. And then I tried to pull them up and he continued to pull them back down every time I did. And that's all I remember from that. And then the last thing I remember is, like, him going quiet and then mum seeing it all.
21 BT also said that she did not remember how it occurred, but '[she] was laying on the ground for some reason'. She said that after he pulled her pants down, the applicant was 'feeling around' the 'vagina area and everything', and was 'poking' her 'inside and around'. Significantly, BT said that she remembered 'him going quiet because mum saw it'. BT also said that she was on her back, and the applicant was 'on his knees'. She was near her wardrobe. Her 'mum' did not say anything, 'but he said, "I've got to go", and he was stuttering'. Her mother, BT said, 'checked to see if I was O.K. and she was just asking me what he did'.
22 Later, BT said that these events occurred before her eleventh birthday, and that the 'first time it happened' she was either 'seven or eight'. She then went on to describe the events that were the foundation of charge 1, which she said happened when she was 'around eight'. BT said that she was at the applicant's house, standing on 'one of the old chairs that were ... near the garage' looking at the stars. The applicant had his hands down her pants 'feeling around' and 'poking' her inside her vagina.
23 It will thus be noticed that in the VARE, when describing the events relevant to charge 2, BT unequivocally asserted that her mother was an eyewitness to the offending, and that she made an immediate complaint to her mother, who then asked her what the applicant had done. BT said that she was lying on her back on the ground near her wardrobe, and the applicant was on his knees.
24 BT's evidence, under cross-examination on the special hearing, is also of significance. BT said that when her mother confronted her and the applicant, she (BT) was on her back, bare-legged, with her pyjama bottoms off; and the applicant was on his knees between her legs laughing while putting his finger in her vagina. BT said that, whilst in that position, she made an immediate complaint to her mother that the applicant was 'hurting' her. After the applicant left, her mother asked BT what the applicant had done. The relevant evidence is contained in the following passage:
Well, you describe, don't you, [the applicant] trying to wake you up?---Yes.
By poking you?---Yes.
And you describe ending up on the floor?---Yes.
On your back?---(No audible response.)
Have I got that right?---Yes.
And he is on his knees?---Yes.
And he is putting a finger in your vagina?---Yes.
So are you pyjamas on or off?---Obviously off.
So the light in your room is on?---Yes.
And the door is open?---Yes.
And you are lying on your back on the ground?---Yes.
And [the applicant] is kneeling between your legs?---Yes.
And your legs are bare?---Yes.
There are no pyjama bottoms on?---Yes.
And that is the state you were in when your mother confronted you?---Yes.
And you say [the applicant] is laughing?---Yes.
And then suddenly goes quiet?---Yes.
And when he suddenly goes quiet you look up and there's your mum?---Yes.
And you immediately tell your mum, 'He's hurting me'?---Yes.
And you do that a number of times?---Yes.
When [the applicant] leaves, your mum asks you what happened?---Yes.
Now, at that stage, had you climbed back into bed or were you still on the floor naked from the waist down?---I was back in bed. I had all my pyjamas on at that point.
But, at the time your mother sees you with the light on in your room, [the applicant] is kneeling between your two bare legs?---Yes.
Laughing?---Yes.
And when you're in that position, you tell your mum, 'He's hurting me'?---Yes.
25 A later portion of BT's evidence during cross-examination leaves no room for doubting that, on her version, her mother observed the applicant touching her vagina whilst she was on her back on the floor, and that she told her mother three times that the applicant had been 'hurting' her:
[BT], I was asking you about the episode with the cupboard and we should be precise about this. You say, I take it, that there was only ever one occasion which a cupboard was assembled in your room by [the applicant], is that right?---Yeah.
And only one occasion on which your mother appeared from picking up your dad in the doorway?---Yeah.
And one occasion on which you were on your back on the floor, in your room, minus your pyjama pants, in the context of a cupboard being built in your room?---Yeah.
What you told the police officer was that the last thing you remembered is [the applicant] going quiet and then 'Mum seeing it all', is that right?---Yeah.
So what you meant by that is that from your position laying [sic.] flat on your back on the floor in your room, you could see your mother in the doorway?---Yeah.
At that time you could see your mother in the doorway, there was some seconds that went by?---Yeah.
And in those seconds you would say that [the applicant] was touching your vagina?---Yes.
And then, at some stage, he stopped?---Yes.
Went quiet; is that right?---Yes.
And left?---Yes.
And that's why you say 'Mum saw it all'?---Yes.
And you immediately complained to your mum?---Yeah.
Is that right?---(No audible response.)
HER HONOUR: (To witness) 'Complained' is a word that lawyers use to say you said what happened?---I didn't exactly say what happened.
[COUNSEL]: Well, now, didn't you say to your mum, on your version, 'He's been hurting me'?---Yes.
HER HONOUR: Sorry, we just missed your answer then?---Yes.
Thank you.
[COUNSEL]: So you're telling your mum that, from your position, flat on your back on the floor?---Yes.
Correct; and not only did you tell her that, but you told her three times?---Yes.
And then is it the case that when [the applicant] leaves, your mum checks to see if you're okay?---Yes.
And she was just asking you what he did and everything?---Yes.
Is that right?---Yes.
26 In the course of re-examination, the prosecutor did not return to those parts of the cross-examination set out above.
27 BT's evidence concerning the events founding charge 2 is irreconcilable with the evidence of her mother, BA. In her evidence-in-chief, BA said that the applicant was erecting a cupboard in BT's bedroom. BT was in bed. She watched the applicant erect the cupboard until she went to pick up her husband at about 9.30pm, leaving the applicant to 'watch' the five children then in the house. BA said that she returned with her husband about half an hour later. She gave the following evidence of what occurred next:
What did you do when you returned?---Um, I took my shoes off and um, my husband went to his bedroom and, um, I saw the light on in [BT's] room so I thought I'd go down and have a look to see if the cupboard was finished and, um, yes.
You went to [BT's] bedroom?---Yes.
What did you see when you went to [BT's] bedroom?---Um, the cupboard was finished, the light was on and [the applicant] was standing over [BT's] bed.
Are you able to describe what you saw?---Yes, my daughter looking at me but I couldn't see anything. All I just saw was my daughter's eyes looking at me.
You said [the applicant] was over [BT's] bed?---Yes.
What part of the bed, do you say he was at, when you first saw him?---Wasn't near her face, it was in the middle part. It wasn't near her face because I could see her eyes.
Was he standing or what; what did you see?---Standing, yeah.
His feet were on the floor beside the bed?---Yep.
You say he was over [BT's] bed?---Yes.
What do you mean by that?---He was just over [BT's] bed, standing over [BT's] bed, yeah.
What about the cupboard?---The cupboard was made up.
All right, did you - you saw [the applicant] standing over [BT's] bed?---Yeah.
You saw [BT] looking at you?---Yeah.
What did you next see?---The next thing, [the applicant] walked passed me and, um, he walked out, went home.
Did he say anything to you as he left?---No, I don't think he did. I can't recall, but he left pretty quick.[7]
28 Self-evidently, BA's account in evidence-in-chief is crucially at odds with her daughter's. Further, BA gave evidence when cross-examined that, when she looked into the bedroom, BT was not lying on the floor and she did not hear BT say, 'He's hurting me'. BA agreed that, because of something that had happened to her at the hands of a family member when she was young, BA had always been hypervigilant as a parent, especially in relation to her daughter, BT. She agreed that, had she seen her daughter lying on the floor with her legs bare, and with the applicant on his knees, she would have raised the alarm, and, 'friendship or no friendship' she 'would have gone marching off to the police'. She would have involved her husband. Furthermore, she agreed that after the applicant left there was no discussion with BT about what he had done. In re-examination, BA repeated that there was no conversation with BT whilst [the applicant] was present, and 'no conversation with [BT] afterwards'.
29 Perhaps because he accepted that they were irreconcilable, in his final address to the jury the prosecutor made no attempt to reconcile the stark conflicts in the evidence of BT and her mother, or to suggest reasons why the evidence of BT should be preferred to that given by her mother.
30 As to the uncharged acts, in our view - contrary to a comment later made by the Judge during her charge to the jury[8] - the gist of BT's evidence (both in chief and under cross-examination) was not that the alleged events the subject of the uncharged acts had occurred mainly in BT's bedroom, but rather that they had allegedly occurred in one or other of the two lounge rooms in BT's house, on occasions said to have developed after all of the adults except the applicant and all of the (four) other children of the family (as it then stood) had (for unexplained reasons) left the room.
31 'HJ', the applicant's wife, gave evidence in the prosecution case. She said that there were occasions when she and the applicant went and had a glass of wine with BT's mother. All of the children were said to be 'always hassling him to go and play' and 'wanting piggy back rides'. The friendship with BT's family had ended in November 2012 arising from a falling-out concerning BT's brother's wedding. HJ said that BA would ask the applicant to do things for her, 'and that is usually what would happen on the nights [they] went over for a drink'. She did not have a conversation with BA, however, about sending her husband 'around to their place to assemble a cupboard for them'.
32 Police conducted a record of interview with the applicant on 3 June 2014. The applicant denied the offending, and denied ever having constructed a cupboard in BT's bedroom, although he said he had helped with gardening and had upholstered BA's dining chairs. He said that he and his wife would often visit BA and her husband 'a couple of times a month ... and sometimes even more' on a Friday night, but, as a result of a difficulty over a wedding invitation, they had not spoken for two years until BA contacted him 'a week or two weeks' before the police did. BA had made accusations and he was 'gobshocked' (sic). He had been in BT's bedroom 'a couple of times' when she had asked him to look at what she had done at school. Evidence was also adduced from the informant that the applicant had no prior convictions. His good character bears on the assessment of the credibility of his denials in the record of interview.[9]
33 The applicant had also denied the offending in the course of a 'pretext' conversation with BA. Police had provided BA with a digital voice recording device. She telephoned the applicant on 14 May 2014, and accused him, by reference to what BT had recently told her, of having sexually abusing BT. The applicant denied the allegation, and said he 'would sooner shoot [himself] than see someone do that'.
34 The police informant gave evidence of having inspected and photographed the cupboard in question, at the request of the defence, just before the end of the trial. She agreed that the cupboard had been assembled with staples of a kind not suitable to be affixed with a hand-held stapler (that is, of a kind that would have required the use of a power tool). This evidence supported the applicant's denial, in his record of interview, that he had assembled the cupboard.
35 During the trial there was a controversy as to whether BA's husband's work hours were consistent with the prosecution's contention that BA had absented herself for about half an hour at about 9.30pm on the night in question to pick him up from work. BA's husband was not, however, called to given evidence on this (or any other) topic.
37 It seems that, on 25 April 2014, BT and her mother had a conversation about BT cleaning up her bedroom, during which BT became very angry. She said to her mother, 'You know why I'm like I am', prompting BA to respond, 'What do you mean?'. BT said that the applicant had 'abused' her, and had touched her 'down there'. BT said to her mother that she knew her mother had walked into the room - referring to the alleged incidents founding charge 2 - and that this was the last time that the applicant had abused her.
38 'AJ', previously BT's boyfriend, gave evidence that BT told him in early 2014 that an old family friend had sexually assaulted her when she was younger. BT was upset and crying during the conversation. AJ's understanding being that she had not previously done so, he told BT that she should tell her mother. In the days following the conversation, he observed that something was bothering BT and she started to fall behind at school.
39 Having made our own independent assessment of all of the evidence, we are firmly of the view that it simply was not open to the jury - on the whole of the evidence - to convict the applicant.[12] We entertain a deep-seated doubt as to the applicant's guilt. It is one that the jury should have - indeed, must have - had. As was said in the joint judgment (Mason CJ, Deane, Dawson and Toohey JJ) in M:[13]
... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
40 Subsequently, in SKA,[14] the High Court again considered the appellate task when the Court is faced with a submission that a verdict is unsafe and unsatisfactory. It was held to be wrong for the appellate court to concern itself with 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence'.[15] French CJ, Gummow and Keifel JJ said that the appellate court 'was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged'.[16] There is nothing to the contrary in the more recent decision of the High Court in Baden-Clay.[17]
41 In our view, BT's account is fundamentally undermined by her mother's; and it is seriously at odds with what occurred or, more precisely, with what did not occur in the moments, hours, days, weeks and years following the occasion in question. BT was unequivocal in her evidence. According to BT, her mother saw the applicant interfering with her. She made an immediate complaint to her mother. Her mother later asked her what the applicant had done. In our opinion, it is absolutely unthinkable that BA would not have intervened immediately if, as BT asserted, she was lying on the floor unclothed from the waist down, and the applicant was kneeling between her legs - laughing - with a finger in her vagina. It is also unthinkable that BA would not have taken immediate action if BT had told her, as BT claimed to have, that the applicant was 'hurting' her. Moreover, given BT's detailed description, this is not a case which leaves room for mistakes of perception. At the very worst for the applicant, BA's evidence was that she saw the applicant standing by the applicant's bed. She was clear on the fact, however, that her daughter was in the bed, not lying on the floor. BA was equally clear that her daughter had made no contemporaneous complaint to her, and they had not discussed any suggested interference. Again, given the context, it is unthinkable that BA could make innocent mistakes of recollection about those matters. It is also unthinkable that, if BA had seen what BT claims she saw, BA and her husband could have remained on close, friendly terms with the applicant and his wife for the following five years, as they did.
42 We accept, of course, that a jury is not bound to prefer the evidence of one witness over another, and, generally speaking, can decide how much of the evidence of a witness to accept, and how much to reject. But a jury is not entitled to reject the evidence of a witness capriciously. In order to reject evidence - particularly where it is exculpatory - there must be a rational basis for doing so. The prosecution was unable to point to any rational basis upon which the jury was entitled to reject BA's evidence as to what she did not see, other than the simple fact that it was inconsistent with BT's evidence. It is principally that startling inconsistency, however, which - in the absence of any rational explanation - casts real doubt on the reliability and credibility of BT's evidence.
43 Apart from the fact that BA's evidence places the applicant in BT's bedroom - albeit in very different circumstances to those described by her daughter - there is little if any support for BT's evidence. We do not ignore the 'complaint' evidence - what BT told her boyfriend in early 2014, and her mother in April of that year - which, as a matter of theory can be used to support her credibility and, by virtue of s 66 of the Evidence Act 2008, also constitutes evidence of the fact. In our view, however, given the circumstances in which the complaints were made, and further given that they were made years after the alleged events, the evidence carries little weight. Nor do we ignore BT's evidence of uncharged acts. We similarly regard that evidence, however, as being of little weight.[18]
44 Finally, we should observe that, although the applicant did not give evidence, this is not a case where his failure to give evidence impinges on the assessment of whether the relevant verdict is unsafe and unsatisfactory.[19] It will be remembered that the applicant denied any offending when confronted by BA in the 'pretext' conversation. He also made clear denials of any impropriety when interviewed by police. Being a man with no prior convictions, the applicant is entitled to have his good character weighed in the balance in any assessment of those denials. Further, the evidence of the police informant concerning the necessary manner of construction of the cupboard supported the applicant's denial of the prosecution's suggestion that he had assembled a cupboard in BT's bedroom while she remained sleeping.
45 The jury's advantage in seeing and hearing the evidence is not capable of resolving the doubts that we harbour as to the applicant's guilt. In our view, the manner in which BT gave her evidence in the VARE and on the special hearing simply cannot overcome the lack of credibility attaching to it.
46 The verdict on charge 2 is unsafe and unsatisfactory. There is, in our view, a significant possibility that an innocent person has been convicted. The conviction must be set aside.
Ground 1 - Failure to direct on delay in complaint
47 Throughout June 2015, when the applicant's trial took place, s 61(1)(b)(ii) of the Crimes Act 1958 prescribed the directions that a trial judge might give when there was a suggestion that a complainant in a case of alleged sexual offending had delayed in making a complaint. At the time that the trial was conducted, s 61 of the Crimes Act 1958 provided[20] (so far as relevant):[21]
61 Jury warnings
(1) On the trial of a person for [a relevant sexual offence] -
(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge -
(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and
(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and
(iii) must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.
...
(2) Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
(3) Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.
48 A week after the applicant was found guilty, s 61 was repealed by s 79 of the Jury Directions Act 2015, with effect from 29 June 2015. Axiomatically, however, the applicant was entitled to be tried according to the law as it stood when he faced trial, not according to what it was to become.
49 The applicant's essential complaint under cover of ground 1 was that the judge - as the law permitted her to do at the time - should have given a Kilby[22] direction, instructing the jury that they could use BT's delay in complaining as casting doubt upon the credibility of her evidence. During her charge, the judge gave a direction in accordance with s 61(1)(b)(i), but did not give what counsel described as a 'balancing' direction. In developing his arguments, counsel drew attention to Svajcer,[23] where Redlich JA said:[24]
Section 60(1)(b)(i) provides that where delay in complaint is in issue, the trial judge must inform the jury that 'there may be good reasons' why a complainant may delay in making such a complaint. Section 60(1)(b)(ii), has a different focus. In certain prescribed circumstances, it preserves the obligation of the trial judge to warn the jury that delay in making complaint may be relevant in assessing the credit of the complainant. The Act is concerned with the circumstance where evidence has been given or a suggestion made during the trial that there was delay in making complaint as to an offence. The trial judge is not permitted to give such a warning unless an application is made on behalf of the accused that a warning be given and the judge is then is [sic] satisfied that the complainant's credibility is sufficiently affected by the delay so as to justify giving such a warning.
... But the mere fact of a lapse of time between the alleged offence and the making of a complaint will not necessarily be such as to permit reasoning that the complainant's credit is affected. It is necessary for the trial judge to consider how the period of time between the relevant offence and the making of the complaint, might affect the jury's assessment of the credibility of the complainant. The lapse of time will become relevant to an assessment of the complainant's credit where it may be viewed as inconsistent with aspects of the complainant's account.
50 The applicant's counsel submitted that BT's credit was crucial. He submitted that there was evidence that BA had suffered sexual abuse in her earlier life, and had impressed on her daughter that she should speak up if anything similar ever happened to her. In such circumstances, had BT been the subject of sexual interference, she would have complained without delay. Her failure to do so until April 2014 - if, of course, BA's evidence were to be accepted - had the potential to impinge significantly on BT's credibility.
51 Furthermore, counsel submitted that, in refusing to give a Kilby direction, the judge had misdirected herself. He submitted that s 14 of the (since repealed) Jury Directions Act 2013 - which the judge purported to invoke - had no application, since s 9(b) made plain that s 14 did not affect 'a direction that the trial judge is required to give, or not to give, to the jury under any provision of this or any other Act'. In other words, the judge was bound to give a direction under s 61(1)(b)(ii) if the judge was 'satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning'. The judge also misdirected herself, so it was submitted, by taking into account the legislature's intention as evinced by the impending Jury Directions Act 2015.
52 In our view, a Kilby direction ought to have been given. There was sufficient evidence tending to suggest that BT's credibility was so affected to justify the giving of such a warning. Notwithstanding that this is so, however, we have concluded that there has been no substantial miscarriage of justice. The criticisms of BT's credit were fully exposed for the jury's consideration. A direction of the kind sought is unlikely to have materially affected the jury's consideration of the evidence. In this regard we note that the judge did give detailed forensic disadvantage and reliability directions based on delay and the passage of time.
Ground 2 - Failure to direct on pretext conversation and alleged lies
54 Under cover of ground 2, counsel submitted that justice had miscarried because the prosecutor in his final address suggested to the jury that the applicant had made an 'adoptive admission' in the pretext conversation with BA, and had suggested that the applicant had lied, yet the judge gave no directions on these matters.
55 The short answer to this ground is that, on a fair reading of what the prosecutor said, in our view he neither directly nor indirectly made the suggestions attributed to him. If we are wrong about that, however, we note that the applicant's counsel, imbued with the atmosphere of the trial, sought no directions from the trial judge.
57 As we have said, given our conclusions on ground 3, it is unnecessary to
58 For these reasons, we concluded that the conviction on charge 2 could not stand, and that it was necessary to set aside the conviction and enter a judgment of acquittal.
59 On 15 September 2016, the Court unanimously granted the applicant leave to appeal. By majority (Priest JA and Cavanough AJA) the Court allowed the appeal, set aside the applicant's conviction and ordered that a judgment of acquittal be entered. The Court said it would publish its reasons at a later date. While I agreed that leave to appeal should be granted, in my view the appeal should have been dismissed. What follows are my reasons for these conclusions.
60 I have had the benefit of reading the joint reasons for judgment of Priest JA and Cavanough AJA. I agree, for the reasons given by their Honours, that the applicant's grounds 1 and 2 must be rejected.
Ground 3: Was the verdict unsafe and unsatisfactory?
61 It is ground 3, the question of whether the jury's verdict was unsafe and unsatisfactory, on which I part company from the majority. There is no doubt that there were significant discrepancies between the evidence of the complainant, BT, and the evidence of the complainant's mother, BA. The question to be asked when considering whether a verdict is unsafe and unsatisfactory is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the
jury must, as distinct from might, have entertained a doubt about the accused's guilt.[26] The reasons advanced by the majority in this case for concluding that the jury's verdict was unsafe and unsatisfactory are reasons why the jury could have had a reasonable doubt. Such a conclusion is, of course, not sufficient to overturn the jury's verdict. That said, in my respectful view, the matters identified in the majority judgment, while showing that the issue is sufficiently arguable to justify a grant of leave to appeal, do not lead to the conclusion that the jury must have entertained a doubt or that the appeal should be allowed.
62 The jury were correctly told by the trial judge that it was up to them to determine how much of a particular witness's evidence they chose to accept. The judge said:
It is up to you to decide how much or how little of the testimony or evidence of any witness you will believe or rely on.
You may believe all or some or none of a witness's evidence. It is also for you to decide what weight should be attached to any particular evidence, and when I say 'weight', I mean the extent to which the evidence helps you to determine the relevant issues.
In assessing the witnesses' evidence, matters which may concern you include their credibility and reliability. Credibility concerns honesty. You would ask yourself, 'Is the witness telling me the truth?'. Reliability may be different. A witness may be honest, but have a poor memory or be mistaken.
It is for you to judge whether the witnesses are telling the truth, and whether they correctly recall the facts about which they are giving evidence. There may be other reasons why you find a witness unreliable.
63 It is trite that this Court cannot know what path of reasoning the jury (or individual jurors) may have engaged in. Some observations, however, can be made. First, the complainant was approximately ten years of age at the time of the alleged offending. The complainant's evidence was, however, not first given until some six years later, with cross-examination occurring a year after that. The jury may well have reasoned that, while the complainant might have been shown to be wrong in respect of some of the detail identified in the majority reasons, the complainant was unshaken in her core allegation. Plainly, in compliance with the judge's charge, the jury could have rejected aspects of the complainant's evidence, while accepting other parts, including a critical or core element.
64 Secondly, it was open to the jury to regard some of the complainant's mother's evidence as, at least, improbable; alternatively, if probable then, perhaps, supportive of the complainant. For example, in evidence-in-chief, the complainant's mother gave the following answers to the following questions:
You went to [BT's] bedroom?---Yes.
What did you see when you went to BT's bedroom?---Um, the cupboard was finished, the light was on and [the applicant] was standing over [BT's] bed.
Are you able to describe what you saw?---Yes, my daughter looking at me but I couldn't see anything. All I just saw was my daughter's eyes looking at me.
You said [the applicant] was over [BT's] bed?---Yes.
What part of the bed, do you say he was at, when you first saw him?---Wasn't near her face, it was in the middle part. It wasn't near her face because I could see her eyes.
Was he standing or what; what did you see?---Standing, yeah.
His feet were on the floor beside the bed?---Yep.
You say he was over [BT's] bed?---Yes.
What do you mean by that?---He was just over [BT's] bed, standing over [BT's] bed, yeah.
What about the cupboard?---The cupboard was made up.
All right, did you - you saw [the applicant] standing over [BT's] bed?---Yeah.
You saw [BT] looking at you?---Yeah.
What did you next see?---The next thing, [the applicant] walked past me and, um, he walked out, went home.
Did he say anything to you as he left?---No, I don't think he did. I can't recall, but he left pretty quick.
65 Thirdly, some of differences between the complainant's evidence and her mother's evidence are capable of being reconciled on the basis that, while BA was giving evidence of what she actually saw and heard, the complainant gave evidence of what she perceived or believed her mother saw and heard. Moreover, these were the perceptions of a ten-year old child recounted years later. It is not an infrequent occurrence that one witness will give evidence of conveying a matter to another witness, only to have the other witness say that no such matter was in fact conveyed.
66 The majority have concluded that, having made their own independent assessment of all of the evidence, they are firmly of the view that it was not open to the jury - on the whole of the evidence - to convict the applicant. The whole of the evidence led at trial includes the pretext telephone conversation that the complainant's mother was persuaded to engage in with the applicant. The complainant's mother's evidence needs to be assessed in the light of this evidence as well. In the pretext conversation, the complainant's mother is recorded as saying:
I talked to my daughter ... and she has told me that you sexually abused her years ago ... She told me that and she was very upset. She told me you abused her years ago, and the last time you did was when you made up my cupboard and then you left ... and that was apparently the last time and, yeah, I'm - I'm absolutely devastated.
67 Quite how the jury might have synthesised that evidence with the complainant's mother's evidence that she did not see anything of the kind that the complainant gave evidence of her mother seeing is a matter about which this Court can only speculate. The short point is that this issue, together with the question of what to accept and not accept so far as the evidence called at trial was concerned, was quintessentially one for the jury. It was, after all, the jury who had the benefit of hearing and seeing all of the evidence, including the now critical evidence of BA.[27]
68 As has been said most recently by the High Court, in our system of criminal justice in relation to allegations of serious crimes tried by jury, it is the jury that is the constitutional tribunal for deciding issues of fact.[28] This Court must not substitute trial by an appeal court for trial by jury.[29] Having conducted my own independent assessment of all of the evidence, I am unable to conclude that the jury must have entertained a doubt about the applicant's guilt in respect of charge 2.
69 For these reasons, while the question of whether the jury's verdict was unsafe and unsatisfactory was sufficiently arguable to justify a grant of leave, in my view, ground 3 should have been rejected.
70 In ground 4, the applicant contended that his acquittal in respect of charge 1 was inconsistent with his conviction in respect of charge 2. Having regard to the majority's conclusion with respect to ground 3, the majority were not required to deal with ground 4. In view of my conclusion in respect of ground 3, I am required to deal with ground 4.
71 In MacKenzie v The Queen,[30] Gaudron, Gummow and Kirby JJ set out six general propositions in relation to inconsistent verdicts. It is sufficient to refer to their Honours' third and fourth propositions:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
72 In the present case, it is not reasonably arguable that there is any inconsistency between the jury acquitting the applicant on charge 1 and convicting him on charge 2. The complainant's evidence could easily have been regarded by the jury as less certain in respect of charge 1 than it was in respect of charge 2. Moreover, the complainant was some years younger when the events the subject of charge 1 were alleged to have occurred. Further, the jury might have concluded that the complainant's mother's evidence provided additional support in respect of charge 2 as to the location and circumstances about which the complainant gave evidence. It follows, that ground 4 must be rejected.
73 For these reasons, while I agreed that leave to appeal should be granted in respect of ground 3, I did not, and do not, agree with the majority that the appeal ought be allowed.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
[4] Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367.
[5] The judge directed the jury that the transcripts were not evidence, and that 'the evidence is what you hear'.
[6] Emphasis added to this and passages following.
[7] In cross-examination, BA gave the following evidence:
Just in terms of conversation between you and [the applicant] that you say you recall; you say there was no conversation. He ups and leaves; is that right?---As far as I know, I know that he just - he might have said goodbye as he raced out the door but it wasn't much.
You've previously said that he said, 'See you later'?---Yeah, something like that when he raced out the door, yeah.
[8] The trial judge had previously debated this with counsel for the applicant. In our view, counsel for the applicant was substantially correct about this evidence and her Honour was substantially wrong.
[9] R v Aziz [1996] AC 41, 52; Greensill v R [2012] VSCA 306; (2012) 37 VR 257, 282 [108] (Redlich, Osborn and Priest JJA) ('Greensill').
[10] See Evidence Act 2008, s 66.
[11] See Clay v The Queen [2014] VSCA 269; (2014) 43 VR 405; Pate (a pseudonym) v The Queen [2015] VSCA 110; Boyer (a pseudonym) v The Queen [2015] VSCA 242.
[12] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ('M'). See also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Hayne J) ('Libke').
[14] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. See also Libke, 596-7 [113]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill, 276-7 [81]-[83].
[17] R v Baden-Clay [2016] HCA 35. See especially at [65]-[66].
[18] See and compare IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382, 394 [62] (French CJ, Kiefel, Bell and Keane JJ).
[19] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 228; R v Emmerson (unreported, Court of Appeal, 12 September 1997), 1-2 (Hayne JA); Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, 64 [34], 73 [62] (Gaudron, Gummow, Kirby and Hayne JJ). See also R v Baden-Clay [2016] HCA 35, [49]-[57].
[20] See now, and compare, Jury Directions Act 2015, s 52 (4), which now provides for directions in cases of delayed complaint as follows:
(4) In giving a direction under this section, the trial judge must inform the jury that experience shows that -
(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and
(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and
(c) delay in making a complaint in respect of a sexual offence is a common occurrence.
[22] Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460.
[23] Svajcer v The Queen (2010) 200 A Crim R 587.
[24] Ibid 590 [14]. The reference to s 60(1)(b)(i) and (ii) in the first and second sentences of this passage were evidently intended to be a reference to the former s 61(1)(b)(i) and (ii) of the Crimes Act 1958.
[25] Ibid 591 [17] (footnote omitted).
[26] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]. See further, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
[27] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
[28] R v Baden-Clay [2016] HCA 35 [65].
[30] (1996) 190 CLR 348 ('MacKenzie') (citations omitted).
Tandy (a pseudonym)
The Queen [2016] VSCA 229
(2014) 43 VR 405
(1994) 181 CLR 487
(2008) 18 VR 644
(2007) 230 CLR 559
(2011) 243 CLR 400
(2016) 330 ALR 382
(1993) 178 CLR 217
(2001) 205 CLR 50
(1973) 129 CLR 460
(2012) 37 VR 257
(1996) 190 CLR 348