Thompson v The Queen: The Queen v Thompson [2016] ACTCA 12

Decision: The appeal against conviction is upheld. The convictions are set aside and a new trial is ordered. The Crown appeal against sentence is dismissed.

Catchwords: CRIMINAL LAW – Particular Offences – offences against the person – unlawful confinement – aggravated burglary. APPEAL – Appeal to the Court of Appeal – appeal against jury verdict – whether verdicts were unsafe and unsatisfactory – whether the trial judge was required to provide a warning in accordance with s 38E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether leave should be granted to argue a ground of appeal where no objection was taken to at trial – whether the appeal should be dismissed pursuant to s 37O (3) of the Supreme Court Act 1933 (ACT) – appeal upheld – matter remitted to the Supreme Court for retrial.

Legislation Cited: Court Procedures Rules 2006 (ACT) r 5531 Crimes Act 1958 (Vic) s 568 Crimes (Sentence Administration) Act 2005 (ACT) Evidence Act 1977 (Qld) ss 21A, 21AW Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 38E, 43, 44, 45, 46, 47 Evidence (Closed Circuit Television) (Amendment) Act 1994 (ACT) s 6 Evidence (Closed Circuit Television) Ordinance 1989 (ACT) s 5 Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) Justice and Community Safety Legislation Amendment (No 3) Act 2000 (ACT) Legislation Act 2001 (ACT) ss 138, 139 Magistrates Court Act 1930 (ACT) s 90B Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) s 38E Supreme Court Act 1933 (ACT) ss 37E, 37O, 68D Cases Cited: Baini v The Queen (2012) 246 CLR 469 Filippou v The Queen 323 ALR 33 Klobucar v The Queen [2014] ACTCA 6 M v The Queen (1994) 181 CLR 487 R v Bisht (2013) 234 A Crim R 309 R v Coss [2015] QCA 33 R v DM [2006] QCA 79 R v HAB [2006] QCA 80 R v Hellwig (2007) 161 A Crim R 489 R v Michael (2008) 181 A Crim R 490 R v TN (2005) 153 A Crim R 129 Weiss v The Queen (2005) 224 CLR 300

Parties: Andrew Francis Thompson (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) The Queen (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)

Representation: Counsel Mr S Odgers SC (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) Mr J White SC (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)

Solicitors Kamy Saeedi Law (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) ACT Director of Public Prosecutions (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)

File Numbers: ACTCA 66 of 2014; ACTCA 16 of 2015

Decision under appeal: Court: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 8 December 2014 Case Title: R v Thompson Citation: [2015] ACTSC 69 Court File Numbers: SCC 50 of 2014; SCC 78 of 2014

THE COURT:

1. On 8 December 2014, the appellant (on file ACTCA 66 of 2014) was found guilty by a jury after a trial of one offence of unlawful confinement and one offence of aggravated burglary. He now appeals from those verdicts on the grounds:

(a) that the verdicts were unsafe or unsatisfactory; and

(b) that the trial judge failed to provide a warning to the jury in accordance with s 38E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).

2. On 20 March 2015, the trial judge sentenced the appellant for the offences of aggravated burglary and unlawful confinement. He also sentenced the appellant for one offence of common assault and one firearm offence, being related summary charges transferred to the Supreme Court by virtue of s 90B of the Magistrates Court Act 1930 (ACT) and s 68D Supreme Court Act 1933 (ACT). The sentences imposed by the trial judge were:

(a) on the charge of aggravated burglary: imprisonment for one year and nine months commencing 9 May 2015;

(b) on the charge of unlawful confinement: imprisonment for 12 months commencing 9 February 2015;

(c) on the charge of common assault: imprisonment for two months commencing 9 February 2015; and

(d) on the firearm offence: imprisonment for one month commencing 9 February 2015.

3. The aggregate sentence therefore imposed was one of two years imprisonment commencing on 9 February 2015 and expiring on 8 February 2017. The trial judge ordered that this sentence be suspended after 10 months and required the appellant to sign an undertaking to comply with offender obligations under the Crimes (Sentence Administration) Act 2005 (ACT), thus imposed under a Good Behaviour Order.

4. The Crown has filed a cross-appeal alleging that the sentences imposed on the appellant were manifestly inadequate. As we are satisfied that the appellant’s conviction should be set aside and a new trial ordered it is unnecessary to consider the cross-appeal.

5. The appellant’s appeal is brought under s 37E of the Supreme Court Act 1933 (ACT). The powers of this Court on such an appeal are found in s 37O, which relevantly provides:

37O Orders on appeal (1) The Court of Appeal has the following powers in relation to the order appealed from: (a) to confirm, reverse or amend the order; (b) to give any order it considers appropriate, or refuse to give an order applied for; (c) to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate; (d) to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered; (e) to order a new trial, with or without jury, on any appropriate ground; (f) to award enforcement of any order, or remit the proceeding to the court constituted by a single judge for enforcement of the order. (2) The Court of Appeal on an appeal against conviction must— (a) allow the appeal if it considers that— (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or (ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or (iii) on any other ground there was a miscarriage of justice; or (b) dismiss the appeal. (3) However, the Court of Appeal may also dismiss an appeal against conviction if it considers that— (a) the point raised by the appeal might be decided in favour of the appellant; but (b) no substantial miscarriage of justice has actually occurred.

6. It is convenient to consider ground (b) first, as this is the ground which is to be upheld. As the trial judge was not asked to give the jury a direction in accordance with s 38E of the Act by counsel then appearing for the appellant, the appellant also needs to be granted leave to rely on ground (b) under r 5531 of the Court Procedures Rules 2006 (ACT). For the reasons that follow, this leave should be granted. A consequence of upholding this ground is that there must be a new trial.

7. It is nevertheless necessary to consider ground (a), because, if it were appropriate to uphold that ground, the appellant would be entitled to be acquitted.

8. Before considering the grounds of appeal in turn, it is useful to first give a summary of the case at trial.

The evidence at trial

The complainant’s evidence

9. The complainant gave evidence that she and the appellant had a romantic relationship for approximately six weeks commencing at the end of March 2013. Once the relationship came to an end, the complainant and the appellant stayed in contact over Facebook messenger and text message. The complainant went overseas for approximately two and a half months from the end of May to mid August. During that time the appellant offered to check on the complainant’s apartment. She gave him a key to facilitate this, which she recovered upon her return. She testified that the appellant was reluctant to return the key to her. In October 2013, the complainant met with the appellant at his request, and she made it clear to him that she no longer wanted any contact with him. She described herself as being unkind to the appellant and “bitchy” during this interaction. She testified that she got “fed off” with the appellant and said:

If I ever see you on the street, I’m going to go the other way. This is the last time you’re ever going to see me, like, this is so over, just leave me alone. I’m so sick of this.

10. Following this conversation, the complainant blocked the appellant on Facebook and deleted the appellant’s phone number. The complainant testified that, on both of the occasions that she met the appellant after her overseas return, he had requested to meet at her house. The complainant and the appellant did not have any further contact until the day of the incident, 4 November 2013, which is the subject of the appellant’s convictions.

11. The complainant gave evidence that on 4 November 2013 she returned to her apartment in Lyneham at approximately 4.00 pm. Her apartment was locked, so she unlocked it and let herself in. She then opened the balcony door to let some air through and began to undress in her bedroom. She was unable to locate an item of clothing, so she went into the spare bedroom, where she did her laundry, wearing only her underpants. As she was rummaging through her clothes, she noticed the door to that room was moving, which caught her eye. It was then that she saw the appellant hiding behind the door with a gun and wearing medical gloves. She testified that the appellant had the gun in his left hand and by medical gloves she meant “white plastic doctors gloves”. The complainant said that the appellant then tackled her on to the spare bed in that room. She said that he had covered her mouth and told her not to scream. She described feeling the cold metal of the gun on her chest.

12. Following the tackle to the bed, the complainant said that the appellant then put the gun down next to the bed on the floor and rolled off her. She said that, as this was happening, the appellant was repeating, “I’ve lost my shit”. She described attempting to ascertain why the appellant was upset. She gave evidence that he told her he was not sleeping well and not doing well at his job. She suggested that he could call Lifeline or beyondblue, or a friend or a family member could pick him up. The complainant said that she remained on the bed while this exchange was taking place and the appellant was in the doorway to the room. At some point during this exchange, she asked whether she could cover herself with a towel that was on top of the laundry pile. She later put on clothes. The appellant told the complainant that the gun was for him and not for her.

13. At some point later, the complainant stood up; as she did so the appellant moved to get the gun from next to the bed. The complainant said that she then backed away from the appellant as he was holding the gun and stood in the doorway to her bedroom, so as to face the living room. The appellant then placed the gun on the floor, next to the coffee table in her living room. She gave evidence that she and the appellant were conversing for a lengthy period, and they ultimately sat down at the kitchen table. During this conversation the appellant referred to his “dilemma” that if either he or the complainant left, the complainant would go to the police. It was the complainant’s evidence that the appellant had mentioned taking photographs as assurance that the complainant would not go to police, and the complainant took this to mean explicit photographs. No photographs were taken. At some point during their conversation, the appellant informed the complainant that the gun was not loaded and later told her that it was not a real gun.

14. The complainant testified that the appellant took off his latex gloves prior to leaving her apartment and put them in the right-hand pocket of his “hoodie”. She also gave evidence that the appellant took the gun from its position on the floor of the living room next to the coffee table and placed the gun in a Woolworths’ bag. He took the bag with the gun inside when he left. She said that he took this bag from the spare room and came back out to where she was standing in the living room. He then gave the complainant a hug, and a kiss on the side of her head while he was hugging her, and asked if he could check up on her later. She said in response, “No. I’m still figuring things out. No, like, no”. She then opened the door and asked him if he was ready to leave, and he said, “Yes”. The complainant said she locked the door after he left. She then “Googled” the location of the closest police station so that she could leave her apartment and go to the police station, as she was afraid the appellant may return. She then attended the City Police station and spoke to the officer on duty, First Constable Julie Alchin. The complainant returned to her apartment after the incident, accompanied by police, and had the locks changed to her apartment the next day. The complainant testified that she did not give permission to the appellant to go into her house on 4 November, nor did she give him permission to stay in her house.

15. The complainant denied under cross-examination that the appellant had knocked on her door and that she subsequently stepped back from the door, allowing him to enter her apartment. She also denied that she had concocted her evidence about the appellant hiding behind the door, jumping out at her with a gun and holding her down. The complainant agreed that the appellant spoke of suicide on 4 November, although disagreed that the appellant expressed concern about being hospitalised due to his condition. She also agreed that she did not tell police about any marks, bruises, scratches or anything of that nature nor did she examine her own body for any such marks that she may have suffered as a result of the attack.

16. The complainant agreed that during the period in which she was dating the appellant, she had locked herself out of her apartment. To assist her in gaining access to her apartment, the appellant had climbed up on the balcony, pushed the flyscreen wire away from the screen door, allowing him to access the apartment, as the balcony sliding door was unlocked. She agreed that, soon after, the appellant had fixed the flyscreen.

17. The complainant gave evidence that she had very limited experience in terms of handling or seeing firearms in real life. She said that, when she was 17 and on exchange in Austria, she was taken to a hunting club by her host family, and that was the only time she had held what she described as a hunting rifle. She gave evidence that this was her only real life experience with a gun. She described the gun the appellant had as follows:

It had a dark tan handle and one of the identifying features that I could distinguish was that the end looked wider than the rest of the gun and the closest thing I could compare it to would be like in the movies where they had a silencer.

18. The complainant also sketched the firearm that the appellant had when she attended the police station on the night of the incident. This sketch was tendered at the trial. She described her view of the gun as not very clear and that she tried not to look at it during the course of the incident.

19. She testified that the appellant had told her in the early stages of their relationship that he was a licensed shooter. She said that she was aware that he had a number of guns, but she could not recall what those particular guns were. She said that, when she went to his parents’ house, while they were still dating, he had pointed out the gun safe to her in their pool room and she considered it to be quite large.

Senior Constable Tozer’s evidence

20. Senior Constable Tozer testified that he spoke with the complainant at the City Police station on the night of the incident. He said he did not speak with her for all that long, however, she appeared upset and looked as if she had been crying. He testified that the complainant described the firearm to him by using her hands to indicate the length and that he formed the impression that the firearm was a shortened long arm.

21. Senior Constable Tozer then attended the appellant’s house in an armoured vehicle and observed the appellant leaving his house and entering his car. It was at this point that the warning lights on the vehicle were activated and the armoured car was moved into a position where its nose came to face the nose of the appellant’s vehicle. He testified that, as soon as the police vehicle stopped, he exited the vehicle, identified himself as a police officer and called for the appellant not to move. The appellant then exited his car and ran. Senior Constable Tozer lost sight of him momentarily, however, when he saw movement he lunged towards the appellant, knocking him to the ground. He then arrested the appellant. He agreed that he searched the appellant and found that he had no firearms or any other weapons. He testified that Constable Sternbergen and Constable Whittaker with a police dog were also at the scene.

Constable Lewtonski’s evidence

22. Constable Lewtonski gave evidence that he executed a search warrant on the appellant’s residence with a number of other police officers on 5 November 2013, the day after the incident. As part of the search warrant being executed, photographs were taken of the appellant’s house. Those photos were subsequently tendered as evidence in the trial. Two letters written by the appellant were seized during this search, to which we will later refer in greater detail. Additionally, two boxes of white latex gloves were photographed, one under the kitchen sink of the premises and another in the garage. The appellant’s father told Constable Lewtonski that the gloves under the sink were for his wife’s personal use and the ones in the garage, which he referred to as the workshop, were his son’s. A pair of white latex gloves was also found in a makeshift bin in the workshop, which were seized and tendered as evidence in the trial.

23. The pool room of the premises was also searched; it contained two gun lockers. In the gun locker to the left, a right-handed firearm with a tanned handle was seized. It was the appellant’s evidence that the gun locker to the left was his father’s and his gun locker was to the right. The appellant’s father told the Constable that he did not have access to his son’s safe and that his son did not have access to his safe. The police, in accordance with the search warrant, were searching for a firearm with a tanned handle and the firearm, which we have described as being seized, was the only firearm found that matched this description. Constable Lewtonski’s recollection of the firearm when it was seized was that it was in an unloaded state with no magazine or round in the chamber, but was otherwise in an operative condition. The firearm was tendered as evidence. The only handguns that were found on the appellant’s premises were those located in the safes.

First Constable Alchin’s evidence

24. As at 4 November 2013, Senior Constable Alchin was a First Constable with the AFP and was the case officer with respect to this case. We will refer to her as First Constable Alchin in these reasons. First Constable Alchin was at the front desk of the City Police Station when the complainant came into the Station. She described the complainant as distraught. When she asked the complainant what was wrong she was informed that the complainant had just come from her place and her ex-boyfriend had been there with a gun. As a result of this conversation, First Constable Alchin took the complainant to a secure area in the police station and spoke with her. This interview resulted in the complainant signing a police statement. First Constable Alchin gave evidence that she spoke to the complainant again on 6 November, as she had asked her to come back. This took the form of an audio recorded interview.

25. As the case manager, First Constable Alchin submitted the handgun for forensic testing. The result of this was that a partial DNA profile was obtained, which contained insufficient information to determine the source of that partial DNA profile. An AFP Biological Criminalistics Interim Results Form was tendered as evidence. No further forensic testing was undertaken on the handgun. First Constable Alchin agreed that, if the appellant’s fingerprints were found on the handgun, then there would be evidence of this. However, she was unable to recall whether the handgun had been arranged for fingerprint examination, although agreed that the “white powdery residue” which was still present on the handgun was consistent with a fingerprint examination having taken place on the handgun at some stage. Additionally, no forensic testing was undertaken on the seized discarded latex gloves. First Constable Alchin conceded during evidence that she believes she should have arranged to have these gloves tested.

The appellant’s evidence

26. The appellant gave evidence at his trial, and evidence was led about details of his relationship with the complainant, which we will not set out here. We note that the appellant denied making a copy of the key to the complainant’s apartment and entering her apartment without her consent. He also denied entering the complainant’s apartment through her balcony. The appellant conceded that it was clear that the complainant had no more affection for him after their meeting on 9 October 2013 and accepted that he and the complainant had no contact between 9 October 2013 and 4 November 2013.

27. It was the appellant’s evidence that, on 4 November 2013, he went to the complainant’s apartment between 4.30 pm and 5.00 pm to attempt to rekindle his relationship with the complainant. He testified that she was not there so he waited in his car for her to return and that he waited five or so minutes after he saw her arrive to knock on her front door. He testified that she answered the door and asked, “What do you want?” He told her that he really needed to talk to her about something. He said that she then stepped back to allow him into her apartment and, once he had entered, she closed the door. The appellant testified that he and the complainant then had a conversation in her lounge room where he said to her that he was “losing [his] shit”. He then disclosed to the complainant that he was feeling suicidal. He said that she encouraged him to seek help and he estimated that they spoke for approximately two and a half hours.

28. The appellant denied taking a gun to the complainant’s house, although agreed that he recognised the gun that was in evidence as his father’s pistol. He denied having access to his father’s gun safe. He also denied either directly or indirectly raising the question of photographing the complainant. He testified that, towards the end of their conversation, the complainant asked if he was alright to go home, and that, while he was a bit hesitant, she persuaded him to go. He said that they parted on good terms. The appellant gave evidence that the complainant asked if he would like a hug. They then hugged and he asked the complainant whether she could check on him in a month or so. She responded “I’ll see. As long as I’m not too busy”. The appellant said that he then completed some errands and went home.

29. The appellant testified that, on that same day, he left his house at approximately 11.00 pm and got into his car when an armoured vehicle pulled up in front of him. He said that the vehicle was not marked in any way to indicate it was a police vehicle and he thought the police must have put their lights on, although did not have a firm recollection of this occurring. He said that he then “freaked out”, jumped out of the car and ran approximately 30 metres. It was his evidence that he thought he was going to be admitted into hospital due to his mental health, as he had told the complainant earlier that day that he was suicidal and begged her not to tell anyone The appellant denied that he fled the scene because he knew that he had been “caught” and was going to be arrested. He also testified that he used latex gloves quite often, as he had bad dermatitis, and the complainant was aware of this fact.

30. The appellant also gave evidence that the letters that he had written, and that were found at his residence during the execution of the search warrant, were suicide notes written on 21 October 2013. In one of those letters, the appellant wrote, “I didn’t intend to harm her, just for her to see how damaging breaking someone’s trust can be”. He testified that this was a reference to not wanting to cause emotional harm to the complainant if he killed himself, rather; he “just [wanted] for her to see what it had done to me”. He said that, after writing this letter, he received an email from his parents who were away in Tasmania that “turned him off” committing suicide. The Crown alleged that this note was written very close to 4 November and effectively contained an admission of guilt. Specifically, the Crown prosecutor directed the appellant’s attention to this excerpt in his note, “Why I did this. People will think I am some sort of psychopath, that it was some sort of lover’s revenge”. The appellant denied that this was a reference to his plan to go and scare the complainant in her apartment. He also denied that this was letter was intended to be found after that event.

Ground (b): Failure to give a warning pursuant to s 38E of the Act

31. Prior to the commencement of amendments to the Act made by the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) on 30 April 2004, the evidence of adult complainants in trials alleging sexual offences was given in a courtroom in the physical presence of the judge, jury and accused. The Evidence (Miscellaneous Provisions) Amendment Act introduced the requirement that complainants in sexual offence proceedings were ordinarily to give their evidence from “another place” (commonly referred to as a remote witness room) linked to the courtroom by an audiovisual link. The provisions concerning the taking of evidence from such a witness by audiovisual link are found in division 4.3 of the Act, and relevantly include:

43 Complainant or similar act witness giving evidence by audiovisual link (1) This section applies if— (a) a complainant or similar act witness is to give evidence in a proceeding; and (b) the proceeding is to be heard in a courtroom; and (c) the courtroom and an external place are linked by an audiovisual link. (2) The complainant’s or similar act witness’s evidence must be given by audiovisual link unless the court otherwise orders. (3) The court may make an order under subsection (2) only if satisfied— (a) that— (i) for the complainant—the complainant prefers to give evidence in the courtroom; and (ii) for a similar act witness—the witness prefers to give evidence in the courtroom; or (i) the proceeding may be unreasonably delayed; or(ii) there is a substantial risk that the court will not be able to ensure that the proceeding is conducted fairly. (4) While the complainant or similar act witness is at the external place to give evidence, the place is taken for all purposes (other than section 40F (3)) to be part of the courtroom. (5) While the complainant or similar act witness is at the external place to give evidence— (a) the accused person must not be at the place; and (b) the witness must not be able to see or hear the accused person; and (c) the accused person must be able to see and hear the witness give evidence; and (d) the accused person must be able to communicate with the person’s lawyer. 44 Consequential orders—div 4.3 (1) This section applies if a complainant or similar act witness is to give evidence in a proceeding by audiovisual link. (2) The court may make any order it considers appropriate–– (a) to ensure that the proceeding is conducted fairly; or (b) to allow the complainant or similar act witness to identify a person or thing; or (c) to allow the complainant or similar act witness to take part in a view or to watch a demonstration or experiment; or (d) to allow part of the proceeding to be heard somewhere other than in the courtroom. (3) The court may make any other order it considers appropriate, including, for example, an order stating–– (a) who may be with the complainant or similar act witness at the external place; or (b) who must not be with the complainant or similar act witness at the external place; or (c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the complainant or similar act witness and people in the external place with the complainant or similar act witness; or (d) who, in the courtroom, is to be able to see and hear the complainant or similar act witness and anyone else in the external place with the complainant or similar act witness; or (e) how the audiovisual link is to operate. (4) The court may order that a person be excluded from the other place while the complainant or similar act witness is giving evidence. (5) The court may direct that an order under this section apply only to a particular part of the proceeding. 45 Making of orders—div 4.3 (1) The court may make an order under this division in a proceeding on its own initiative or on the application of— (a) a party to the proceeding; or (b) the complainant; or (c) a similar act witness. (2) For the purpose of making an order under this division, the court is not bound by the rules of evidence and may inform itself as it considers appropriate. 46 Jury warning about inferences from complainant or similar act witness giving evidence by audiovisual link (1) This section applies if— (a) a complainant or similar act witness gives evidence in a proceeding by audiovisual link; and (b) the proceeding is before a jury. (2) The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the evidence of the complainant or similar act witness is given by audiovisual link. 47 Failure to comply with div 4.3 (1) If the evidence of the complainant or a similar act witness is not given in accordance with this division, the evidence is not inadmissible for that reason only. (2) Failure to comply with this division in relation to a proceeding does not affect the validity of the proceeding.

32. Subsequently, the Act was further amended by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT), which inserted into the Act different procedures to be adopted in hearing a range of sexual and other violent offences, although the requirement for a complainant to give evidence ordinarily from a remote witness room remained unchanged. Of particular importance to the present appeal and inserted into the Act at this time is s 38E, which provides:

38E Sexual and violent offence proceeding—witness may have support person in court (1) This section applies to the complainant or a similar act witness (the witness) giving evidence in— (a) a sexual offence proceeding; or (b) a violent offence proceeding in relation to a serious violent offence; or (c) a violent offence proceeding in relation to a less serious violent offence if— (i) the witness is a relevant person in relation to the accused person; or (ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances. (2) For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate. (3) The court must, on application by a party who intends to call a witness, order that the witness have a person (a support person) in the court close to, and within the witness’s sight, while the witness gives evidence. (4) The court may order that a witness have more than 1 support person if it considers it is in the interests of justice. (5) The support person must not— (a) speak for the witness during the proceeding; or (b) otherwise interfere in the proceeding. (6) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding. (7) If the proceeding is a trial by jury, the court must tell the jury that— (a) a witness having a support person in the court while giving evidence is a usual practice; and (b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.

33. At the appellant’s trial, the complainant gave her evidence by audiovisual link from a remote witness room as permitted by the Act. Present in the remote witness room when she gave evidence was a sheriff’s officer and also a witness assistant from the Office of the Director of Public Prosecutions (the DPP). The jury were made aware of the presence of the witness assistant in the remote witness room. It is common ground between the parties that the trial judge did not give the jury a direction consistent with the requirements of s 38E(7). The appellant submitted that such a direction was required, and its absence resulted in a miscarriage of justice.

34. The Crown submitted that there was no requirement for the trial judge to give the jury such a direction, because s 38E had no application to the circumstances of the case. The Crown submitted that s 38E does not apply where a witness is giving evidence by audiovisual link under division 4.3 of the Act. This submission was based on the proposition that division 4.3, which provides for the giving of evidence by audiovisual link, existed as a discrete set of provisions well before the enactment of division 4.2, which includes section 38E. In effect, the Crown submission was that division 4.3 was a self-contained code governing the taking of evidence by audiovisual link. We will refer to the legislative history which the Crown relied upon for this submission.

35. The Evidence (Closed Circuit Television) Ordinance 1989 (ACT) introduced the facility for child witnesses to give evidence by way of closed-circuit television: s 5. A court hearing proceedings in which a child was to give evidence by closed-circuit television could specify the persons who were allowed to be present in the remote witness room with the witness: s 5(3)(a). Where an order was made for a child to give evidence from a remote witness room by closed-circuit television, the remote witness room was to be taken, for all purposes, to be part of the court room while the child was at the remote witness room for the purpose of giving evidence: s 5(5). This Ordinance expired on 23 July 1991, but its provisions were continued in the Evidence (Closed Circuit Television) Act 1991 (ACT), which was renamed as the Evidence (Miscellaneous Provisions) Act 1991 (ACT) by the Justice and Community Safety Legislation Amendment (No 3) Act 2000 (ACT).

36. The requirement for a jury direction was first inserted by a later Act, the Evidence (Closed Circuit Television) (Amendment) Act 1994 (ACT), which added s 6:

Where, in proceedings referred to in subparagraph 4 (1) (a) (i), a child is to give evidence from a place other than the courtroom in accordance with subsection 4A (1), the Judge shall warn the jury to the effect that an inference adverse to the accused should not be drawn from the fact that the child is giving evidence from that other place.

37. The Evidence (Closed Circuit Television) (Amendment) Act (No 2) 1994 (ACT) extended the use of evidence being given via audiovisual link to adult victims of sexual assault and indecent assault (prescribed witnesses). The Act, as so amended, provided that, while a prescribed witness was at a remote witness room for the purpose of giving evidence, “that place shall be taken for all purposes to be part of the court room”. It also provided for a direction to the jury in similar terms to that which is now required by s 46 of the Act. There were also provisions for consequential orders to be made as to who could be present in the remote witness room with the prescribed witness.

38. The Act was then further amended, as we have already noted, by the Evidence (Miscellaneous Provisions) Amendment Act. As a result of this amending Act, provisions concerning the taking of evidence from children were to be dealt with separately in Part 2 of the Act, and division 4.3 of the Act was created in very similar terms to the present, although it only applied to adult sexual offence proceedings. The Evidence (Miscellaneous Provisions) Amendment Act also created for the first time division 4.2 of the Act, which provided that an adult complainant in sexual offence proceedings could give evidence in closed court. At that time, there was no provision for such evidence to be taken by audiovisual link, nor was there any requirement for a jury direction to be given.

39. The Sexual and Violent Offences Legislation Amendment Act extended division 4.3 to violent offences, so that the Act now covered sexual and violent offence proceedings, and amended division 4.2 by, amongst other things, inserting s 38E.

40. The effect of these amendments, the Crown submitted, was that division 4.3 continued as it had before, but with an extended operation to violent offence proceedings and with the requirement for a jury direction about evidence being given by audiovisual link (s 46(2)), but remaining unaffected by s 38E of the Act. These amendments also, for the first time, required a jury direction in relation to the presence of a support person in court.

41. The Crown submitted that this legislative history demonstrated that the giving of evidence from an external place, namely a remote witness room, is to be treated differently by the legislature to the giving of evidence inside the physical court room, in that the giving of evidence inside the physical court room with the presence of a support person attracts the requirement to give a jury direction in relation to the presence of a support person, but the giving of evidence via audiovisual link from a remote witness room in the presence of a support person does not. The Crown submitted that division 4.3 was effectively a code governing the giving of evidence by audiovisual link, so that s 43(4) of the Act, which provides that, while a complainant is at a remote witness room to give evidence, that place is to be taken for all purposes to be part of the court room, is not subject to s 38E(3). The Crown’s submission was that s 38E only applied where a witness was giving evidence within the physical court room and in the immediate presence of the accused, and not where he or she was giving evidence by way of audiovisual link.

42. The Crown’s submission must be rejected. Both divisions 4.2 and 4.3 of the Act are part of Part 4, dealing with evidence in sexual and violent offence proceedings. Division 4.2 is entitled “Sexual and Violent Offence Proceedings – General”, suggesting that the provisions found in division 4.2 have general application. Divisions 4.2A, 4.2B and 4.3 then make specific provision for the taking of evidence in sexual and violent offences in particular circumstances, but we can see nothing to suggest that division 4.3 was intended to be a code for the taking of evidence by audiovisual link and to the exclusion of the provisions of s 38E. Nor can we see any reason to suppose that s 38E was intended to apply only in those cases, likely to be rare, where a complainant in sexual or violent offence proceedings does not give evidence by audiovisual link. The giving of evidence by audiovisual link for such witnesses is mandated by s 43 of the Act, except where the court otherwise orders: s 43(2). Such an order may only be made in limited circumstances: s 43(3). If the Crown’s submission is correct, the effect will be that the right of complainants in sexual and violent offence proceedings to have a support person with them as they give evidence will be severely restricted. It is true that the Court has a discretion under s 44 of the Act to make consequential orders where evidence is given by audiovisual link, but that is different to the right granted to a complainant by s 38E to have a support person of their choosing present.

43. In interpreting an enactment, or a provision in an enactment, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: ss 138 and 139 of the Legislation Act 2001 (ACT). As we have already noted, s 38E of the Act was inserted by the Sexual and Violent Offenders Legislation Amendment Act. The Explanatory Statement which accompanied the Bill which became that Act observed that the Australian Capital Territory has an interest in encouraging the reporting of sexual and violent offences, and that “national and international statistics have revealed that sexual assault is notoriously underreported”. The statement goes on to say, concerning support people:

Support people Amendments to the Evidence (Miscellaneous Provisions) Act 1991 will provide the following witnesses with an entitlement to have a person of their choosing, seated close by and within their sight, to provide emotional support while they are giving evidence:  complainants in sexual assault or violent offence proceedings;  similar act witnesses in sexual assault or violent offence proceedings;  child witnesses in all court proceedings; and  witnesses in all court proceedings who have a mental or physical disability which affects their ability to give evidence.

44. The intention of the legislature in enacting s 38E was to allow a person of the witness’ choosing to be present with the witness to provide emotional support. The availability of such support is likely to encourage complainants to report sexual and violent offences, and to give evidence in proceedings concerning such offences.

45. There appears to be no logical reason why the availability of such support should be restricted to the small minority of sexual and violent offence complainants who do not give evidence by audiovisual link. The objective of the amendments made to the Act by the Sexual and Violent Offenders Legislation Amendment Act is best achieved by adopting an interpretation of s 38E which applies that provision to all complainants of sexual and violent offences governed by the Act.

46. The process by which the witness assistant from the DPP came to be in the remote witness room as the complainant gave evidence was unsatisfactory. There was no application under s 38E for a support person to be present while the complainant gave evidence, nor was there any order made by the trial judge under that section, or under s 44(3) of the Act, authorising the presence of that person in the remote witness room. It seems to have been assumed that some such order was in place. When asked to identify herself by the trial judge, the officer of the DPP present in the remote witness room gave her name and described herself as “senior witness assistant, DPP”. It must be inferred that this person was present in order to provide support to the complainant, and as such was intended to be present as a support person as permitted by s 38E.

47. It follows from the above that the trial judge was required by s 38E(7) to direct the jury that the presence of the support person was usual practice, and that they must not draw any inference against the accused person, or give the evidence more or less weight, because of the presence of the support person. As the trial judge did not give the jury such a direction, it is necessary to consider the consequences of this failure.

48. Provisions similar to s 38E(7) are found in other jurisdictions. Division 4 of Part 2 of the Evidence Act 1977 (Qld) deals with the evidence of “special witnesses”, including children under 16 years of age, witnesses disadvantaged by reason of mental, intellectual or physical impairment, witnesses likely to suffer severe emotional trauma and witnesses likely to be intimidated. Section 21A(2) permits special arrangements to be put in place for the taking of evidence from such witnesses, including allowing the witness to give evidence from a remote witness room and allowing a person approved by the court to be present with the special witness whilst giving evidence to provide emotional support. Where evidence is given under such special arrangements, s 21A(8) requires the judge to instruct the jury that:

(a) they should not draw any inference as to the defendant's guilt from these special arrangements;

(b) the probative value of the evidence is not increased or decreased because of those special arrangements; and

(c) the evidence is not to be given any greater or lesser weight because of the special arrangements.

49. Special provision is made in s 21AW of the Evidence Act for a child witness to have a support person with them to provide emotional support while giving evidence. Section 21AW(2) provides that where this occurs:

(2) The judicial officer presiding at the proceeding must instruct the jury that— (a) the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and (b) the probative value of the evidence is not increased or decreased because of the measure; and (c) the evidence is not to be given any greater or lesser weight because of the measure.

50. There is a consistent line of authority in Queensland that failure to give a direction required by s 21A(8) or s 21AW(2) is an error of law. In R v TN (2005) 153 A Crim R 129, Keane JA, with whom Williams JA agreed, said at 147:

The failure on the part of the learned trial judge to comply with the terms of s 21AW(2) was an error of law. In this regard, the Crown invoked s 668E(1A) of the Criminal Code, “the proviso”. The question which arises for the purposes of the proviso is whether, notwithstanding that error of law, no substantial miscarriage of justice has occurred. In R v TN, the Court applied the proviso with the result that the appeal was dismissed.

51. Subsequently, the High Court in Weiss v The Queen (2005) 224 CLR 300 held that the proviso in s 568(1) of the Crimes Act 1958 (Vic) required an appellate court to itself determine whether a substantial miscarriage of justice had occurred, and that “[i]t cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury has returned its verdict of guilty” (at [44]).

52. In R v DM [2006] QCA 79, the Queensland Court of Appeal was satisfied that the trial judge had failed to direct the jury in accordance with s 21AW(2) of the Evidence Act, but declined to apply the proviso, noting that the case was essentially to be determined on credibility; as the jury had been required to assess the credibility of the complainants without the benefit of directions prescribed by law, it could not be concluded that no substantial miscarriage of justice had occurred.

53. A similar approach has been taken in later cases: R v HAB [2006] QCA 80; R v Hellwig (2007) 161 A Crim R 489; R v Michael (2008) 181 A Crim R 490; R v Bisht (2013) 234 A Crim R 309; and R v Coss [2015] QCA 33.

54. In R v Michael, Keane JA (with whom Holmes JA and Mullins J agreed) considered the purpose for the direction required by s 21A(8) of the Evidence Act and said at [37]:

The provisions of s 21A(8) are couched in mandatory language. Furthermore, they are clearly informed by the same solicitude for the provision of a fair trial as informs the equivalent provisions of s 21AW. In both cases, the legislation is concerned to ensure that it is made unequivocally clear to the jury that the special arrangements made to assist the complainant should not be taken to reflect adversely upon the accused. The risk of such adverse pre-judgment is at least as strong where a complainant is seen to be afforded support while giving evidence – which might be thought to reflect a justified fear of the accused – as it is in the case where a young complainant is seen to give pre-recorded evidence. (citations omitted).

55. Many, if not all, of these cases involved the complainant giving evidence with a support person in the presence of the jury, but R v Bisht was a case where pre-recorded evidence of the complainant was played to the jury, and where it would have been apparent to the jury that a support person was present with the complainant as her evidence was recorded. In the present case, the complainant gave evidence from a remote witness room while the appellant was in the main courtroom with the jury, and as such could not present an immediate threat to the complainant as she gave her evidence. The jury, however, could not know that the officer of the DPP providing support to the complainant was only providing support while the complainant was giving evidence. The jury could not know that the presence of the support person was not part of an ongoing process of protection of the complainant from the accused deemed necessary by the authorities. In our opinion, the danger identified by Keane JA in R v Michael in not giving the required warning is not removed by the fact that the complainant gives evidence from a remote witness room.

56. The contention of the appellant that the trial judge made an error of law in not directing the jury as required by s 38E of the Act is correct. The Crown submitted that, if that were the case, the appellant’s appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred: s 37O(3)(b) Supreme Court Act (the proviso). In our opinion, this submission must be rejected. The case against the appellant rested largely on the word of the complainant. The appellant gave evidence in which he denied the offences, so that the credibility of the complainant and the appellant were of vital importance. The importance of the credibility of the appellant is in no way diminished by the fact that there was evidence which may be thought to support the Crown case; indeed, the presence of such evidence made the appellant’s credibility all the more important. This Court did not see or hear the witnesses give their evidence, which is a significant limitation where the outcome of the trial turned on credibility. We cannot say with any confidence that the conviction of the appellant was inevitable (Baini v The Queen (2012) 246 CLR 469) or that the evidence properly admitted at trial inevitably proved the appellant’s guilt beyond reasonable doubt (Weiss v The Queen), or that the failure of the trial judge to give the required direction did not deprive the appellant of a chance of acquittal that was fairly open to him (Filippou v The Queen 323 ALR 33). Accordingly, the proviso does not apply and leave to argue this ground of appeal under r 5531 of the Court Procedures Rules should be granted.

57. It is indeed regrettable that experienced counsel then appearing for the Crown and the accused apparently did not turn their minds to this issue and request an appropriate direction from the trial judge, but this ground of appeal must be upheld, the convictions must be set aside and there must be a new trial.

Ground (a) – unsafe and unsatisfactory

58. The approach to be taken by a court of criminal appeal where a verdict is said to be unsafe or unsatisfactory was set out by the High Court in M v The Queen (1994) 181 CLR 487, where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted)

59. Later, at 494, they continued:

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. (citations omitted)

60. In Klobucar v The Queen [2014] ACTCA 6, this Court, after quoting the above passages from M v The Queen, said at [22]:

That passage from M v The Queen was endorsed in Hillier (a circumstantial evidence case) by Gummow, Hayne and Crennan JJ. In WA v The Queen [2011] ACTCA 4, which was not a circumstantial evidence case but one concerned with the credibility of the complainant, this Court noted the importance of the passage in M v The Queen; it both spells out what an appellate court should look for when evidence is said to lack credibility, and it reinforces the need to consider the whole of the evidence when considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

61. The appellant submitted that the following matters supported “the existence of a reasonable doubt as to guilt”:

(a) the prosecution case substantially depended on the testimony of the complainant;

(b) some aspects of the complainant’s account were “problematic”. For example, she initially told police that she had never seen a gun before this incident, but later admitted at trial that she had been photographed holding a gun in Austria when she was 17 years old. The appellant further submitted that it was odd that the complainant did not call the police from her home after the appellant left, instead leaving her home to go to the police station; and

(c) the complainant’s description of the firearm alleged to have been used by the appellant included the description “the front looked like what I’ve seen on TV, the silencer type thing, it looked wider than the rest of the gun”. There was, however, no evidence that the gun found at the appellant’s residence in a gun safe belonging to his father was capable of being fitted with a silencer.

62. It is fair to say, as the appellant does, that the complainant was an important Crown witness. Those matters raised by the appellant concerning the credibility of the complainant are largely peripheral or matters of detail. They are not such as to give us cause for concern that a condition on the evidence adduced at this trial would constitute a miscarriage of justice.

63. The appellant also submitted that much of the evidence relied upon as supporting the Crown case was, in reality, neutral:

(a) while a pistol similar to that alleged by the complainant to have been used by the appellant was found in the appellant’s father’s gun safe, the complainant was aware from her previous relationship with the appellant that he had access to a firearm;

(b) no forensic evidence linked the pistol to the appellant;

(c) a box of latex gloves was found in the garage of the appellant’s home, and a used pair of gloves were found in a bin in the garage. The appellant submitted that the complainant knew that he had a skin condition and that he used latex gloves;

(d) no forensic testing was performed on the discarded gloves found in the bin in the garage;

(e) a note found by police during a search of the appellant’s home was, he submitted, a suicide note, rather than an acknowledgement that he had done, or intended to do, something to the complainant; and

(f) the fact that the appellant ran from police when they came to speak to him was consistent with a belief that he would be hospitalised because he was suicidal, rather than indicating a consciousness of guilt.

64. There was, however, cogent evidence supporting the evidence of the complainant, including:

(a) the immediate complaint by the complainant to police;

(b) the appearance and demeanour of the complainant at the time she made the complaint, as observed by police;

(c) the letters written by the appellant and found by police at his residence on 5 November 2013. The appellant described those letters as “neutral” on the basis that there was an alternative explanation for him writing them, being his then intention to commit suicide. The jury was entitled to consider those letters in conjunction with the other evidence in the case, in which event they were entitled to reject the appellant’s explanation for the letters; and (d) the attempt by the appellant to run from police on the night of the incident. The appellant also described this as neutral, in the sense that it was capable of explanation by his profound fear of being hospitalised for mental health issues rather than as indicating a consciousness of his guilt with respect to the charged offences. A jury would be entitled to reject that proposition as improbable. On the appellant’s version of events of 4 November 2013 there would have been no reason for police to have attended his residence in an armoured car and in numbers simply to check his welfare.

65. The fact that a number of aspects of the circumstantial evidence are capable of alternative, innocent explanation does not mean that this evidence is without probative value. The probative value of this evidence is not assessed by considering each piece of the evidence piecemeal; it must be assesses as a whole.

66. Having considered the totality of the evidence, we are not satisfied that the verdicts are unsafe or unsatisfactory. The description of the essential events given by the complainant has remained consistent, and the evidence is not tainted or lacking in probative force. We are not left with the impression that the conviction was a miscarriage of justice, or that it was not open to the jury to convict.

67. Ground (a) is not made out.

The Crown appeal on sentence

68. As the appellant’s convictions must be set aside, and a new trial held, it is unnecessary to consider the Crown appeal.

Orders

69. The appellant’s appeal is upheld. The convictions are set aside and a new trial is ordered.

70. The Crown appeal against sentence is dismissed.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 6 May 2016