H S G v The Queen [2011] VSCA 163 (8 June 2011)

Last Updated: 8 June 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0836

HSG	Applicant
HSG

V

THE QUEEN	Respondent
THE QUEEN

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JUDGES	WEINBERG and HARPER JJA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 May 2011
DATE OF JUDGMENT	8 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 163
JUDGMENT APPEALED FROM	R v [HSG] (Unreported, County Court of Victoria, Judge Gullaci, 29 September 2009)

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CRIMINAL LAW – Appeal – Conviction – Incest – Victim’s credibility central issue in trial – Lengthy delay between alleged offending and first complaint – Series of prior opportunities to complain not availed of – Inconsistencies between terms of complaints – Trial judge permitted Crown to lead evidence of complaint pursuant to s 41D Evidence Act 1958 – Whether evidence ‘sufficiently probative’ having regard to nature and content of, and circumstances under which, complaints made – Evidence wrongly admitted – Whether proviso can be invoked – Appeal allowed – New trial ordered

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APPEARANCES:	COUNSEL	SOLICITORS

For the Applicant	Mr M Dempsey	Pica Criminal Lawyers

For the Crown	Mr R Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT

1 On 17 May 2011, we ordered that the applicant’s appeal against conviction be allowed and that there be a new trial. We said that we would publish our reasons at a later date. These are those reasons.

2 On 24 August 2009, the applicant was convicted in the County Court at Melbourne on a single count of incest. The offence occurred in 2001. The victim, his daughter ‘X’, was aged nine at the time of the offending.

3 Following a plea in mitigation, the applicant was sentenced to four years’ imprisonment. He had earlier, in October 2007, pleaded guilty to five counts of incest and one count of gross indecency against his stepdaughter ‘Z’. The offences involving Z were based on an ongoing sexual relationship that took place between 1988 and 2000.

4 At the time the applicant was sentenced for the current offence, he had already served approximately two years of a total effective sentence of eight years and six months (‘the earlier sentence’) in relation to the offences he had committed against Z.

5 When sentencing the applicant for the current offence against X, the judge ordered that he serve two years of the present sentence cumulatively upon the earlier sentence. The judge fixed a new non-parole period of six years.

6 The applicant sought leave to appeal against both conviction and sentence.

Conviction appeal

7 The applicant relied upon on a single ground of appeal being, in effect, that the trial judge had erred in permitting the Crown to lead evidence, pursuant to s 41D of the Evidence Act 1958, of a complaint by X to her cousin ‘Y’.

8 In its written submissions filed with this Court, the Crown conceded that the complaint evidence was wrongly admitted. The Crown accepted that the evidence was not ‘sufficiently probative’ to warrant admissibility, as required by s 41D(2). Nonetheless, the Crown sought to invoke the proviso,[1] contending that the admission of this evidence had not occasioned any substantial miscarriage of justice.

9 It is convenient to first set out briefly some background matters, and to explain how the case was put at trial.

10 X’s parents separated in about 2000. Thereafter, they shared custody of X. In 2001, the applicant was living in Wheelers Hill. X regularly stayed at the applicant’s home. The count of incest on the presentment alleged that the applicant introduced his penis into X’s mouth at some time during the first half of 2001.

11 The evidence led at trial was in short compass. Essentially, the case was that at about the relevant time, the applicant and X were together in a bedroom. The applicant pulled down his pants, placed his penis in her mouth and forced X to have oral sex with him. The applicant did not ejaculate. After a time he removed his penis from X’s mouth, saying to her, ‘good girl’. He then left the room.

12 Evidence was also led of an uncharged act to the effect that, on a date in the first half of 2001, the applicant, who had been drinking, suggested to X that she get into the spa with him. The applicant pulled X under his arm, and began to rub her hip, inserting his thumb under her bikini bottom. The applicant’s then partner, ‘CM’, came home after picking up dinner. X left the spa before the applicant.

13 Both X and CM gave evidence that after X had left the spa, the applicant engaged in a fight with CM. This resulted in the applicant slapping CM across the face and calling her a ‘whore’. CM then left the premises with her five year old child. X later rang CM and asked her if she would come and take X from the house. CM declined to do so, as she was concerned the applicant may become more agitated.

14 In January 2006, Z reported the offences that the applicant had committed against her. Thereafter, X had been asked by her mother, her step-mother, a police officer, and Y (on two separate occasions), whether the applicant had assaulted her. On each occasion X denied that any such assault had taken place.

15 The evidence, which the Crown conceded should not have been led, related to a period in 2008, some seven years after the offending. The Crown called Y to give evidence that while she and X were both at the beach with their families in January 2008, she asked X whether the applicant had ‘ever done anything to her or touched her’. X replied that he had ‘pushed himself up against her but she’d pushed him away’.

16 Y also gave evidence that, in November of 2008, she had a further conversation with X, during which X stated that whilst the applicant had not had intercourse with her, she had had oral sex with him. Y said that she contacted X again the following day and asked her if she wished to report the matter to the police.

17 It is of some relevance to note that X had not resided with the applicant since December 2005.

18 When questioned by police, the applicant denied that any of the alleged offending against X had occurred. He did not give evidence at the trial. His counsel cross-examined X, and suggested to her that the incident had not occurred. She rejected that suggestion.

19 In a preliminary hearing into the admissibility of Y’s evidence, the Crown relied upon s 41D of the Evidence Act 1958.[2] That section broadened the circumstances under which complaint evidence could be led in sexual offence cases involving child witnesses. The section created an exception to the hearsay rule in relation to evidence of previous representations by child complainants. However, s 41D(2) provided that the exception did not apply unless:

...the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.[3]

20 It was conceded by the Crown at trial that the delay of seven years between the alleged offending and the complaint meant that the evidence could not constitute ‘recent complaint’ at common law. It was further conceded that the evidence of complaint was not being led to prove the truth of its contents, but rather as going only to X’s credit.

21 Counsel for the applicant at trial objected to the evidence, submitting that it was not ‘sufficiently probative’ to warrant admissibility. Counsel submitted, in the alternative, that this evidence should be excluded in the exercise of discretion on the basis that it was unfairly prejudicial, and of only marginal, if any, relevance.

22 The judge ruled that the evidence was admissible. He considered it to be probative in the sense that it was capable of supporting X’s credibility, which was the crucial issue in the case. His Honour refused to exercise his discretion to exclude the evidence, in essence, because it was so particularly relevant to the critical issue of credit. He went on to say that he would direct the jury that they could only make limited use of this evidence, and tell them in clear terms that they could not treat Y’s account of what X had told her as proof of the facts asserted.[4]

23 As previously indicated, the Crown conceded before this Court that this evidence should not have been admitted. That concession was properly made.[5]

24 The evidence did not satisfy the common law requirements for the admissibility of evidence of recent complaint. The period of seven years between the offending and the complaint was far too long to meet that test. When one adds to that fact X’s many denials that the applicant had in any way offended against her, until she changed her story under Y’s prodding in late 2008, it becomes even more apparent that this evidence should not have been received. In these circumstances, the evidence was barely relevant to X’s credibility, and did not satisfy the requirement that it be ‘sufficiently probative’ under s 41D(2).

25 Apart from conceding that the evidence should not have been admitted, the Crown also conceded, in its outline of submissions, that the applicant had been constrained, as a consequence of the admission of this evidence, in challenging this aspect of X’s testimony. The various approaches that had been made to her by her mother, her step-mother, a police officer, and Y, over whether she too had been sexually assaulted by her father in the way that Z had been, and the fact that she had consistently denied any such offending, could not be pursued in cross-examination without the jury being made aware of the applicant’s offending against Z.

26 The issue before this Court was whether, notwithstanding the erroneous admission of this evidence, there was no real possibility that the applicant suffered a substantial miscarriage of justice (‘the proviso’). The Crown bears the onus of demonstrating that the proviso should be invoked.[6] It was submitted that X’s evidence was of such cogency that a conviction was inevitable and no new trial should be ordered.

27 The Crown relied upon the judge’s careful directions to the jury regarding the matter of delay, his Honour’s instruction as to the forensic disadvantage suffered by the applicant by reason of that delay, and his directions as to the use to be made of the various inconsistencies between the statements made by X to Y in January 2008 and November 2008, as demonstrating that the applicant had not suffered a substantial miscarriage of justice.

28 It is unnecessary to set out in these reasons the passages from his Honour’s charge regarding these three matters. It is sufficient to say that no complaint was made before us of the accuracy or adequacy of his Honour’s directions regarding the limited use to be made of the evidence of complaint, the matter of forensic disadvantage, or the approach to be taken to prior inconsistent statements.

29 The applicant submitted, however, that the admission of the complaint evidence bolstered the credibility of X, which was the key issue in the trial. He further submitted that he had been unable, as a matter of forensic reality, to challenge that evidence without disclosing to the jury his previous offending against Z.

30 The jury, through a question asked during their deliberations, indicated that they regarded the evidence of Y as being of some importance. More tellingly perhaps, their question was couched in terms that suggested they had misunderstood his Honour’s direction to them as to the limited use that could be made of Y’s evidence. The question asked by the jury was this:

Why was [Y] not asked why she asked [X] if her father had done anything to her?

31 The jury was effectively seeking information as to what had prompted Y to suddenly ask X whether her father had done anything to her.

32 The judge directed the jury, in answer to that question, that the evidence was complete, and he did not propose to add to what he had previously told the jury regarding the use that could be made of the evidence of complaint. He added that they should not engage in speculation, and that to pursue the matter raised in their question would be to do just that.

33 In our opinion, the Crown’s submission that the proviso should be invoked cannot be accepted.

34 The credibility of X was obviously what this trial was about. The jury were told by his Honour that the evidence of complaint was capable of enhancing X’s credibility. The applicant was unable, in a practical sense, to attack that credibility by referring to the many previous occasions on which she had denied that her father had in any way offended against her.

35 While the jury could have convicted the applicant upon the evidence of X alone, it is difficult to accept, particularly in light of the question posed by the jury, that the evidence of complaint, which should not have been admitted, did not have any impact upon the jury’s assessment of X’s credibility.

36 For that reason, we concluded that there should be a new trial.

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[1] Crimes Act 1958 s 568(1) (which has now been repealed by the Criminal Procedure Act 2009).

[2] Inserted in the Evidence Act 1958 by the Crimes (Sexual Offences) Act 2006. Section 41D has now been repealed. The trial, having taken place in August 2009, was conducted under the provisions of the former Act rather than the Evidence Act 2008 (the relevant parts of which came into force on 1 January 2010).

[3] Evidence Act 1958 s 41D(2).

[4] Precisely why his Honour felt compelled to direct the jury in these terms is something of a mystery. Section 41D expressly provided that child complaint evidence, when admitted, was to be received as evidence of the truth of its contents. That approach accorded with the position which now applies under the Evidence Act 2008.

[5] See WSJ v The Queen [2010] VSCA 339; and Watson v the Queen [2010] VSCA 189 which consider the relevance of delay in the context of s 41D.

[6] R v BDX [2009] VSCA 28; (2009) 24 VR 288, 298 (Vincent and Weinberg JJA).

Authorities Cited4

Referred to (4)