Dun (a Pseudonym) v The Queen [2019] VSCA 43 (6 March 2019)

Last Updated: 6 March 2019

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0097

JAXON DUN (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2019
DATE OF JUDGMENT:	6 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 43
JUDGMENT APPEALED FROM:	[2018] VCC 337 (Judge Montgomery)

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CRIMINAL LAW – Appeal – Conviction – Incest – Indecent act with a child under 16 – Irrelevant and highly prejudicial evidence – Whether failure to give alibi direction – Whether failure to give separate consideration direction – Whether failure to give anti-tendency direction – Impermissible use of evidence – Substantial miscarriage of justice – Appeal allowed – Retrial ordered – Jury Directions Act 2015 ss 12, 15, 17.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	David Luscombe and Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

T FORREST JA

EMERTON JA

TAYLOR AJA:

Background

1 The prosecution case was that on 7 April 2013, SS, then aged 14, was alone in her bedroom at her father’s home in Lara. The applicant, her grandfather, then aged 72, came into her bedroom. She showed him pictures of horses for sale on her computer. At this stage, she was sitting at her table. The applicant kissed her, moved her towards the bed and inserted a finger into her vagina while his other hand rubbed her hip. He asked her if she liked it and she replied, ‘No.’ The applicant left the room. (Charge 1)

2 Shortly after, SS made complaints about the incident to DG, IL and KD.

3 At trial, the applicant gave evidence and denied this event. He asserted that SS was upset with him for refusing to buy her a horse.

4 On around 24 August 2014, the applicant visited his son’s home in Lara. It was arranged that JS, the applicant’s granddaughter (and SS’ younger sister), was to sleep with her grandmother and the applicant was to sleep in JS’ bedroom. JS came into that bedroom to say goodnight to her grandfather who was in bed. As she turned away from the applicant, he held her by her pyjama pants, pulled her back towards him, placed his hand down her pyjama pants and inserted his finger into her vagina. (Charge 2) The applicant then kissed her breasts. (Charge 3)

5 JS left the room and went back to bed. JS was then aged 13. The applicant also denied this offending.

6 Between Friday 28 August 2015 and Sunday 30 August 2015, JS went to the applicant’s house in Cowes. She slept in. She stated that at around 12pm, she was sitting on the lounge room floor eating toast. The applicant sat behind her on the couch, took hold of her pyjama pants and pulled her towards him. He placed his hands down her pants and inserted his fingers into her vagina. (Charge 4) JS left the room. About a week after this incident, JS broadly complained to her friend CVW and CVW’s foster mother AM of the incidents the subject of charges 2, 3 and 4.

7 Charge 4 was also denied by the applicant in evidence. He stated that he was absent from the family home from around 10:15 am to 1:30 pm on that Saturday. He called evidence in support of this proposition.

8 We shall set out the verdicts and sentences imposed in table form.

Charge	Offence	Verdict	Sentence	Cumulation
1.	Incest (contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1981)	Guilty	6 years	Base
2.	Incest (contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1981)	Guilty	6 years	18 months
3.	Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1981)	Guilty	1 year	3 months
4.	Incest (contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1981)	Guilty	6 years 6 months	18 months
Total Effective Sentence:		9 years and 3 months’ imprisonment
Non-Parole Period:		7 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		1 day

9 In the body of these reasons, we shall refer in more detail to the evidence as necessary.

This appeal

10 The applicant initially raised four grounds of appeal. In argument, he abandoned ground 1 and was granted leave to add a further ground (ground 5). In this reconstituted form, the grounds of appeal are:

(a) Ground 1: Abandoned.

(b) Ground 2A: A substantial miscarriage of justice occurred because of the adducing of irrelevant and highly prejudicial evidence from the complainant SS that she:

(i) had received a diagnosis for post-traumatic stress disorder (‘PTSD’);

(ii) had sought and received psychiatric assistance; and

(iii) had been placed on a mental health plan.

(c) Ground 2B: A substantial miscarriage of justice was occasioned because of the prosecutor’s use of the irrelevant and highly prejudicial evidence that had been adduced in the trial to found a submission in his closing address that it ‘wouldn’t surprise you’ that the complainant SS had ‘mental health treatment for PTSD’.

(d) Ground 3: A substantial miscarriage of justice occurred because of the failure of the trial judge to give an alibi direction.

(e) Ground 4: The verdict on charge 4 is unsafe and unsatisfactory.

(f) Ground 5: A substantial miscarriage of justice occurred because of the failure of the trial judge to give the jury:

(i) an extended separate consideration direction; and

(ii) an anti-tendency direction.

Ground 2A – A substantial miscarriage of justice occurred because of the adducing of irrelevant and highly prejudicial evidence from the complainant SS that she:

(i) had received a diagnosis for PTSD;

(ii) had sought and received psychiatric assistance; and

(iii) had been placed on a mental health plan.

Ground 2B – A substantial miscarriage of justice was occasioned because of the prosecutor’s use of the irrelevant and highly prejudicial evidence that had been adduced in the trial to found a submission in his closing address that it ‘wouldn’t surprise you’ that the complainant SS had ‘mental health treatment for PTSD’.

11 It is convenient to consider the two components to this ground as one. In substance, the applicant complains that as a consequence of the introduction of evidence from the complainant SS that she had been diagnosed as suffering from PTSD and had received psychiatric treatment for it:

(a) a substantial miscarriage of justice occurred; and

(b) a substantial miscarriage of justice occurred because of the use the prosecutor made of this evidence in his final address.

12 In our view, there is little merit to this ground. Whilst the evidence of SS’ PTSD should never have been admitted, it was the applicant’s counsel^[2] who introduced the evidence and who sought to use it for a forensic purpose. The transcript reads:

[Defence counsel]: Why did it take you so long to make the statement?---Any time I used to talk about this, I used to get really upset. I was diagnosed PTSD. Um, the last time I was here, it took three hours for you guys to get through my statements because I would cry and — whenever I talked about it. I just kept putting it off because I didn't want to talk about it to anyone.

13 A little further on, it reads:

[Defence counsel]: Do you suffer from any mental disabilities?---No.

Not PTSD?---I have PTSD, I thought you meant something like um — I thought you meant like um autism or something.

Yes?---No.

But you do suffer from PTSD?---I - I did get a diagnosis for PTSD. I do not believe that currently I suffer from PTSD.

Did you say on one occasion, in this context, ‘That I block things out, memories come up’. Is that correct?---Yes.

Your statement is made, it would appear, almost three years after the event. Is that a memory that came up in that way?---No.

Have you ever sought psychiatric help?---I did used to go to - I went to a psychiatrist once, um I was having some other health issues and I went to the doctor and the doctor then sent me to the healthcare nurse. They weren't about anything to do with PTSD. The doctor picked up on that I had PTSD from other symptoms from my body. Um, then I went to the healthcare nurse and then the healthcare nurse sent me to the psychiatrist. I saw the psychiatrist once, they prescribed some medication which I never redeemed the script on. I never took any medication.

You didn't take the medication?---Never, never. I instead started just exercising. I've lost 15 kilos. I started exercising and just looking after myself and I found that in the last - in the last at least eight months, I haven't had any problems with PTSD or depression, but I did go to a psychiatrist once.

You were at one time placed on a mental health care plan with Westcare in Melton, is that right?---Yes.

Were you living in the Melton area at that time?---Yes.

I see. All right, thank you.

14 This evidence, given in the first aborted trial, was played to the jury in the second completed trial as part of SS’ evidence.

15 Counsel for the applicant did not seek to exclude this evidence in the second trial. In his final address in the completed trial, counsel for the applicant urged this evidence upon the jury:

[SS] has, you've heard, had difficulties in the past. She was diagnosed with PTSD, placed on a mental health care program. She was prescribed medication which she chose not to take. How does that affect her credibility? Well, that's entirely a matter for you.

16 The prosecutor responded to the introduction of this evidence in cross-examination by addressing it briefly in his final address. In the midst of a detailed and technically accurate final address, the prosecutor said this:

So really, when you consider the case of [SS] — and I would submit to you that she was a rational, measured witness who made proper concessions during the course of her evidence — she said, ‘Yes, I've had some mental health treatment for post-traumatic stress disorder’. Well, that wouldn't surprise you, members of the jury, and you might think she was an impressive witness and unshaken really in any way during the course of the cross-examination, rather than a person who was in here, acting, making up an utterly fabricated story about a long lost event from 2013.^[3]

17 Considered in the context of the entire trial, we consider that this one line statement by the prosecutor, whilst perhaps articulated for understandable reasons, would have been better left unsaid. On one view, it presumes the guilt of the applicant and attributes the PTSD to that offending. Having said that, it is little more than an assertion of guilt by a prosecutor, which is hardly an unusual event in a criminal trial. In our view, this short statement by the prosecutor was of no real significance in the overall context of this trial and certainly not productive of a substantial miscarriage of justice.

18 The applicant makes complaint about the manner in which his Honour dealt with this issue in his charge. We shall reproduce the relevant portion of the charge:

As I have told you, in doing this you must ignore all other considerations, such as any feelings of sympathy or prejudice that you have for anyone involved in the case. Emotion has no part to play in your decision, and I have spoken to you about that before. It is not an opinion poll, as I am sure you now recognise, and an example of an appeal to prejudice was [defence counsel] drawing your attention to the evidence he extracted about [SS] having PTSD and some psychiatric issues. None of which were specific – there was no expert evidence about that, and he said what you make of it is a matter for you. Well, it is just totally irrelevant. That is an appeal to prejudice, there is no evidence from the psychiatrist or anyone about what all that means, if anything. So you ignore that sort of appeal to prejudice.

19 His Honour thus blended a direction to ignore the PTSD evidence with a general direction to the jury not to act on prejudice.

20 We can see no error in his Honour’s direction. The jury were rightly directed to disregard the PTSD evidence and rightly directed to ignore appeals to sympathy and/or prejudice. The applicant contends that his Honour should have balanced the direction with a reference to the prosecutor’s ‘that wouldn’t surprise you’ submission. However, to do so would have highlighted an argument that was of the bootstraps variety and logically unsustainable in any reasoning path towards guilt.

21 Grounds 2A and 2B are rejected. Leave to appeal on these grounds is refused.

Ground 3 – A substantial miscarriage of justice occurred because of the failure of the trial judge to give an alibi direction

22 In ground 3, the applicant complains that his Honour erred by failing to direct the jury about the dangers inherent in cases where the defence relies on alibi evidence. Criminal practitioners in this state have traditionally been circumspect about running alibi ‘defences’ — should the alibi be discredited, this school of thought contends that the balance of the defence case will rapidly crumble to dust with speedy conviction inevitable. ‘Alibi directions’ have been developed to address this perceived danger. In the relatively rare case where an alibi is advanced, the jury may be directed, if requested by counsel, along the following lines:

• The accused has adduced evidence which, if accepted, shows that at the time the relevant offence was committed, he or she was elsewhere.

• When an accused person puts forward evidence of alibi, the burden of proving the accused’s guilt remains with the prosecution.

• This means that the prosecution assume a burden of disproving the alibi. If the prosecution fails to satisfy you beyond reasonable doubt that the alibi evidence should be rejected, then you must acquit the accused.

• If the prosecution satisfies you beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that you necessarily must convict the accused. The burden remains with the prosecution to prove beyond reasonable doubt each element of the offence.^[4]

23 There is no rule that, apart from the general directions concerned with the burden and standard of proof, a trial judge must give a specific direction that the prosecution bears an onus of disproving an alibi.^[5] If, however, an ‘appreciable danger’ exists that the jury may reason that an accused bears the onus of establishing an alibi, then a specific direction addressing this danger ought be given.^[6]

24 The short answer to the applicant’s complaint about the absence of this direction is that a direction of this type was not sought by defence counsel.

Section 12 of the Jury Directions Act 2015 (‘the Act’)^[7] provides that, if a particular direction^[8] is sought about relevant evidence in the trial, counsel must request that direction. A judge must not give an unrequested direction^[9] unless there are ‘substantial and compelling reasons’ for doing so.^[10] Counsel for the applicant on this appeal accepted that no ‘alibi direction’ was sought but nevertheless contended that there were ‘substantial and compelling reasons’ for his Honour to direct the jury in this way.

25 We disagree. The ‘alibi’ provided by the applicant and his witnesses was not a complete alibi by any means. It spanned a period of time in which the offence could have occurred. It was open to the jury to conclude that the offence occurred either before or after the alibi span; assuming this to be the case, the alibi direction would be otiose and potentially confusing. Further, in our view, his Honour’s general directions on the burden and standard of proof were clear and comprehensive. We consider that the jury could have been in no doubt as to where the burden of proof lay and the high standard of proof that attached to each element of the offences alleged.

26 Leave to appeal on ground 3 is refused.

Ground 4 – The verdict on charge 4 is unsafe and unsatisfactory

27 Ground 4 contends that the verdict on charge 4 was unsafe and unsatisfactory. It will be recalled that JS alleged that at around 12 pm on Saturday 29 August, in the lounge room of the applicant’s house in Cowes, the applicant inserted his fingers into her vagina. The accused denied these (and all) allegations and swore that he was at the Burns’ family home from around 10:15 am to 1:15 pm. This evidence was supported in various ways by three witnesses: TB, BK and Sa S.

28 The applicant submitted on this application that the complainant’s evidence was categorical that the offence occurred at 12 pm and the alibi evidence was equally categorical that the applicant was absent from his house from around 10:15 am to 1:30 pm. In those circumstances, it was not open to the jury to find the applicant guilty of charge 4.

29 The principles that apply to an ‘unsafe and unsatisfactory’ appeal are well established and need to be stated only briefly:

• A verdict is not unreasonable if it is supported by the evidence.^[11]

• The relevant question is whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. Put another way, must the jury have entertained a doubt about the applicant’s guilt?^[12]

• It is insufficient for an applicant to demonstrate that a jury might have entertained a reasonable doubt.^[13]

• A finding that a jury verdict is unreasonable is a serious step given that juries are the ‘constitutional tribunal(s) for deciding issues of fact’. That step ought not be taken without first having particular regard to the advantage enjoyed by the jury over an appellate court which has neither seen nor heard the trial witnesses.^[14]

• In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.^[15]

30 This ground is directed solely at charge 4 and solely at the proposition that the jury must have apprehended a reasonable doubt about the applicant’s guilt as a product of the alibi evidence which emerged intact and unscathed by cross-examination.

31 In our view, this ground cannot succeed. The complainant JS was equally unscathed by cross-examination. Her evidence as to charge 4 was clear and definite. It was put squarely to her that she had fabricated this account and she refuted this. Within about a week of this incident, JS had disclosed allegations against her grandfather to a friend and her foster mother.

32 Having reviewed all of the evidence, we consider it was open to the jury to conclude that:

(a) the offence occurred on that weekend but at a time outside the span of the alibi evidence; or

(b) the offence occurred within the span of the alibi evidence.

33 We consider that hypothesis (a) above was more attractive than hypothesis (b), but both were open. This conclusion is based on the overall evidence together with a question asked by the jury not long after it retired. In part, the question was:

Re charge 4, incest between 28/8 and 30/8, does this offence have to have occurred between these dates?

34 After discussion with counsel, his Honour directed the jury that they could not go ‘wandering’ outside those dates. In our view, it is likely that the jury accepted the complainant’s evidence as to what happened and the weekend on which it happened, but concluded that she was mistaken as to the time it happened.

35 Whatever be the process of reasoning by the jury, we consider that the applicant has not demonstrated that the jury must have entertained a reasonable doubt.

36 Leave to appeal on ground 4 is refused.

Ground 5 – A substantial miscarriage of justice occurred because of the failure of the trial judge to give the jury:

(i) an extended separate consideration direction; and

(ii) an anti-tendency direction

37 The primary contention made by the applicant under ground 5(i) is that in directing the jury about the need for separate consideration of each charge on this multiple charge indictment, his Honour did not direct the jury as to the admissible evidence that bore upon each individual count. The applicant argued that the impact of this omission was compounded both by the nature of this two complainant trial, with the associated risk of impermissible tendency reasoning, and the absence of any anti-tendency direction to ameliorate this risk. In our view, there is considerable force to those submissions.

38 In written submissions responding to the new ground of appeal, counsel for the respondent contended that considered overall, his Honour’s charge was sufficient to alert the jury to the extent of evidence admissible to each individual charge on the indictment. Counsel contended that the jury were directed that:

(a) there were four separate charges on the indictment and they were to be treated as four separate trials; and

(b) the trials were being heard together for convenience, but that the jury must not allow convenience to overrule justice; and

(c) just because the jury found the applicant guilty or not guilty of one charge, they ought not conclude that he must be guilty or not guilty as the case may be of any other; and

(d) each charge must be considered separately, in light of only the evidence which applies to it ; and

(e) in considering each separate charge, the jury must consider whether the evidence relating to that charge has satisfied the jury beyond reasonable doubt that the appellant is guilty of that particular charge.

39 Counsel for the respondent also contended that his Honour took the jury through the elements of the offences on the indictment and ‘then identified for the benefit of the jury the evidence which related to each of the particular separate charges on the indictment, and separately identified for the jury what the particular defence case was in regard to each of the separate charges’.

40 Counsel for the respondent then submitted that when regard was had to the ‘entirety of the case’, including addresses of counsel and his Honour’s charge, there was no risk that the jury misunderstood the nature of the evidence or how they were to apply it to the individual charges in the case.

41 Consideration of this ground starts with a brief recapitulation of the prosecution case. Charge 1 involved an allegation by the older granddaughter that the applicant inserted his finger or fingers into her vagina whilst simultaneously kissing or licking her face. Other relatives were said to be in the near vicinity. Charges 2 and 3 involved the younger granddaughter making very similar allegations, also involving digital penetration and kissing, this time on the breasts and with the complainant’s grandmother in a nearby bedroom. Charge 4 also involved the younger granddaughter being digitally penetrated.

42 The prosecution specifically disavowed reliance on tendency reasoning. The above pithy recitation of the facts of the alleged offending is sufficient to illustrate the very real danger that existed in this case for impermissible tendency reasoning. We consider that, absent a strong direction about the specific evidence that could and could not be used in relation to each charge, the temptation for the jury to use the evidence of one granddaughter as probative of the charge(s) involving the other granddaughter was nigh on irresistible.

43 A ‘separate consideration’ direction is a general direction as defined in s 3 of the Act. It is not a particular direction within the meaning of s 12 of the Act, and is not subject to the rules that govern particular directions in Part 3 of the Act.

44 It is instructive to consider the ‘separate consideration’ component of his Honour’s charge:

And I will remind you again that there are actually four separate charges — trials being heard here on that indictment, for a matter of convenience. But do not allow convenience to override justice, you have to consider each charge separately. It would be wrong to say that simply because you find him guilty or not guilty of one charge that he must be guilty or not guilty as the case may be of another. Each charge must be considered separately in light only of the evidence which applies to it.

You must ask yourself in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt the accused is guilty of that particular charge. If the answer is yes, you find him guilty, if the answer is no you find him not guilty.

45 To this point, the direction is impeccable and follows faithfully the guidance given by the Criminal Charge Book. The model charge at Chapter 3.7.2 of the Charge Book goes on to advise judges as follows:

You will note that I said you must consider each charge ‘in light only of the evidence which applies to it’. This is because some of the evidence you have heard in this case is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to [any of] the other charge[s].

In this case [instruct the jury about which evidence is or is not admissible in relation to each count].

46 The suggested ‘separate consideration’ directions are derived from a long line of authority that addresses the dangers of ‘juries using evidence impermissibly’ in multiple count indictments.^[16]

47 Regrettably, his Honour did not take this advice and failed to direct the jury on which evidence was admissible or not admissible on each count. In our view, the product of this omission, together with counsel’s failure to seek an anti-tendency direction, has caused this trial to miscarry in a substantial way. As we have observed, absent any judicial direction about the boundaries of admissibility, it was nigh on irresistible to the jury to use one complainant’s evidence when considering the charges involving the other complainant, and vice versa. The prosecution having eschewed tendency reasoning, there was no use the jury could make of one complainant’s evidence of sexual assault in the charges concerning the other.

48 In our view, a fair reading of his Honour’s charge simply does not justify the respondent’s contention that his Honour ‘identified for the benefit of the jury the evidence which related to each of the particular separate charges’. His Honour identified the acts that were said to constitute each charge. He described them to the jury as ‘the factual allegations in relation to each charge’, but did no more than that. As we have observed, his Honour failed to instruct the jury about which evidence was and was not admissible in relation to each charge.

49 Given our conclusions on the effect of his Honour’s failure to give an appropriate ‘separate consideration’ direction, in the circumstances, it is unnecessary to also examine the trial judge’s failure to give an anti-tendency direction (ground 5(ii)). It is sufficient to observe that it should have been requested and, had this been done, the jury should have been fully directed about the impermissibility of tendency reasoning.

50 We will grant leave to appeal on ground 5 and allow the appeal.

Conclusion

51 Ground 1 is abandoned. Leave to appeal is refused on grounds 2, 3 and 4.

52 Leave to appeal is granted on ground 5 and we will allow the appeal. We will set aside the convictions and order a retrial.

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1. ^[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 appellant.

^[2] Who was not counsel in this appeal.

^[3] Emphasis added.

^[4] See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107; Viro v the Queen (1978) 141 CLR 88; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Youssef (1990) 50 A Crim R 1; R v Small (1994) 33 NSWLR 575; R v J [No 2] [1998] 3 VR 602; R v Preece (1992) 96 Cr App R 264; R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527; R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392 (‘Merrett’); R v Mohammadi (2011) 112 SASR 17.

^[5] Merrett [2007] VSCA 1; (2007) 14 VR 392, 396 [17].

^[6] Ibid.

^[7] Also referred to as the ‘JD Act’.

^[8] As opposed to ‘general directions’ as set out in JD Act s 3.

^[9] Ibid s 15.

^[10] Ibid s 17.

^[11] R v Klamo [2008] VSCA 75; (2008) 18 VR 644 (‘Klamo’).

^[12] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.

^[13] Ibid.

^[14] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.

^[15] Klamo [2008] VSCA 75; (2008) 18 VR 644.

^[16] See R v PMT [2003] VSCA 200; (2003) 8 VR 50; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; T v The Queen (1996) 86 A Crim R 293; R v Mooseek (1991) 56 A Crim R 36.