Applicant Convicted of Sexual Offending Alleges Miscarriage of Justice

Nenna (a pseudonym) v The Queen [2021] VSCA 183 (24 June 2021)

Applicant was convicted of sexual offending against child.  The Applicant, seeking leave to appeal against conviction and sentence, alleges that the judge made comments which gave rise to a substantial miscarriage of justice. 

Facts:

On 25 July 2019,  the applicant was found guilty of one charge of committing an indecent act with or in the presence of a child under 16 (charge 1) and three charges of incest (charges 2, 3 and 4).  On 13 September 2019, the applicant was sentenced to a total effective sentence of 18 years, with a non-parole period of 14 years.  The applicant, alleging substantial miscarriage of justice, seeks leave to appeal against conviction and sentence. 

The complainant is the applicant’s daughter.  When the complainant was about nine, and after a woman with whom the applicant had been living moved out, the applicant began to indecently touch and then sexually penetrate the complainant.  The applicant and the complainant lived with the applicant’s then partner, Linda Sefu in Australia in March 2008, when the complainant was 15.  The complainant told Ms Sefu that the applicant had been having sex with her since she was a child, and that he was responsible for pregnancy. The applicant arranged for the complainant to have the pregnancy terminated.  After the termination, the applicant discovered that the complainant had told Ms Sefu that he had been sexually abusing her.  This went on until 2012 when the applicant told the complainant to leave home. The complainant made a statement to the police detailing the abuse. 

In the course of the cross-examination, it was repeatedly put to the complainant that she was lying.  Defence counsel identified a number of examples of what he submitted were lies told by the complainant.  For instance, the complainant's statement in the fertility control clinic notes that the complainant had given a history of ‘losing her mum.'  In the course of summarising the evidence given at trial, the judge identified a topic which she described as ‘the evidence of the disclosures made by [the complainant] over the years that her father had been sexually abusing her’. 

Issue:

Whether or not the Judge's comments gave rise to substantial miscarriage of justice.

Applicable law:

McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307 - provides for the ‘right’ of a trial judge to comment on disputed questions of fact.

Jury Directions Act 2015, ss 52 and 53 - provides that a victim of sexual assault may delay or hesitate in complaining about such an offence due to ignorance about the nature, quality and character of the act performed; feelings of powerlessness; fear of family dissolution or punishment for the offender; having been sworn to secrecy, or feeling compelled to secrecy by threats of harm to themselves or to other people; having feelings of responsibility, guilt or blame for the acts that occurred; having feelings of shame or embarrassment; having a fear of bringing disgrace to the family; and having a fear of not being believed. 

Analysis:

The defence case at trial was that the complainant was a liar, motivated by her hatred for her father.  The Honour's reference to the complainant's trigger and her remark that the jury ‘might think’ the complainant courageous for having made her disclosures, is claimed by the applicant to have conveyed emotive language to the jury.  Such language of an advocate which was specifically disparaged by the High Court. 

However, the cases decided before the High Court’s decision in McKell involve charges that were subject to different statutory regimes from the one given in the present case.

Conclusion:

The Court concluded that the her Honour’s use of the terms ‘disclose’ and ‘disclosure’ did not amount to a substantial miscarriage of justice.  However, they added to the unfairness which we have already found was created by her comment that the lack of eyewitnesses was not particularly remarkable or unusual in this case.  Usage of ‘disclose’ and ‘disclosure’ is discouraged in future cases.

The Court granted the applicant's leave to appeal, allowing the appeal, setting aside the convictions and sentences imposed, and ordering a retrial.  The application for leave to appeal against sentence was held to be not necessary to be dealt with.