In a dispiriting 3:0 decision, Frank Valentine’s multi-point appeal against his many convictions by Judge Noman was dismissed as if there was not a single valid ground. Not even when evidence contradicts the conviction.
The Red Herring Certificate identifies prosecutors and judges who, in our sincere opinion supported by evidence, have helped bring about or maintain wrongful convictions. The Inaugural Red Herring Certificate went to Tim Ellis SC, the former Tasmanian DPP whose prosecution of Sue Neill-Fraser led to what is widely regarded as a wrongful conviction. He called every element (dozens of times) that didn’t fit his narrative a red herring.
The three judges who heard Valentine’s appeal, Basten, Button & Wilson, seem to have made a virtue of the errors at trial when they took the view that “in assessing the reasonableness of verdicts, the Court is entitled to consider the cumulative effect of all the evidence, including tendency evidence, to support a conclusion beyond reasonable doubt. The Court must be entitled to give as much weight to the admitted evidence as it considers appropriate, and it is open to the Court to accept tendency evidence on the basis that it rebuts the natural propensity to dismiss complaints as inherently implausible.” Really? One inherently implausible claim should not be relied upon as tendency evidence to support another inherently implausible claim.
“Establishing propensity for criminality” is the basis of the tendency provisions which are often used in Australian courts, especially in sexual abuse cases. One senior counsel says: “Tendency and coincidence is a way to convict someone in a case that does not stand the test of beyond reasonable doubt. It puts aside the relevance of all evidence.”
That is exactly what happened here. Among the many grounds of appeal, some stand out. Not least is the hard evidence that is fatal to claimant DW’s story of abuse. In order to demonstrate the extent to which the trial judge erred – and the appeal court followed in error – here are edited extracts from the appeal document. (Author comments in [square brackets].)
Ground 16 (complainant DW counts 35 – 39): The trial judge erred in failing to have regard to, or acknowledge, what was uncontradicted in the evidence giving rise to a reasonable doubt.
The judicial method adopted in the Reasons betrays an indifference to what lay in issue at trial which depended in large part upon how the trial judge resolved numerous “non-credit based reliability”15 issues whilst at all times applying the warning attaching to the forensic prejudice (particularly that faced by the appellant in testing witnesses).
This was not a case where simply accepting the complainants as appearing to be honest or “doing their best” overcame the presumption of innocence and contradictions with other evidence. These contradictions and the application of appropriate warnings were simply too complex, to permit that approach to be open. [Grounds 21, 19 and the unreasonable verdict grounds.] Her Honour was required to consider at the very least the conflicts in the evidence
in light of what was not in dispute. [Eg Grounds 1 and 18] Her Honour then had to accurately consider the extent to which the witnesses’ respective evidence was corroborated, contradicted or undermined by other evidence. For example, DW claimed he was sexually assaulted by the appellant at a camp whilst at Daruk.
The undisputed evidence was that there was one camp per year which DW was eligible to attend, and the evidence established that camp was in March 1974 at a time when he was not a resident at Daruk. In convicting the appellant, the Reasons disclose a preference for the accuser over the accused in ways that foreclosed an analysis of the critical factual issues. DW’s account set against the unchallenged evidence was unreliable.
The appellant’s case (is)… corroborated by documentary materials and other evidence, the accuracy of which was not challenged by the Crown. Yet, her Honour (trial judge Noman) was satisfied of guilt including because DW possessed the “ring of truth.”
a step too far
[As we have previously reported elsewhere, judges are unreliable at assessing whether witnesses possess the ‘ring of truth’, scoring the same as the average citizen in tests. But defying hard evidence is a step too far. Yet these four judges (trial & appeal) took that step.]
Section 6 of the Criminal Appeal Act provides: Determination of appeals in ordinary cases: The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that 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 that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
Notwithstanding the conclusion that DW’s evidence was in respects apparently “contrary to the objective evidence” the trial judge said:
“I do not accept [the appellant’s] evidence that he did not admit DW to Daruk. I do not accept his evidence that he did not attend a camp with DW. I do not accept his evidence that he did not take DW off site including taking him to a private house. I do not accept his evidence that he did not drive DW away from Daruk.”
The reason for rejecting the appellant’s evidence in respect of the DW allegations at this point in the remarks was not explained save as for what underpins the error contended for in Ground 21 namely, the entirety of the appellant’s evidence was to be rejected because of his supposed unreliability about matters attaching to access at Parramatta that had no bearing at all upon DW’s allegations.
[There is much, much more that discredits the judge and the appeal court for its failure to correct this miscarriage of justice, but even these scant details of this egregious example is surely enough. It is terrifying that such judges hold the liberty of accused persons in their clearly incompetent (or biased?) hands.]