CPG v R

PARTIES: CPG (Applicant) The Crown

COUNSEL: P Lange (Applicant) M Grogan (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/5929

McCLELLAN CJ at CL BUDDIN J ROTHMAN J

WEDNESDAY, 29 APRIL 2009 CPG v R Judgment 1 McCLELLAN CJ at CL: The applicant was tried in the District Court on 10 counts. The first count pleaded that the applicant was guilty of persistent sexual abuse of his daughter contrary to s 66EA(1) Crimes Act 1900. With respect to this count the Crown alleged that there were six occasions when a sexual offence occurred. The first five occasions were alleged to involve a single incident. The sixth occasion was pleaded as being comprised of five incidents. In the alternative a number of the occasions, said to constitute the first count, were pleaded as separate offences and an additional allegation was pleaded as an alternative to count 6. 2 The complainant is the applicant's daughter. Because of injuries suffered by her mother in a motorcar accident when her parents separated the complainant went to live with the applicant and his new partner. The individual incidents were alleged to have occurred at various locations and involved different sexual acts. 3 The alleged offences and maximum penalties for those offences may be summarised as follows:

Count 1 Occasion 1 : X-Box occasion Sexual intercourse with a person over 10 and under 14. Between 1 March and 30 November 2005 at Moonee Beach. (Section 66C(2) Crimes Act 1900; 20 years imprisonment). This occasion is count 2 in the alternative to Count 1 Occasion 2: Motel in Melbourne occasion Sexual intercourse with a person over 10 and under 14. Between 1 August and 31 October 2005 in Victoria. (Section 66C(2) Crimes Act 1900 ; 20 years imprisonment). Occasion 3: Vibrator and Pornography occasion Aggravated act of indecency upon a child under 16 years. Between 1 January and 30 October 2006 at Moonee Beach. (Section 61O(1) Crimes Act 1900; 5 years imprisonment). This occasion is count 3 in the alternative to Count 1 Occasion 4: Occasion at Luke Bowden's home Sexual intercourse with a person over 10 and under 14. Between 30 October and 31 December 2006 at Emerald Beach. (Section 66C(2) Crimes Act 1900; 20 years imprisonment). This occasion is count 4 in the alternative to Count 1 Occasion 5 Occasion occurring one month before interview with police when he ejaculated into his hand Sexual intercourse with a person over 10 and under 14. Between 1 November 2006 and 31 January 2007 at Moonee Beach. (Section 66C(2) Crimes Act 1900; 20 years imprisonment). This occasion is count 5 in the alternative to Count 1 Occasion 6: Last occasion - on 18 February 2007 at Moonee Beach (a) Compel act of self-manipulation by threat (compel complainant to insert vibrator into her vagina) Section 80A(2A) Crimes Act 1900; 20 years imprisonment This incident is count 6 in the alternative to count 1 Or as a further alternative to count 6 Incite the complainant to commit an act of indecency towards CPG in circumstances of aggravation Section 61O(1) Crimes Act 1900; 5 years imprisonment (b) Sexual intercourse with person over 10 and under 14 (cunnilingus) Section 66C(2) Crimes Act 1900; 20 years imprisonment This incident is count 7 in the alternative to Count 1 (c) Sexual intercourse with person over 10 and under 14 (penile/vaginal intercourse on bed) Section 66C(2) Crimes Act 1900; 20 years imprisonment This incident is count 8 in the alternative to Count 1 (d) Sexual intercourse with person over 10 and under 14 (penile/vaginal intercourse standing with leg on drawer) Section 66C(2) Crimes Act 1900; 20 years imprisonment This incident is count 9 in the alternative to Count 1 (e) Sexual intercourse with person under 10 and under 14 (penile/vaginal intercourse on bed from behind) Section 66C(2) Crimes Act 1900; 20 years imprisonment This incident is count 10 in the alternative to Count 1" 4 Section 66EA(1) of the Crimes Act is as follows: "(1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years." 5 The jury returned a verdict of guilty to count 1 making it unnecessary to consider the individual counts. 6 The applicant originally sought to raise three grounds of appeal. The first ground challenged the validity of the proceedings but that ground was abandoned. Grounds two and three complained of inadequacies in the trial judge's directions. The issues now sought to be raised were not raised by counsel at the trial and accordingly leave pursuant to rule 4 is required. 7 The grounds of appeal were expressed as follows:

Ground 2: His honour erred by failing to direct the jury that the relevant incidents had to occur on separate days as mandated by s 66EA(6)(a) Crimes Act 1900.

Ground 3: His Honour erred in failing to give the jury a separate consideration warning in respect of count 1. 8 The trial judge's summing up was given with care. Apart from his oral directions the jury were provided with a comprehensive written document. In that document the jury were told that for the Crown to prove count 1 - the persistent sexual abuse charge - it must prove beyond reasonable doubt that:

1. The accused committed sexual offences against [the complainant] on at least three separate occasions and.

2. The complainant being, on each of those occasions, a child under the age of 18. 9 The document reminded the jury that the Crown alleged six specific occasions and that before the jury could convict the applicant they "must be satisfied that sexual offences were committed on at least three of them." 10 The document then clearly set out the occasions which the Crown alleged to be relevant to the charge. In relation to Occasion 6, said to have occurred at Moonee Beach, the document referred to the five separate incidents alleged to have occurred on that occasion. Having identified the particular incidents the document said: "This is the occasion the Crown alleges various offences were committed in [the complainant's] bedroom at about 3 to 4 pm on Sunday 18 February 2007 whilst her mother was at tennis and the two young children were outside. It alleges that the accused first had [the complainant] insert the vibrator into her vagina, then engaged in an act of cunnilingus with her, then had penile/vaginal intercourse with her, first on the bed, then when she was standing with one leg on a drawer, then again on the bed in what she termed 'doggy style'. The accused denies any of these events happened. In order for you to find this occasion established, you must be satisfied beyond reasonable doubt that at least one sexual offence occurred and you must be unanimous as to which offence it was. In other words, you do not have to be satisfied that every one of them occurred but you must be satisfied that at least one of them did and you must all agree as to which one." 11 When his Honour gave the jury oral directions he spoke in similar terms to the written document. His Honour referred to the fact that the Crown alleged "six specific occasions" and told the jury: "You must be satisfied that sexual offences were committed on at least three of them. So you don't need to be satisfied of all six. You need to be satisfied of at least three. You must be unanimous as to the occasions. It is not sufficient that some of you are satisfied that he committed sexual offences on some occasions and other jurors are satisfied that he committed sexual offences on other occasions. If you are to return a verdict of guilty on this count you must all be satisfied that he committed sexual offences on the same occasions, and that there were at least three separate occasions and that on each of those occasions [the complainant] was a child under the age of eighteen." 12 With respect to the sixth occasion his Honour's oral directions included the following: "Now occasion six in relation to count 1 is on 18 February 2007 at Moonee Beach there were six sexual offences:- compelling an act of self-manipulation by threat; sexual intercourse with a person over ten and under fourteen by way of cunnilingus; penile/vaginal intercourse on the bed; penile/vaginal intercourse when [the complainant] was standing with her leg on the drawer; and penile/vaginal intercourse on the bed with the accused behind her. Now this is the occasion the Crown alleges that various offences, as I have said, were committed in [the complainant's] bedroom at about 3 to 4 pm on this Sunday 18 February. It was whilst her mother was at tennis and the two young children were outside. The Crown alleges the accused first had [the complainant] insert the vibrator into her vagina, then engaged in an act of cunnilingus with her, then had penile/vaginal intercourse with her first on the bed, then when she was standing with one leg on a drawer and then again on the bed in which she termed 'doggy style'. The accused denies any of these events happened. Ladies and gentlemen, in order for you to find this occasion established you must be satisfied beyond reasonable doubt that at least one sexual offence occurred and you must be unanimous as to which offence it was. In other words, you do not have to be satisfied that every one of them occurred but you must be satisfied at least one of them occurred and you must all agree as to which one." 13 This direction was faithful to the reasons of the High Court in KBT v R HCA 199754 (1997) 191 CLR 417 at 422. 14 Although no issue was raised at the trial the applicant submitted to this Court that the trial judge's directions were inadequate. It was submitted that his Honour failed to direct the jury that before the applicant could be convicted on count 1 the jury would have to be satisfied that the evidence established at least three separate occasions, occurring on separate days during the period concerned, on which the applicant engaged in conduct constituting a sexual offence. The applicant's contention was that his Honour's directions were inadequate because he failed to expressly refer to the fact that the occasions must occur on separate days. 15 I am satisfied that the trial judge's directions were appropriate. His Honour clearly informed the jury that they were required to be satisfied of the relevant act on three separate occasions. The jury were told of the six occasions which were identified as separate days on which it was alleged that relevant incidents occurred, there being multiple incidents on the sixth occasion. Although his Honour did not use the words "separate days" the jury would have understood that each occasion was a separate day and that unless they were satisfied that an incident occurred on at least three such occasions the applicant could not be convicted. 16 With respect to ground 3, the applicant submitted that his Honour should have expressly directed the jury to consider each occasion separately in deciding whether the Crown had proved the commission of the minimum three sexual offences. It was submitted that, in relation to count 1, the jury was not given any guidance as to whether the evidence with respect to one occasion could be used as evidence to prove the allegation in relation to another occasion. 17 The applicant drew attention to the fact that apart from the directions relevant to the offences relied upon as occasions to support count 1 his Honour gave the jury directions concerning each of the individual counts and in the course of those directions his Honour reminded the jury of the necessity to consider the evidence in relation to each count separately. He said: "In this trial you are concerned with allegations that the accused is guilty of a number of offences. The second to tenth counts in the indictment are, as I have just been speaking about, in the alternative to count 1. It is important that if you unanimously find the accused to be not guilty of count 1 and then find yourselves considering whether he has been proved to be guilty of any of counts 2 to 10 you must give separate consideration to your verdict in relation to each of those individual counts. To do that you must confine your consideration of each count to the evidence that relates to that count. Reasoning that because it is alleged that the accused has committed more than one offence then it must be likely that he committed at least one of them is impermissible. Having these nine verdicts to give, if you have found him not guilty of count 1, is not an invitation to compromise. What is required before you can return a verdict of guilty on any count is your satisfaction beyond reasonable doubt based upon the evidence relevant to that count that the Crown has proved the essential elements of the offence." There is one qualification to what I have just said about giving separate consideration to each count, and that is this. When considering a particular count in the indictment if you find that you have a doubt about the reliability or the credibility or the believability of [the complainant] in relation to it, then that doubt should be something that you should take into account when considering her evidence generally, including in relation to other counts." 18 Because count 1 was comprised of multiple occasions, a direction similar to that given with respect to the alternative counts could not have been given. The nature of the offence comprising count 1, being a number of separate acts obliged his Honour to inform the jury that before they could find the offence proved they had to be satisfied of at least three occasions upon which a relevant offence was committed. Although his Honour did not expressly state in relation to count 1 that consideration of the evidence of each alleged occasion was to be confined to evidence in relation to that occasion, the jury was carefully instructed as to the factual matters relevant to each occasion. If as must be assumed they acted in accordance with the directions there was no opportunity for them to have used the evidence relevant to one occasion in consideration of the evidence relevant to another occasion. A direction, similar to that given in respect of the other counts could have been given with respect to the occasions to which count 1 refers. However, given the clarity of the directions which his Honour did give, in my opinion, a further direction was not necessary. 19 As I have previously indicated no complaint was made by trial counsel and his Honour was not asked to give the jury further directions with respect to count 1 and accordingly Rule 4 applies. In my opinion the propositions now sought to be advanced are lacking in substance and I would be inclined to refuse leave to raise those grounds. I am not persuaded that the trial judge failed to appropriately direct the jury and it could not be concluded that there has been a miscarriage of justice: R v Maunsa [2001] NSWCCA 427; 125 A Crim R 505 at [63]; Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169 at 178. 20 Against the possibility that my conclusion is wrong I have reviewed the evidence at the trial and considered the application of the proviso. The complainant's evidence was given in a clear and concise manner. It suggests little difficulty of recollection and there is nothing to indicate fabrication. She described in considerable depth a number of separate incidents the details of which were significantly different from each other. Furthermore, there was support for her evidence in other parts of the Crown case, not the least of which were entries in her diary. The appellant admitted in his record of interview that some parts of the complainant's evidence were true. For example, he admitted that he had bought his daughter a vibrator and that he had shown her pornographic images on the computer. These admissions, repeated when he gave evidence, did not enhance his credibility. To my mind the jury was correct in accepting the complainant's evidence and rejecting that of the applicant. 21 Having reviewed the entirety of the evidence I am satisfied that the appellant's guilt was proved beyond reasonable doubt. Even if there was an error in the directions no substantial miscarriage of justice has actually occurred. 22 I would refuse leave to appeal under Rule 4 and I would dismiss the appeal. 23 BUDDIN J: I agree with McClellan CJ at CL. 24 ROTHMAN J: I agree with McClellan CJ at CL. **********

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