L Q v The Queen [2011] VSCA 135

CRIMINAL LAW - Application for leave to appeal against sentence - Total effective sentence nine years with non-parole period six years and six months - Serious sexual offender in respect of counts 3 to 8 - Whether individual sentences, total effective sentence and non-parole period manifestly excessive - Aggravating features included age of complainant and applicant's position of trust - No interference with sentence necessary but for this Court's substituted verdict and sentence on count 8 - New sentence of two years' imprisonment on count 8 to be wholly concurrent - Total effective sentence now eight years' imprisonment with non-parole period of five years and six months - Application for leave to appeal against sentence otherwise refused.

1 In October 2008, following a trial in the County Court at Melbourne, the applicant, who is now aged 45, was convicted of a series of sexual offences involving his niece. The relevant offending occurred between 2003 and 2007. The complainant was, at all material times, below the age of 16. In relation to counts 1 to 3, she was below the age of 10.

indecent act with or in the presence of a child under the age of 16

indecent act with or in the presence of a child under the age of 16

sexual penetration of a child under the age of 16 (in fact under the age of 10 at the relevant time)

indecent act with or in the presence of a child under the age of 16

3 The total effective sentence was nine years. The sentencing judge fixed a non-parole period of six years and six months.

4 The applicant now seeks leave to appeal against both conviction and sentence.

5 The complainant was, as has been noted, the applicant's niece. She was the daughter of his wife's sister.

6 The offences which gave rise to the first two counts, indecent act, were said to have been committed some time between 1 January 2003 and 31 December 2004. The first act of sexual penetration on the presentment, count 3, was said to have taken place some time in 2004. The next offence of indecent act, count 4, was said to have been committed some time between 1 January 2004 and 31 December 2005. The remaining counts on the presentment, counts 5 to 8, all involved acts of sexual penetration, which were said to have taken place on 27 May 2007.

7 The details of the offending in relation to each count are set out in the trial judge's sentencing remarks. His Honour stated:

10. The Crown case which must be taken by the verdicts of guilty to have been accepted by the jury were as follows:

a. That you touched the complainant's vagina whilst she was at your home in Springvale when she was in Grade 2 or 3. The complainant said she would be at your house playing on the computer and you would come inside the room and close the door and then touch her vagina, Count 1.

b. When the complainant was in Grade 2 or 3 and whilst at her home in Springvale and whilst she was sitting on your lap you grabbed her hand and made her squeeze your penis Count 2.

c. When the complainant was in Grade 3 or 4 whilst at your home and whilst you showed the complainant pornographic movies on a computer you touched her vagina, Count 4.

d. When the complainant was in Grade 3 and whilst she was in her mother's room you came into the room and closed the door. You told the complainant to pull her pants down and you then licked her vagina with your tongue, Count 3.

e. On 27 May 2007, about a month or two prior to being interviewed and on the day when the complainant's other uncle took her to buy the iPod identified by exhibit C3 as 27 May 2007 whilst at your home you pulled her pants down and licked her vagina, inserting your tongue into her, Count 5.

f. Also on 27 May 2007 at the same place you put your fingers into the vagina of the complainant, stopping when your mother came home, and leaving the room to wash your hands, Count 6.

g. Also on 27 May 2007 you came back into the room after washing your hands and licked the complainant's vagina on a second occasion on that day, telling the complainant whilst you were doing so to open her vagina with her hands so you could insert your tongue in further, Count 7.

h. Also on 27 May 2007 you digitally penetrated the complainant's vagina on a second occasion after leaving to wash your hands, licking your fingers before again washing them, Count 8.

8 When interviewed by the police, the applicant denied each and every one of the complainant's allegations. He said that he had never touched the complainant inappropriately. He denied any sexual impropriety. He did not give evidence at trial. He relied instead, for his defence, upon the answers that he gave in his record of interview.

9 The applicant originally sought to rely upon seven grounds in support of his application for leave to appeal against conviction. However, before the hearing of the application for leave to appeal, grounds 1 and 6 were formally abandoned.

10 During the course of the hearing, the applicant sought leave to amend his grounds by adding an eighth ground of appeal. The Crown did not oppose the grant of leave. The Court then proceeded, without at that stage ruling upon the application to amend, to hear argument in relation to that new ground, to which we will later refer.

The learned trial judge erred and/or there has been a substantial miscarriage of justice by reason of inadequate directions on the standard of proof ...

12 It is fair to say that this ground was formally maintained, but only faintly pressed. That was hardly surprising, since it is plain that the ground is devoid of any substance.

13 Implicitly, ground 2 contends that any departure from the recommended charge regarding the standard of proof, as set out in the Victorian Criminal Charge Book[1] ('the Charge Book') will, of itself, give rise to a miscarriage of justice. Alternatively, and at the very least, the ground contends that any failure to comply with the direction as to the standard of proof in R v Cavkic (No 2),[2] which this Court held was adequate in the circumstances of that particular case, will lead to a conviction having to be set aside.

15 A judge's charge to a jury is not to be regarded as some form of mantra, to be recited verbatim from an approved script.[3] A judge must, of course, make it clear to the jury that the Crown is required to establish guilt 'beyond reasonable doubt'. The judge should also tell the jury that these words mean exactly what they say. As the law stands, the meaning and application of the expression 'beyond reasonable doubt' is regarded as the province of the jury. It is therefore an error on the part of the judge to intrude upon that function by attempting to define that expression.[4]

16 The High Court has said on many occasions that it is a mistake to depart from this time-honoured formula.[5] There are examples of reported cases where convictions have been quashed because judges have attempted to substitute other expressions for the term 'beyond reasonable doubt'. Ordinarily, and in the absence of special circumstances, elaboration of the meaning to be given to the term 'beyond reasonable doubt' should be avoided. Even where some elaboration is warranted, it should generally go no further than telling the jury that 'reasonable doubt' is a doubt which they as ordinary or reasonable people may be prepared to entertain.[6]

17 Juries are often told that the standard of proof in a criminal trial is 'a very high one'. Some judges add that the criminal standard is the 'the highest standard known to the law'. A number of judges, though by no means all, go on to contrast the criminal standard with the 'much lower' standard of proof that applies in civil cases.[7]

18 In the present case, the jury were told, repeatedly and emphatically, that the Crown had to prove each element of each offence 'beyond reasonable doubt'.

19 It is now submitted on behalf of the applicant that this was not sufficient. We reject that submission.

20 The fact that some, and perhaps even most, trial judges make use of the Charge Book when preparing their directions to the jury, is, no doubt, a good thing. [8] That does not mean, however, that they are required to adhere slavishly to what is, after all, nothing more than a recommendation by an advisory body as to what the charge might usefully contain. The Charge Book, helpful as it no doubt is, should not be read as though it contains a model charge which must be followed verbatim. The fact that a trial judge departs from what the Charge Book recommends, does not, of itself, indicate error.

21 It is worth remembering what Hayne J said in that regard in Tully v The Queen: [9]

Because the criminal law has become as complex as it now is, "bench books" of standard forms of instructions to the jury are readily available for the assistance of trial judges. Properly used, such books are invaluable. But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide. The proper use of standard forms of jury instructions requires the judge first to identify what are the real issues in the case, then to identify the relevant instructions that are to be given to the jury and then, and most importantly, to instruct the jury by relating the standard form of instruction to the real issues in the case. The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge's task.[10]

22 It should be noted, in relation to ground 2, that counsel who appeared for the applicant at trial took no exception to any aspect of his Honour's charge. That fortifies us in our conclusion that there was no risk that the jury were inadequately directed, as to the standard of proof.

23 It should also be noted that counsel for the applicant, in his closing address, spoke at considerable length about the standard of proof. He told the jury a number of times that the Crown had to establish each element of each offence 'beyond reasonable doubt'. He went on to do exactly what ground 2 contends that the trial judge should have done, namely tell the jury that the criminal standard of proof, 'beyond reasonable doubt' was 'the highest standard of proof known to the law'. He even contrasted that standard with the lower standard of proof required in civil cases, describing the criminal standard as 'much higher' and comparing it with proof merely 'on the balance of probabilities'.

24 Of course, it is the judge's duty to direct as to the standard of proof, and that duty cannot be delegated to counsel. In the present case, as we have indicated, the trial judge did direct the jury as to the standard of proof. We are not persuaded that the direction was inadequate.

There has been a substantial miscarriage of justice because of the erroneous admission of evidence said to be capable of amounting to evidence of "recent complaint ", namely:-

(a) a "complaint" to the complainant's parents in later 2003 or early 2004 ...; and

(b) "complaints" to a teacher at the complainant's school on:

(i) Friday 8 June 2007; and

(ii) Thursday 12 June 2007

...

27 We should say at once that this ground is also without merit. The evidence that is now impugned was led at trial without objection. That was a considered decision on the part of counsel who appeared at trial, and so much was conceded before this Court. Indeed, counsel who appeared on the application for leave to appeal freely acknowledged that the applicant's counsel at trial had made a conscious forensic choice to allow that evidence to go before the jury.

28 That was a proper concession. The various complaints made in either late 2003 or early 2004, and in 2007, formed the basis of the defence attack upon the complainant's credibility. That was because what the complainant had said to her parents in 2003 or 2004, and to her teacher in 2007, differed in certain key respects from the evidence that she gave at trial, as set out in the VATE tape.

29 The ground, as drawn, is misconceived. The applicant's real complaint is not that the evidence of the complainant as to what she had previously said should not have been admitted, but that the trial judge should not have treated it as 'complaint evidence' (ie: as going to consistency)[11] rather than 'prior inconsistent statement' evidence. Accordingly, so it was submitted, the trial judge should not have directed the jury in what was described before this Court as 'the classical way upon complaint evidence'.

30 The point needs to be further developed. The complainant was cross-examined extensively as to inconsistencies between what she had previously said, and her evidence before the jury. Before this Court, counsel submitted that this was the only purpose for which those previous statements could be used. The previous statements could not be used to strengthen the complainant's credibility because they were not made at 'the first reasonable opportunity', as the common law required. Moreover, the content of those complaints lacked the certainty and specificity which were essential conditions to their being used as prior consistent statements.

31 We reject that submission. The jury were left to consider whether those complaints should be viewed as demonstrating consistency on the part of the complainant, or, as the defence would have it, they should rather be used to impugn her credibility.

32 If the previous statements made by the complainant were found to be inconsistent with her evidence at trial, the jury were told that they could use that fact as the basis for impugning her credibility. The applicant now contends that the jury should have been told that if they found those previous statements to be consistent with her evidence at trial, they could not use that finding as an indication that she was telling the truth. In other words, it was submitted that the jury should have been told to put those statements out of their mind unless they found they were inconsistent.

33 There are several difficulties with that submission. In the first place, the point was not taken below. Perhaps more importantly, a direction of that kind would almost certainly have left the jury in a state of bewilderment and confusion. If the prior statements went in, as the defence sought, and if the only issue was whether they were consistent or inconsistent, the jury's finding on that point could not sensibly be limited in such a way as to operate only in favour of the defence.

34 In these circumstances, this ground cannot succeed.

35 Ground 4 was argued, but only as to part. In the form that was pressed, it reads as follows:

There has been a substantial miscarriage of justice because of the admission into evidence of propensity evidence, namely three categories of allegations of "uncharged acts":-

(i) that the [applicant] had done "it" before on "10 or more occasions" ...

36 Ground 4 arises in this way. During the course of the VATE tape, the complainant was asked, after outlining the various incidents that gave rise to the counts charged, whether she could remember any other times something had happened with the applicant. Her answer was that she could not. She was then asked 'so how many times do you think this has happened?' She responded 'about 10 or more'.

37 Complaint is now made that this answer involved the reception into evidence of uncharged acts, and that the trial judge should, of his own motion, have excluded what she said. Perhaps not surprisingly, there was no application to exclude this evidence at trial. In the context of this case, the complainant's answer was entirely innocuous.

38 In the first place, this was not a case of uncharged acts involving offences against other young children. In a case of that kind, particularly where the credit of the complainant is pivotal to the trial, evidence that the accused has committed other like offences against other children is likely to be highly prejudicial. It is doubly so when some or all of those other children give that evidence, though it relates to uncharged acts.

39 In the present case, the defence was that the complainant had made up the entire story of having been molested by the applicant. Even if one understands the impugned answer as suggesting additional acts of sexual interference beyond those charged as counts (and the answer, when read in context, need not be understood that way), there is little to suggest that the reference to '10 times' would enhance the complainant's credibility. Nor is there anything to suggest that that answer would prejudice the applicant in the eyes of the jury.

40 It is important to note that the jury were carefully directed as to the limited use that could be made of evidence of what might be termed 'uncharged acts'. Importantly, they were given what are generally described as propensity and separate consideration warnings.

41 There was no risk, in our view, that this solitary answer to the question posed would have impermissibly affected the jury's deliberations.

There has been a substantial miscarriage of justice because of the erroneous admission into evidence of answers of the complainant to questions put to her by police officers in two VATE interviews conducted on 24 and 26 June 2007 concerning her ability to understand the truth.

44 In our view, ground 5 should not have been pressed. It rests upon a spurious analogy between the circumstances of this case, and the facts that gave rise to an earlier decision of the Court of Criminal Appeal in Caine & Another v The Queen.[12]

45 In Caine, a question arose as to the competency of children aged 10 and under to give evidence. The trial judge resolved, in the presence of the jury, the question of whether each child 'underst[ood] the duty of speaking the truth'.

46 That 'understanding' was, of course, a different question from whether each child was, in fact, speaking the truth. Nonetheless, the two concepts were held, on appeal, to be so interlinked, and so likely to be fused by the jury into the one proposition, that there was a real risk that their deliberations would be 'bedevilled'.

47 The differences between this case and Caine are perfectly obvious. Unlike what took place in Caine, the jury in the present case were not made aware of any consideration on the part of the trial judge as to whether the complainant was competent to give evidence. Accordingly, nothing was done, using the imprimatur of the trial judge, to enhance the complainant's credibility.

48 The questions put by the police officer, as recorded in the VATE tape, were innocuous, and might be seen as nothing more than a formality. We might add that they also seemed quite pointless having regard to the age of the complainant at the time she was interviewed. She was no longer a very young child at that stage, and would be expected to understand what the difference was between the truth and a lie. There was no risk at all that the jury would have treated those questions, and the answers elicited, as in any way bolstering the complainant's credibility.

50 This ground complains of an aggregate of errors rendering the verdicts in this case unsafe. The ground is based primarily upon the decision of this Court in R v Kotzmann.[13] The short answer to the ground is that none of the specific errors earlier identified has been demonstrated. The combination of a series of grounds, none of which are individually made out, does not, of itself, give rise to an arguable ground of appeal.

The verdict on count 8 is unsafe and unsatisfactory as there was no or insufficient evidence of sexual penetration of the complainant ...

53 The Crown particularised count 8 as having been committed on 27 May 2007, at about the same time as the three previous acts of sexual penetration that took place on that date. Count 8 was a count of digital penetration. The act of penetration was said to have occurred after the applicant's wife returned home.

54 The only evidence led by the Crown in support of count 8 was that given by the complainant on the VATE tape. She said at questions 106 to 113:

And his wife came and ..... - I pulled my pants back up and he went into the bathroom and washed his hands.

1. Okay. And what was he doing with his - with his hands?

He was liking [sic] it a bit, and then he went in the bathroom and washed it.

1. Okay. When you said, "He was licking it a bit", what was he licking, sorry?

1. Yeah. Alright. And when - when was he doing that?

55 Nothing further was elicited from the complainant regarding this alleged act of sexual penetration. The Crown did not seek leave to ask further questions, and the defence did not cross-examine as to the details of what was set out in those answers. We understand, therefore, that the case in relation to count 8 had to stand or fall by what was said in the VATE tape.

56 It can be seen at once that there was little, if any, direct evidence to support a finding of actual penetration on this count. The only basis upon which the Crown could contend that it was open to the jury to have found such penetration was the statement by the complainant that the applicant was licking his fingers and then washed his hands after 'touching' her vagina.

57 In our opinion, that evidence, even if accepted by the jury, would not sustain an inference that there had been actual penetration. In that regard, it should be noted that the evidence as to penetration in relation to count 8 stood in stark contrast with the evidence of penetration that had been led in relation to other counts.

58 For example, in relation to count 6, the complainant spoke of the applicant 'poking my vagina', and describing the feeling of pain that she felt as he did so. In relation to count 7, the complainant described the applicant as 'licking' her vagina for five or 10 minutes, and said that he had told her that she should open up her vagina so that he could insert his tongue 'deeper'.

59 In order to sustain a finding of sexual penetration, rather than simply an act of indecent touching, there had to be some basis upon which the jury could properly infer that such penetration had taken place. In relation to count 8, there was insufficient evidence, in our view, to enable that conclusion to be drawn. Accordingly, we would grant leave to amend the notice in support of the application for leave to appeal against conviction. We would then grant leave to appeal and allow the appeal in relation to that count.

60 The applicant was sentenced to a term of five years' imprisonment on count 8. Although the offence of indecent act carries the same maximum as the offence of sexual penetration (10 years' imprisonment), it is clear that the trial judge took the view that the latter was a significantly more serious offence than the former. The individual sentences imposed by his Honour reflect that conclusion.

61 We would exercise the power conferred upon this Court by s 569(2) of the Crimes Act 1958 (still applicable to this case as the applicant was sentenced in November 2008, before s 569(2) was repealed). We would quash the conviction on count 8 and, in lieu thereof, substitute a conviction for indecent act with a child under the age of 16. Plainly, given the jury's verdict, there was no defence to such a charge.

62 In lieu of the sentence of 5 years' imprisonment imposed on count 8, we would sentence the applicant to a term of 2 years' imprisonment on that count. We shall return to the overall effect that this substitution of verdicts, and sentences, has upon the total effective sentence and the non-parole period after we have dealt specifically with the applicant's appeal against sentence.

63 The only ground put forward in support of the application for leave to appeal against sentence is as follows:

The individual sentences, the total effective sentence and the non-parole period are in the circumstances manifestly excessive.

64 In our opinion, this ground must be rejected. It should be remembered that in respect of counts 3 to 8, the applicant fell to be sentenced as a serious sexual offender. Despite the fact that his Honour found that a disproportionate sentence was not required in order to protect the community, he was entitled to cumulate the individual sentences in the way that he did.

65 The offence of sexual penetration of a child below the age of 10[14] carries a maximum of 25 years' imprisonment.[15] Each of the other individual counts of sexual penetration carries a maximum of 10 years' imprisonment,[16] as does each individual count of indecent act.[17]

66 It should be noted that there were a number of aggravating features of the offending, all of which were addressed in his Honour's sentencing remarks. These included the obvious fact that, in relation to counts 1 to 3, the complainant was only eight or nine years of age. Moreover, the applicant, as the complainant's uncle, was in a position of trust. His offending was correctly described as 'brazen', often taking place when members of the family were present in the house where the offending took place. The applicant was only able to get away with his abhorrent conduct because he was trusted, and no one suspected him. In addition, the applicant continued to offend against his niece after she complained about him in 2003 or 2004, which would inevitably have exacerbated her sense of powerlessness. The offending was not isolated in character. It extended over a period of some years.

67 The trial judge took into account the mitigating factors that were put before him. He concluded that a total effective sentence of nine years' imprisonment with a minimum term of six years and six months was appropriate. But for our conclusion that the conviction for penetration on count 8 cannot stand and our substituted verdict on that count of indecent act, we would not have interfered with that sentence.

68 However, having regard to our conclusion that the sentence on count 8 should be reduced from five years' imprisonment to two years, we consider that the applicant should receive some marginal benefit. We note that one year of that five year sentence originally imposed on count 8 was cumulated upon the base sentence imposed on count 3. For the purpose of s 6E of the Sentencing Act 1991, we would direct that the new sentence imposed on count 8 be served concurrently upon the sentence imposed on all other counts. There is justification, in principle, for doing so, having regard to the fact that counts 5 to 8 all took place at about the same time, and could be regarded as closely linked.

69 As a result, the total effective sentence will now be one of eight years' imprisonment. We fix a non-parole period of five years and six months.

70 In reducing, as we have, both the total effective sentence and the non-parole period, it should not be thought that we are in any way critical of the original sentence imposed below. The applicant benefits marginally only because his conviction on count 8 is set aside and replaced by a conviction for what the trial judge would certainly have regarded as a less heinous offence.

[1] Published by the Judicial College of Victoria.

[2] [2009] VSCA 43, [61].

[3] Milkins v The Queen [2011] VSCA 93.

[4] R v Cavcik (No 2) [2009] VSCA 43, [62].

[5] Dawson v R [1961] HCA 74; (1961) 106 CLR 1, 18 (Dixon CJ); Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, 31- 32.

[6] See R v Cavcik (No 2) [2009] VSCA 43, [55]; and R v Hettiarachchi [2009] VSCA 270.

[7] Some trial judges take the view that this last formulation is unlikely to be of assistance to a jury, given that jurors are unlikely to know anything about the standard of proof applicable in civil cases. They regard a direction that contrasts proof 'beyond reasonable doubt' with proof 'on the balance of probabilities' as one that might be potentially confusing.

[8] See R v Said [2009] VSCA 244, [29]-[31] (Maxwell P).

[9] [2006] HCA 56; (2006) 230 CLR 234.

[11] Complaint evidence, prior to the introduction of the Criminal Procedure Act 2009, was admissible only to bolster a witness's credibility, and not to prove the truth of that which was asserted. It is now admissible for both purposes, and is no longer subject to precisely the same constraints as existed at common law.

[12] (1993) 68 A Crim R 233 ('Caine').

[13] [1999] VSCA 27; [1999] 2 VR 123.

[14] The relevant provision of the Crimes Act 1958 now provides for the child being under the age of 12.

[15] Crimes Act 1958 s 45(2)(a).

[16] Crimes Act 1958 s 45(2)(c). This subsection now provides for the child being between the age of 12 and 16.

[17] Crimes Act 1958 s 47(1).