Lepine v R

Grounds of appeal

1. The applicant seeks to rely upon a sole ground of appeal: The jury's verdict, in respect to Counts 1, 2 and 3 were unreasonable in all the circumstances, in the light of the jury's verdicts in Counts 4, 5, 6 and 7. In that: i) The evidence as to intention to assault, lack of consent to assault and any accompanying indecency did not support the guilty verdicts; ii) The complainant lacked credibility in respect to the matters the subject of the guilty verdicts and in particular to any alleged indecency; iii) The guilty verdicts appear to have been compromise verdicts; iv) The guilty verdicts are inconsistent with the acquittals in counts 4-7 inclusive.

An extension of time required

1. By s 10 of the Criminal Appeal Act 1912 (NSW), the applicant had 28 days from 18 July 2014 to file a Notice of Intention to Apply for Leave to Appeal ("the Notice of Intention"). He did not do so until 23 December 2014 but the Registrar granted an application for an extension of time in this respect.
2. The filing of the Notice of Intention was prompted by the applicant having been contacted by police about registering on the Child Protection Register and by him wanting to be able to defend himself against people referring to him as a paedophile.
3. Pursuant to rr 3A and 3B of the Criminal Appeal Rules the applicant had 6 months during the currency of the Notice of Intention to file a Notice of Application for Leave to Appeal. The period during which the Notice of Intention had effect could be extended pursuant to r 3A(2). However, no application was made for an extension. The Notice of Intention therefore expired on 22 June 2015.
4. The next thing to occur was the filing of a Notice of Application for Leave to Appeal with a Notice of Application for Extension of Time on 2 November 2016.
5. The explanation for the almost 2 year delay from the filing of the Notice of Intention and almost 2½ years from the date of sentence included that the applicant had received a negative advice from senior counsel about his appeal prospects in May 2015. Another advice was obtained from his current junior counsel later that year which was of a positive nature. The applicant then delayed for a year raising the funds to pay the fees of counsel (senior and junior) and his solicitor.
6. I am not persuaded that the interests of justice favour an extension of time being granted. The explanation for the substantial delay is unsatisfactory. More particularly, however, the proposed appeal has no merit.

The Crown case

1. The complainant lived with her family in north-western suburban Sydney. She frequently stayed with her grandparents at Springwood. The applicant, who was her cousin and about seven and half years older than her, lived with his family nearby at Blaxland. The complainant would stay at the applicant's family home for a couple of nights during her visits to her grandparents.
2. The offences were alleged to have occurred in the applicant's home during the complainant's visits from when she was aged 8 in 1985 until she was aged 12 in 1990.

Count 1 - between 31 May and 31 December 1985

1. Count 1 alleged an indecent assault which occurred when the applicant was sitting at a computer and she walked behind him. She said that he leaned out and squeezed her on the bottom with his right hand, using his hand in a claw type position with his palm facing upwards. His hand touched her bottom and parts of his fingers went between her legs. She said this occurred on mutliple occasions during this particular visit to the applicant's house. (AB 173-175)
2. The complainant said that on subsequent visits the applicant's behaviour escalated.

Count 2 - between 1 January 1988 and 31 December 1989

1. Count 2 alleged an indecent assault which occurred on an occasion when he called her into his bedroom. She said that he asked or told her to get up on the bed, which she did. He grabbed her in a bear hug type of hold and pulled her onto him on the bed and rolled over the top of her. She said that she could feel something hard under his clothing; "he was pushing into me, we were both clothed and then I managed to squirm away and got out of the bedroom". She said she did not realise at the time, but as she got older she recognised that the applicant had had an erection "because of where it was and where I felt it". (AB 175-176)

Count 3 - between 1 January 1988 and 31 December 1989

1. The offence in Count 3 was alleged to have occurred later on the same day as the offence in Count 2. The applicant came into the complainant's bedroom. He picked up her brush and she asked for it back. He threw it on the bed and said, "if you want it come and get it". As she went to retrieve the brush he grabbed her in a similar type of bear hug as before and pulled her onto the bed. He rolled on top of her but she managed to squirm free and leave the room. While he was on top of her she again felt him pushing his erection into her through his clothing, "like pulling me tight and rubbing it against me while we were rolling around on the bed". (AB 176)

Counts 4 and 5 - between 31 May 1989 and 30 May 1990

1. On a later visit, when the complainant was aged 12, she went to bed and as she passed the applicant and said good night to him he said to her, "I'll be in in a minute". She did not know what he meant by that. She went to bed and was preparing to go to sleep. She said that quite some time later the applicant came in and got into bed with her. He pulled up her nightie and put his hand on the inside of her thigh. He then pulled her underwear to the side and put his finger inside her vagina and started moving it around. She said that it was very uncomfortable and it hurt.
2. The complainant said that the applicant then got on top of her. He pulled her face into his shoulder and she then started to feel an immense pain "which at the time I thought he had got his whole fist, hand and put it inside me". She clarified, "inside my vagina". She said the pain was "really bad". The applicant said, "Ooh, what's that?". She replied, "I don't know". He was moving forward and back on top of her "and it really hurt". She said that she did not know how long it went on for "and it only stopped when he left". The next day she felt really sore and she was really upset. She did not know why but she did not tell anyone. (AB 177)

Counts 6 and 7 - between 31 May 1989 and 30 May 1990

1. The same thing happened the following night in the same way. First there was penetration by the applicant's finger and then by what she assumed at the time was his hand. She felt the same type of pain. (AB 177-178)
2. The complainant said, "I realised thinking as I've got older and I've had three children that I now understand it wasn't his hand, that it was his penis" on both nights. In hindsight, she realised that it could not have been a hand because he was using his hands to hold onto her and to pull her into him. (AB 178)

Complaint

1. There was evidence of complaint which will be considered in more detail below. In short, the complainant told her mother shortly before the next school holidays, when she was again due to go to her grandmother's home to stay. She confirmed her complaint to her father. She also complained to the applicant's mother, who had heard from the complainant's brother what was being alleged. She also complained to a school friend.

Recorded pretext telephone conversation

1. Another aspect of the Crown case was a recorded pretext telephone conversation between the complainant and the applicant that occurred at the instigation of police on 28 May 2013. The Crown case was that the applicant did not deny most of the allegations that were put to him and specifically admitted certain sexual misconduct. This will be considered in more detail below.

The defence case

1. The defence case involved a denial of any sexual impropriety. If there had been any inappropriate touching it occurred while the applicant had given the complainant a piggy back. There was evidence given by the applicant, his father and five character witnesses.

Submissions for the applicant

1. In written submissions, the applicant contended that this was a "word against word" case and by its verdicts of not guilty in respect of Counts 4 to 7 the jury "did not accept the complainant as a witness of truth". There was no apparent good reason for the jury to accept her evidence in respect of Counts 1 to 3. It was said that this "smacked" of compromise verdicts. (AWS [57]-[59]; [65]; [67])
2. There were deficiencies in the evidence that provided a logical explanation for the jury having acquitted the applicant on Counts 4 to 7 (and these were listed in the written submissions). Further, the complainant's recollection was inconsistent and unreliable with respect to critical elements of the offences. (AWS [60]-[62]; [67])
3. There were also deficiencies in the evidence concerning the indecent assaults in Counts 1 to 3: "The complainant's evidence in relation to them was 'scant in its references' to them. It is apparent that she did not consider there had been any assault, or lack of consent, until in the context of the asserted sexual intercourse she felt that she had experienced contact with a 'hard object' when she reflected on the events years afterwards." (AWS [63]) "There was a lack of timely complaint which indicated a lack of awareness that an assault or an act of indecency had occurred. The complainant first came to the realisation was in the context of the alleged sexual penetration. Further, she said she reported the alleged assaults after watching a television program about the Catholic Church and sexual abuse." (AWS [64])
4. In oral submissions, it was argued that the complaints made by the complainant and the pretext telephone conversation did not support her evidence in relation to Counts 1 to 3 because neither of them related to any of those specific incidents. (27.3.17 at T3-5)
5. I do not understand the submissions for the applicant to involve an overall contention of unreasonableness in the verdicts in the sense that, putting side the inconsistency in the verdicts, this Court would be required to make its own independent assessment of the evidence to determine whether it was open for the jury to find the applicant guilty in respect of the three indecent assaults. The Crown made clear in its written submissions (at [10]) that it perceived the applicant's case for unreasonableness to be based upon the inconsistency in the verdicts and it was on that basis that the oral submissions for both parties were advanced at the hearing.

Unreasonable verdicts because of inconsistency of verdicts

1. The approach to be taken by this Court when there is an assertion that a verdict is unreasonable because of inconsistent verdicts returned by a jury are well known, often recited and need not be repeated. See, for example, TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [2]-[8] (McClellan CJ at CL); Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [19]-[24] (Leeming JA); MG v R [2017] NSWCCA 14 at [82]-[89] (Hoeben CJ at CL).
2. The present application may be determined by considering whether there is an acceptable explanation for differentiation by the jury between Counts 1 to 3 and Counts 4 to 7 as a matter of logic and reasonableness.
3. It is important to bear in mind that the jury were directed of a need to "examine [the complainant's] evidence very carefully in order to satisfy yourself that you can safely act on that evidence to the high standard required in a criminal trial". The trial judge also suggested that the jury "should of course look to see if other evidence supports what she has told you". (AB 14) This was a direction based upon R v Murray (1987) 11 NSWLR 12.
4. The jury were also directed to give separate consideration to the evidence pertaining to each count but his Honour suggested that there would need to be good reason for the complainant's evidence to accepted on one count and not on others; or rejected on one count but not on others. (AB 7; 14) This was a direction derived from R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [186]-[191] (Spigelman CJ).
5. It is also pertinent to emphasise the following in the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen [2002] HCA 53; 213 CLR 606 at 617 [34]: "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others."

Consideration

1. Deficiencies in the recollection of a complainant in a case such as this, where the charges brought against an accused relate to events alleged to have occurred some 25 to 30 years before the trial, are unsurprising. They are to be expected, particularly in the case of a complainant who was a child at the relevant time. There were such deficiencies in this case but they do not necessarily support the conclusion for which the applicant contends: that the complainant was not accepted "as a witness of truth".
2. It is far more likely that the jury heeded the trial judge's directions and suggestions to examine the complainant's evidence very carefully and to look for whether there was evidence that supported what she had alleged.
3. In this case there are two bases upon which the jury could have legitimately differentiated in its verdicts between Counts 1 to 3 on the one hand and Counts 4 to 7 on the other. Complaints made by the complainant were capable of being regarded as supportive of her evidence as to the former far more so than the latter. Moreover, the evidence of the pretext telephone conversation was capable of being regarded by the jury as involving admissions by the applicant to having indecently assaulted the complainant but not to have sexually penetrated her.

Complaint evidence

1. To her mother's statement, "if anyone touches you between your legs, you need to either tell me or tell your dad", the complainant replied that the applicant "does that to me". Her father then asked, "Your mother tells me that [the applicant] touched you up" and she replied, "Yes he did". (AB 178)
2. The complainant's mother claimed that she said "he laid on top of her and he stuck something hard in her and it hurt very much". However, she conceded in cross-examination that she did not tell police this when she made her statement. She gave an explanation for this but the jury may have been hesitant in accepting it. (AB 397; 409)
3. The evidence of the complainant that she told a school friend of having been "sexually abused" was also capable of being regarded as being consistent with Counts 1 to 3 while not specifically supportive of Counts 4 to 7.
4. The school friend's notes made at the time (June 1991 - Exhibit B, C and D) recorded a complaint in the same broad terms: that the complainant had been "sexually abused". In her evidence she said that she had a "vague recollection" of a complaint involving the perpetrator "forcing their hands on the person … either down the person's pants or something to that effect". (AB 439)
5. The complainant said that she told the applicant's mother that the applicant "put his finger inside my vagina", a complaint that was more consistent with the events in Counts 4 to 7. However, the applicant's mother did not recall this. Her evidence was that she had heard from the complainant's brother that the complainant had alleged that the applicant had touched her between the legs. She confronted the complainant and was told the same thing. She said that if the complainant had described anything in more detail she would have remembered. (AB 180; 420-421)
6. It would have been well open to the jury to have regard to this evidence of complaints as providing support for the proposition that there had been indecent assaults but providing little or no support for the proposition that there had been sexual penetration.

The pretext conversation

1. At the instigation of police, the complainant called the applicant at his place of work on 28 May 2013. She spoke to him briefly, telling him that she wanted to speak privately about the sexual abuse he had inflicted upon her when she was a child. He said he was busy but gave her his mobile number and asked that she call back.
2. The complainant called the applicant back later and a conversation ensued for about 20 minutes. A recording of the call, and a transcript, were before the jury. Overall, the conversation involved the complainant trying to have the applicant admit to having sexually abused her and also to admit to specific acts that constituted such abuse. Throughout the conversation the applicant was apologetic. It was well open to the jury to construe the conversation as involving admissions to sexual abuse, specifically to indecently assaulting the complainant. For example: "I remember stuff happening on different occasions. … So, mostly the things I remember is taking you for piggy backs and touching you on the vagina. That's all I remember. That's pretty much the only bits that I remember from and that happened on a number of occasions and I remember I was pretty young if I was doing that to you and I know you were younger and that I'm really sorry that it happened …" (AB 67)
3. Significantly, however, he was adamant that he did not have intercourse with her. For example: "Yeah ok, I'm absolutely certain that ["you having sex with me"; "you raped me"] did not happen. I definitely did not have sex with you and I definitely do not have any recollection whatsoever of raping you. So, look if that's what you remember now then maybe your memory is way distorted …" (AB 71)
4. In his evidence, the applicant sought to explain that he was taken aback by the call. He said he was trying to help the complainant to move on; he comforted and counselled her; he sought to appease her and to say what she wanted to hear; he tried to make her feel better and placate her. He thought there was no harm in apologising to her "for whatever she thinks is going on in her head. It's no skin off my nose. And perhaps it can be of a great benefit to her." (AB 465.15)
5. The applicant was asked about the admission to touching the complainant's vagina. He said it was not a truthful statement and: "I answered like that because I thought that this whole conversation, I'm actually this is about the piggy backs that happened because that was the only thing back when we had the original phone call to my mother that I believed all these years that this is what that is about that she has somehow misinterpreted that I had inappropriately touched her when I gave her some piggy backs in the backyard. Whether I touched her on the vagina actually I have no idea." (AB 466)
6. His counsel asked if he would have intended to touch the complainant on the vagina. The applicant replied, "Absolutely not". (AB 466)
7. Towards the end of the cross-examination by the prosecutor the applicant gave the following evidence: "Q. Throughout all of that conversation when she put all of those allegations to you where she went from grabbing, talking about grabbing, to you lying and rolling around on her, to penetrating her with your finger, to as you described it alleging that you engaged in penis to vagina sexual intercourse with her, the only thing you denied through that whole conversation flatly was the last thing, that is penis/vaginal intercourse. A. Yes, because I was trying to help her by not saying anything that would perhaps make her feel worse." (AB 506)
8. It would have been well open to the jury to accept the evidence of this conversation as supporting the complainant's account of having been indecently assaulted by the applicant on multiple occasions. Although there was no admission by the applicant of any of the specific events with which Counts 1 to 3 were concerned, the admissions that were made were capable of supporting the complainant's assertion that the charged indecent assaults occurred.
9. Given the applicant's unequivocal denial of sexual intercourse it would have been apparent to the jury that the complainant's evidence in relation to Counts 4 to 7, in contrast to her evidence in relation to Counts 1 to 3, remained unsupported.

Conclusion

1. There is a perfectly logical and reasonable basis for the jury to have been satisfied beyond reasonable doubt of the guilt of the applicant in respect of Counts 1 to 3 but not in relation to Counts 4 to 7. This had nothing to do with there being a doubt about the complainant being "a witness of truth". It had everything to do with the jury finding support for her evidence in relation to the conviction counts but not in relation to the acquittal counts.
2. For these reasons, and because of the unsatisfactory explanation for the substantial delay in instituting these proceedings, I propose the following order: Application for extension of time to seek leave to appeal against conviction refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2017