//
[2019] VSCA 60
General information, not legal advice.
Court of Appeal (Vic)
2019-03-20
Mr J, Ferguson CJ, Beach JA, Weinberg JA
Original judgment source is linked above.
DPP v Martin (a pseudonym) [2018] VCC 1228 (Judge Hannan)
CRIMINAL LAW - Conviction - Application for leave to appeal - Maintaining a sexual relationship with a child under 16 - Whether substantial miscarriage of justice occurred because charge of maintaining sexual relationship with a child spanned too long a period and contained too many occasions - Charge spanned more than 6 years, contained 18 occasions and involved 30 acts of offending - Large number of uncharged acts - Context evidence - Whether indictment overloaded - No miscarriage of justice - Rational forensic decision made by defence counsel to have large number of uncharged acts placed before jury for purpose of submitting that complainant's evidence not believable - Reliance by defence counsel on number of occasions particularised in charged acts - ; referred to.
CRIMINAL LAW - Conviction - Application for leave to appeal - Maintaining a sexual relationship with a child under 16 - Jury finding 9 of 18 alleged occasions occurred - Jury not unanimously satisfied of factual allegations in remaining 9 occasions - Whether verdict unsafe or unsatisfactory having regard to jury's conclusions - Principles concerning inconsistent verdicts not directly applicable - No factual inconsistency in verdict - Verdict not unsafe or unsatisfactory.
CRIMINAL LAW - Conviction - Application to adduce fresh evidence - Evidence not fresh - Evidence capable of being called at trial with reasonable diligence - Evidence having no real likelihood of leading jury to different conclusion - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Maintaining a sexual relationship with a child under 16, intentionally causing injury and common assault (12 charges) - Sentenced to 12 years imprisonment with non-parole period of 8 years and 6 months - Fresh evidence - Applicant diagnosed with stage IV metastatic mesothelioma after sentence - Limited life expectancy - Diagnosis constituting fresh evidence - Not reasonably arguable that Court of Appeal would now impose sentence of a length that would give applicant any hope of being released - Application for leave to appeal futile - Application refused.
1 Between 9 April and 2 May 2018, the applicant stood trial in the County Court on one charge of maintaining a sexual relationship with a child under 16 (charge 1), one charge of intentionally causing injury (charge 2) and 12 charges of common assault (charges 3 to 14). The complainant in respect of all charges was the applicant's daughter.
2 On 2 May 2018, the jury returned verdicts of guilty to charges 1, 2, 3 to 6, 9, 10 and 13, and verdicts of not guilty to charges 7, 8, 11, 12 and 14. On 8 August 2018, the applicant was sentenced to a total of 12 years' imprisonment, with a non-parole period of 8 years and 6 months.[2]
3 The applicant now seeks leave to appeal against his conviction on the following grounds:
4 In January of this year, the applicant was diagnosed as suffering from Stage IV metastatic mesothelioma. Following that diagnosis, the Director of Public Prosecutions, who had previously commenced an appeal against sentence, contending that the sentence imposed by the trial judge was manifestly inadequate, abandoned her appeal. The applicant, however, filed an application for leave to appeal against sentence out of time, in which he advances the following proposed ground:
The sentence imposed by the trial judge has become disproportionate and excessive because of the diagnosis of stage IV metastatic mesothelioma and fresh evidence should be admitted to show the 'true state' of [the applicant's] health and a different and lower sentence passed.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
5 Charge 1 was a charge of maintaining a sexual relationship with a child under 16. [4] The charge was particularised as spanning the period from 1 January 2005 to 31 July 2011. The complainant was aged between 4 and 11 during this period. The indictment alleged 18 occasions in relation to charge 1, involving 30 instances of sexual offending.
6 Briefly, the Crown identified the occasions and the events that occurred on each occasion constituting charge 1 as follows:.
7 As we have already noted, charge 2 was a charge of intentionally causing injury. Charges 3 to 14 were separate charges of common assault. The events constituting charge 2 and the events constituting each of charges 3 to 14 were alleged to have occurred on unspecified dates between 1 January 2005 and 31 July 2011. In relation to some of these charges, it was alleged that the events constituting the charge occurred on one of the 18 occasions making up charge 1.
8 Briefly, the Crown particularised charges 2 to 14 as follows:
9 In order to establish charge 1, the jury had to be satisfied that on at least three occasions between 1 January 2005 and 31 July 2011, the accused committed the offences of sexual penetration of a child under 16 or performed an indecent act with or in the presence of a child under 16, in relation to the complainant.
10 The jury returned a verdict of guilty on charge 1, making it clear, in response to questions put by the judge in her Honour's charge, that they were satisfied of the occurrence of relevant offences in relation to nine of the 18 occasions specified in the charge. These were occasions 5 to 8 and 14 to 18. The jury were satisfied of each of the sexual offences particularised within each of those occasions. With regard to the remaining 9 occasions, being occasions 1 to 4 and 9 to 13, the jury answered the questions put to them by the judge by indicating that they were not unanimously satisfied that the particular sexual acts specified within those occasions were proved.
11 Consistently with their conclusions in relation to charge 1, the jury found the applicant guilty on charges 2 to 6 and 9, being those that related to events said to have occurred on occasions that the jury found to have been established in relation to charge 1; and not guilty on charges 7 and 8, which involved events alleged to have occurred on the charge 1 occasions that the jury did not find had been established.
12 In relation to the remaining charges (charges 10 to 14), being charges not alleged to have occurred during an occasion that made up charge 1, the jury found the applicant guilty on charges 10 and 13; and not guilty on charges 11, 12 and 14.
13 The complainant gave her evidence in-chief by way of three VAREs.[5] The first VARE ('VARE 1') was conducted on 18 October 2012; the second ('VARE 2') was conducted on 9 November 2012; and the third ('VARE 3') was conducted on 11 November 2012. The complainant gave evidence in accordance with the particulars of the charges set out in the indictment.
14 She also gave evidence of many other occasions on which the applicant had sexually molested and physically abused her. The evidence was led in order to put the events alleged in the charges in context. As part of the context evidence, the complainant said that she had been assaulted by the applicant 10 to 12 times a day for two years. She also said in relation to penile penetration:
I probably have to go with like 1200 times it happening or something like that because he did it so many times a day, and also with his penis one he did that way more than he did with the dildo.
15 The complainant was cross-examined on the basis that none of the events she alleged had occurred. The reliability and credibility of the complainant were put in issue during an extensive cross-examination.
16 The prosecution called the complainant's mother, Mrs Martin.[6] She gave evidence about the family's background, and the home in which they lived during the period of the alleged offending. The family unit comprised the applicant, Mrs Martin, the complainant and the complainant's brother, CB.[7] During the period of the alleged offending CB was aged 5 to 12 years.
17 Mrs Martin's evidence was that she first learnt of the applicant's misconduct when the complainant said, during a parent teacher meeting in June 2012, that she had been touched by the applicant. Mrs Martin's evidence was that she did not see any sexual abuse take place.
18 The Crown called a school chaplain, Ms W. She gave evidence of a conversation with the complainant in February 2011 where the complainant said to her that the applicant had 'touched her bottom'. Ms W also gave evidence that in June 2012 the complainant told her of 'some of the distressing things she was being subjected to or had been subjected to earlier [by applicant]'. The prosecution also called the teacher, Ms C, to whom the complainant had made her disclosure during the course of the parent teacher meeting in June 2012.
19 The police officer who conducted the initial disclosure interview with the complainant, Detective Burrows, was called, as was another officer, Detective Grant. Detective Grant gave evidence of receiving some notes made by the complainant, and of the complainant making drawings in Detective Grant's notebook during VARE 3.
20 A medical practitioner, Dr Andrea Smith, gave evidence of a forensic medical examination conducted on the complainant on 1 November 2012. Her evidence was that because of the complainant's distress she was unable to complete her examination, notwithstanding the complainant's request for the examination to continue.
21 Finally, the prosecution called a psychiatrist, Dr Teresa Flower. Dr Flower gave evidence of her expertise in child and adolescent psychiatry as it relates to the making of complaints of sexual abuse by children. In summary, her evidence was that 30 per cent of children disclose abuse at the time of abuse; a further 30 per cent 'will disclose it in the future'; and the remaining 40 per cent 'never disclose'.
22 The applicant gave evidence at trial denying each and every allegation of sexual and physical abuse. While he admitted having made a green coloured dildo, he denied ever using it in respect of the complainant.[8]
23 The applicant called two medical experts. Dr Byron Collins, a consultant forensic pathologist, was called to give evidence of an examination he conducted, in April 2017, of the applicant's penis. The purpose of this evidence was to attempt to show that the complainant's evidence was not accurate.
24 The applicant also called Dr Andrew Gibbs, a clinical neuropsychologist. Dr Gibbs gave evidence of his expertise in relation to memory. His evidence included evidence about how memories can be corrupted and how 'pseudo-memory' can be produced. He said pseudo-memory could be caused by repeated questioning or the asking of closed questions rather than open-ended questions. It was possible that counselling could effect changes in memory, although he qualified his answer by saying that in the present case he had not seen any counselling notes.
25 Dr Gibbs also gave evidence about 'infantile amnesia', saying that there is 'a period known as infantile amnesia where we don't have any memories of our past when we were a very young infant and young people, young children'.
26 The credibility and reliability of the complainant were central issues at trial. Both sides relied upon the extensive context evidence that had been given by the complainant. Each side, however, relied upon that evidence for different purposes.
27 The prosecution contended that the context evidence explained why the complainant did not complain about the alleged offending at the time it occurred, and why she submitted to the acts which were the subject of the charges. In addition, the prosecution submitted that the 'full context' was relevant to why there was delay in the complainant reporting matters to authorities. It was also submitted that the context evidence was relevant in assessing the accused's state of mind at the time of the alleged offending, 'including why he felt able to act in such a brazen manner'.
28 The defence submitted that the context evidence was relevant because it placed the evidence of the charged acts in a true and complete context showing how 'incredible, unlikely and untrue' the allegations in relation to the charged acts were. The defence submitted that the context evidence was relevant to an assessment of the complainant's credibility and reliability, and that the context evidence showed that the complainant's allegations were 'outrageous'.
Ground 1: the number of occasions and the period of time alleged in charge 1
29 In support of ground 1, the applicant complained about the number of 'occasions' alleged in charge 1, and the period of time over which they were alleged to have occurred. The applicant submitted that a substantial miscarriage of justice had been brought about as a result of the prosecution alleging 18 occasions, involving 30 separate sexual offences, in circumstances where only three occasions needed to be made out in order to establish charge 1.
30 In support of this submission, the applicant pointed to a number of pre-trial arguments which, in some cases, had taken place months before the trial. During the course of those discussions, the judge repeatedly expressed concern about the complexity of the case as charged, and the number of matters that the jury would have to consider in dealing with charge 1, even on its own. Her Honour was particularly concerned about the vast number of uncharged acts that were potentially to be led as context evidence.
31 In order to capture some of the flavour of what took place during these pre-trial discussions, we note that as far back as 4 October 2016, during the course of a directions hearing,[9] the judge voiced reservations regarding charge 1. Her Honour was particularly troubled, as we have said, by the vast number of uncharged acts that seemed to arise from the three VARE recordings made by the complainant.
32 A week or so later, on 10 October 2016, preliminary argument took place before Judge Ryan, who at that stage, was to be the trial judge. On that day, trial counsel referred to the 'overweighting' of the indictment. He complained of the 18 occasions upon which sexual offending was said to have occurred, which gave rise to 30 separate designated offences.
33 When Judge Ryan asked trial counsel whether he would prefer to have the Crown put up 30 individual charges against his client, rather than a single charge in the form of charge 1, trial counsel immediately responded that he would not seek any such amendment to the indictment. His Honour pressed him, asking, in these circumstances, what particular remedy, if any, he had in mind. Counsel replied 'I do not have a remedy your Honour', but added 'I'm ... putting people on notice and that there is no remedy, the remedy is in another place ... '.
34 The prosecutor acknowledged that the allegations contained within charge 1 covered a substantial period of time, and accepted also that they were numerous. She said that the drafting of the indictment had been a 'very difficult matter'. She added that the Crown had taken the view that the charge, as drafted, was the fairest approach that could be adopted. She insisted that the 18 occasions were each adequately particularised, and that the complainant's evidence in relation to each of those occasions was clear. She said:
Where the evidence is of a lesser quality, or is of a very generic nature, the Crown relies upon that as uncharged acts. The Crown does accept that the number of uncharged acts in this matter are enormous.
35 The prosecutor then added that since counsel for the accused sought no remedy, there was nothing that she could do. She then indicated that charge 1 would not be amended.
36 It later transpired that Judge Ryan had to recuse himself from the trial.[10] Judge Hannan took over the matter. Judge Ryan's rulings were effectively put to one side, and a number of the matters that had previously been determined were re-argued before her Honour.
37 On 20 March 2017, during the course of preliminary argument, the judge raised with the parties her own doubts about the form of the indictment. She said that she regarded the uncharged acts, contained within the complainant's VAREs, as giving rise to 'huge problems'. In making that observation, she noted that this evidence was to be led solely as 'context', and not as giving rise to 'tendency'.
38 The judge asked the prosecutor 'how much context do you need in a circumstance where you've already got a charge that contains the particulars that are contained in charge 1?'. Her Honour described charge 1 as 'unwieldy', and characterised it as 'unreasonable'. She expressed the view that 'context' should require nothing more than the complainant saying words to the effect of 'and it happened lots of times'.
39 The judge indicated that she fully understood that counsel for the accused might want the jury to know that the complainant had alleged that the sexual offending had occurred '600 or 1000 times'. The sheer improbability of such an account would presumably work to the benefit of the accused. Trial counsel stood by and did not cavil with that assessment.
40 On the following day, 21 March 2017, the judge again voiced her concern regarding the sheer volume of material that would fall within charge 1. She said:
And the problem, it's not only the volume. The problems are the volume, the half descriptions, the issue of relevance in relation to a number of things that are described that don't even relate to this complaint and the meshing of different incidents in a way that I'm not going to burden a jury with a whole lot of materials that context is - context in this sense really is necessarily limited by reality. You've already got a charge that has 18 particulars. I ask rhetorically how much context do you need?
41 The discussion continued along these lines. The judge exhorted the prosecutor to think again about the scope of charge 1, as drafted. Her Honour said that she would 'find it very difficult to ensure a fair trial' for the accused if the jury were to be swamped by the number of 'somewhat bizarre further allegations of penetration'.
42 When it came time for trial counsel to respond, he contented himself with reminding her Honour that he had always said this was an 'overloaded presentment'. The judge indicated that she understood the force of that criticism. She again made it plain that she did not want to have the 'trial swamped by a whole lot of uncharged acts, with no particular standard of proof, led as context in a trial that needs no context'.
43 On 24 April 2017, there was still further argument regarding the form of the indictment. The judge stated that she had a 'very firm but preliminary ... view' that this was an overly complex trial. She said that the 18 occasions, and the 30 charged acts within charge 1, were complex enough. She added that context should be confined to those parts of the complainant's evidence which made the narrative of the charged acts intelligible.
44 The prosecutor indicated that she had given careful consideration to her Honour's earlier comments. She indicated that the material to be placed before the jury, through the VAREs, would be reduced by more than 40 per cent.
45 On 28 April 2017, the prosecutor identified some of the contextual matters that she proposed to remove from the VARE material. She indicated that she was prepared to exclude all references to penetration by a bike handle, by a bar swing set, by cigarettes, by a ring-pull from a soft drink can, and by a Barbie doll. She would also exclude evidence concerning 'dress-ups' and certain of the events that were said to have occurred on a trip to Adelaide.
PROSECUTOR: In accordance with all of the discussions that we've had in court, your Honour, and to not overwhelm the jury and so on, and indeed in fairness to the accused, the Crown has removed that.
JUDGE: So you next want to deal with uncharged acts that the Crown now say should go out and the defence wants in.
PROSECUTOR: Yes.
JUDGE: So let's deal with those as agreed and I'll turn to [trial counsel].
PROSECUTOR: Yes.
JUDGE: [Trial counsel], what's the probative value of that evidence? Why do you want it in? Is it a forensic decision? What is it?
TRIAL COUNSEL: For the bike handle with the bar set, your Honour, it's bar swing set. In my submission articles like that may well cause injury. At the moment we have no evidence of an injury.
JUDGE: So you want to be able to cross-examine about that, yes.
TRIAL COUNSEL: Cigarettes, in my submission, would be unlikely. The can pull associated with injury. Barbie dolls - - -
JUDGE: Sorry, cigarette would be unlikely.
TRIAL COUNSEL: Unlikely.
JUDGE: Yes.
TRIAL COUNSEL: Barbie dolls are, in my submission, unlikely. The dress-ups would be unlikely. The use of the dildo on the mother is given in a description in the VARE which would be unlikely. The trip to Adelaide is fanciful.
...
JUDGE: Very well. So that can simply - I'll [cross] that line out of the chart which brings us to the category where you seek certain evidence which is, on its face, prejudicial to your client to remain within the trial for a forensic purpose. That's what you're telling me.
TRIAL COUNSEL: Correct.
JUDGE: Yes.
PROSECUTOR: Well, your Honour. I understand that my friend makes a forensic decision. I am simply concerned about the manageability of the trial and the jury being overwhelmed. I understand the forensic point made. One, you might expect injury or two, it's fanciful or unlikely. Within the charged acts those points can be made, but I - - - ...[11]
47 Later that day, the judge delivered a formal ruling regarding the evidence to be led as context in relation to charge 1:
The Crown seek to have admitted as context evidence a number of descriptions given by the complainant in relation to sensations she says she felt relevant to both the accused's penis and green dildo and importantly the distinction in sensation she says she was able to discern as between the two.
Context evidence in this case as a whole was a matter which I indicated at the outset concerned me significantly. I expressed from an early stage my concern in relation to the volume and detail of the material sought to be led, and the concern I had in relation to the potential swamping of the charged acts and the admission of unfair prejudicial evidence to the accused.
Those issues were however largely dealt with as a result of the defence applications to have the material led in circumstances where the Crown were persuaded not to seek to lead the evidence. [Trial counsel] made clear that despite potential prejudice, he had made forensic decisions to seek to have the evidence led, as he wished to cross-examine as to the unlikely nature and lack of physical injuries relevant to a number of those acts; on the basis that these descriptions had potential to seriously undermine the reliability and credibility of the complainant's evidence. It being clear that [trial counsel] made the decisions, having due regard to the real possibility of prejudice to his clients, I determined that the defence should be entitled to conduct their case in the way that they best saw fit provided, of course, that I remain satisfied that I can ensure a fair trial.[12]
48 Some months later, on 13 November 2017, the matter was called on again, this time for mention. The catalyst appears to have been the decision of the High Court in Chiro v The Queen[13] which had been handed down on 13 September 2017. That case, on appeal from South Australia, concerned a legislative provision in similar terms to s 47A(1) of the Crimes Act 1958 that formed the basis of charge 1 against the applicant.[14]
49 In Chiro, the High Court held that, in relation to an offence of that kind, the jury could be asked to answer a series of questions designed to elucidate which of the allegations of fact brought by the Crown they regarded as having been established.[15] The decision represented a significant departure from longstanding practice whereby a jury would simply deliver a general verdict of guilty or not guilty, and the judge would determine which, of the factual allegations contained within the charge should be regarded as having been proved.
50 During the course of the discussion at the mention, trial counsel repeated what he had said on so many previous occasions about the indictment being 'overloaded'. He reiterated his concern that the trial would be very complicated. When asked by the judge what, if anything, he wanted her Honour to do about the matter, he said that he could not usefully make any submissions at that stage. He added that he needed to know what the prosecution proposed to do with charge 1, in the light of Chiro.
51 On 5 December 2017, the matter came back before her Honour for yet another mention. She suggested to the prosecutor that Chiro might reopen the whole question of whether the indictment was oppressive. Presumably, this was because a jury might no longer be able simply to find that three acts of sexual offending had occurred, and stop at that point. They might have to go through the entire list of 30 such acts, as pleaded in this case, and indicate whether they were satisfied beyond reasonable doubt as to some, or all of them, and which ones.
52 Trial counsel submitted, without elaboration, that Chiro had increased the prejudice that his client would suffer in having to meet charge 1. Having expressed that view, he contented himself with commenting 'it is what it is'. He made no further submissions as to what, if anything, should be done regarding the form of that charge.
53 The judge asked counsel whether he wanted to re-agitate the entire issue of whether the trial would be unmanageable as a result of an overloaded indictment. Counsel replied that he was content to rely on his earlier written submissions. The judge then said that having already given two lengthy rulings on a stay application based substantially upon a claim that this was indeed an overloaded indictment, she could not see why she should revisit that matter. Nothing further was said.
54 Notwithstanding that trial counsel made it perfectly clear that he wanted to have evidence of a large number of uncharged acts placed before the jury, the applicant now contends, in support of ground 1 that charge 1, in the form in which it was presented to the jury, gave rise to a substantial miscarriage of justice.
55 In our view, that submission cannot be accepted. While courts must be astute to ensure that indictments are not overloaded, and that trials are not made unnecessarily complex,[16] in this case neither the number of occasions alleged, nor the period of time over which they were said to have occurred gave rise to any irremediable prejudice, or any substantial miscarriage of justice.[17]
56 While the applicant now complains about the 18 occasions, and 30 separate factual allegations embedded within them, the approach that his counsel took to these matters below was quite different. It is clear that he made a forensic choice (and indeed a perfectly rational one) to have as much of the complainant's evidence regarding acts of penetration, and other sexual offending, placed before the jury as possible.
57 As the judge put to trial counsel in argument at the conclusion of the evidence:
Given that the defence argued the context evidence in, in circumstances where I was prepared to exclude it, I assume you're going to make a submission about it.
58 Not surprisingly, counsel did just that. In his final address to the jury he submitted that, because of the sheer number of allegations made by the complainant, and the inherent improbability of many of them, her evidence was unbelievable, and should therefore be rejected. That argument was not confined to the uncharged acts led as context. It extended also to the charged acts, as particularised.
59 When one considers the cross-examination of the complainant and assesses the conduct of the trial as a whole, it is impossible to see how the applicant suffered any miscarriage of justice by reason of the number of occasions or specific sexual acts particularised. Had the prosecution reduced that number, it seems clear that trial counsel would have cross-examined the complainant with regard to at least some of the other acts excluded from the charge, as well as many of the uncharged acts. He would also have cross-examined the complainant with regard to the period of time over which these sexual offences were alleged to have occurred.
60 In our view, the jury were not 'swamped' by the evidence led in support of that charge. Even if they were troubled by the sheer number of allegations placed before them, this was part of a strategy deliberately chosen by trial counsel on behalf of the applicant, and understandably so. Ground 1 must be rejected.
61 In his original written case, the applicant summarised the evidence he contended was fresh evidence in the following terms:
Sexual abuse was alleged by the complainant to have taken place in the house ten to twelve times a day for two years. Her brother did not see any sexual act notwithstanding living in the same house.
62 That summary was based upon a statement that the complainant's brother, CB, had exhibited to an affidavit sworn on 2 October 2018. On 26 February 2019, CB swore a second affidavit which exhibited a second statement. The applicant made reference to the second statement in a revised written case. In the revised written case, and in oral argument, counsel for the applicant relied upon six matters which he contended were fresh evidence disclosed by CB's statements. The matters were:
(1) CB never witnessed the applicant participating in any sexual activity with the complainant.
(2) CB participated in a number of sexual acts with the complainant during their childhood.
(3) Those sexual acts included, but were not limited to, oral sex, 'licking [the complainant's] bum cheeks' and 'use of the family dog ... to coerce [the complainant] to perform a sexual act upon [CB].'
(4) CB's memory of committing other sexual acts with the complainant.
(5) CB's confrontation with the complainant 'over the allegations against the applicant and his statement to her "... I can tell when you lie" and the response of [the complainant] to that statement.'
(6) CB's evidence of watching pornography with the complainant.
63 Prior to the hearing in this Court, the Crown gave notice that it wished to cross-examine the deponents of the affidavits relied upon by the applicant in support of his fresh evidence ground (CB and the complainant's trial counsel and solicitor). After hearing short submissions, we determined that we would not be assisted by any cross-examination of the applicant's witnesses. The respondent then withdrew its application to cross-examine.
64 The applicant asserts that, in conferring with the complainant's brother prior to trial, and attempting to obtain a statement from him, the defence acted with reasonable diligence.
65 The short answer to this ground is that the evidence sought to be relied upon was not fresh. It was evidence that was capable of being called at trial. Having considered the material filed in support of the applicant's fresh evidence ground, we are unable to see how reasonable diligence did not require the applicant to subpoena CB to give evidence, and then to seek to ascertain precisely what admissible evidence he could give by having a Basha[18] hearing in relation to him.
66 More importantly, in the light of the complainant's mother's evidence that she also saw no sexual abuse involving the applicant and the complainant, this aspect of CB's proposed evidence would not have been of great moment in the context of the trial that was conducted. Specifically, it could hardly be said that it was evidence that had any real likelihood of leading the jury to a different conclusion from that to which they arrived.[19]
67 In our view, the same may be said of the balance of CB's proposed evidence. This evidence was vague as to detail. Moreover, in so far as this evidence suggested that CB engaged in sexual misconduct with the complainant when he was 7 or 8 years old, it was not credible. Additionally, the admissibility of CB's opinion about the credibility of the complainant's account and her reaction (which was non-verbal) to his statement that he could tell when she was lying must be doubted.[20]
Ground 8: are the verdicts unsafe and unsatisfactory because of the factual findings on charge 1?
69 As we have said in dealing with ground 1, charge 1 on the indictment, alleged 18 separate occasions, and 30 specific acts of sexual offending against the complainant.
70 The jury found that instances of abuse took place on nine of the 18 occasions particularised.[21] In support of ground 8, counsel for the applicant submitted that this figure of fifty percent was significant, and suggested that the jury may have compromised, rather than approaching their task by considering separately the evidence admissible in relation to each factual allegation.
71 In approaching the matter in that way counsel treated the jury's findings in response to the questions put to them by the judge as though this were a ground in the traditional form alleging inconsistent verdicts. Thus, it was submitted that on the cases put by both parties, there was no middle ground. The only issue in the trial related to the complainant's credibility. As the judge put it, 'either she is believed or she is not'. No rational explanation could be found, in those circumstances, for the jury's decision to treat some of the factual allegations as proved and others not.
72 Put another way, it was submitted that because of the manner in which the trial had been conducted, and the way in which the issues had been framed for the jury, the jury acting reasonably, would have had to embrace all of the complainant's allegations in respect of charge 1, or none of them. There was no room for a division of opinion of the kind that emerged. In particular it was submitted that there was nothing about the complainant's evidence that explained why the jury were able to find half the allegations proven, and the other half not proven.
73 Counsel for the applicant sought to support that submission by pointing in particular to occasions 8 and 9. Both of these acts alleged involved the introduction of a banana into the complainant's vagina. Both of these acts are said to have occurred on the same day. They both involved very similar, if not identical, conduct, yet the outcomes were different, occasion 8(b) being established but not 9(a). These findings were said to have all the hallmarks of an inconsistent verdict, brought about by way of compromise.
74 The premise upon which this entire ground rests involves a misconception as to the way in which the matter was left to the jury for their consideration.
75 When it came to the individual acts which went to make up the whole of charge 1, the jury were asked whether they were unanimously of the view that the occasion particularised had been made out. They were told that unless they were unanimously of that view, and unanimously in agreement as to the specific act alleged, their answer to the question put to them by the judge should be 'not proved'. In other words, unlike a verdict of not guilty, which would have to be unanimous, it would have been sufficient in relation to any of the sexual acts that were found not to have been proved, for even a single juror to have entertained a doubt as to that matter.
76 The distinction between a verdict, and a finding of fact of the kind arrived at in this case, is made clear by reference to the transcript dealing with two questions that were asked by the jury after they had commenced their deliberations. That transcript reads as follows:
JUDGE: Thank you Mr Foreman and members of the jury. I'm returning to the two questions that you provided yesterday in writing. I propose to read the question to you and then answer it. "(1) For the Foreman to say not proven, do we have to be unanimous on each of the occasions referring to Charge 1?" I indicate that I assume by occasion you actually mean event, event within the occasion. All right.
Your task is to return a verdict in relation to each charge on the indictment. In relation to Charge 1, in order to do that, you must be unanimously satisfied beyond reasonable doubt that the accused man committed at least one offence on at least three separate occasions. Now if you return a verdict of guilty on Charge 1, you will additionally be asked which offences, that is, which events on which occasions you are unanimously satisfied of beyond reasonable doubt. If you are - if you are not unanimously satisfied beyond reasonable doubt, of an offence, that is, a particular event on a particular occasion, you must find that event not proven.
Your findings will assist me in giving effect to your verdict. Now, Question 2: "For each charge, do we need to be unanimous to find the accused not guilty, or just to find him guilty?" The answer is, both. To find the accused guilty, you must be unanimously satisfied to find the accused not guilty. You must be unanimously satisfied. In both cases, satisfied means satisfied beyond reasonable doubt. I hope that's of assistance to you ...
77 Plainly therefore, her Honour distinguished between the unanimity required for a verdict of not guilty, and the inability of the jury to be unanimously satisfied of a factual allegation which would result in a simple finding of not proven.
78 It follows that the case law regarding inconsistent verdicts is not applicable to an exercise of the kind mandated by the High Court in Chiro. It is entirely possible that the apparent discrepancy between unanimous findings that nine particular occasions and fifteen specific sexual acts were proved, and the failure to achieve unanimous agreement in respect of other specific acts, or occasions stems from a single juror who may have had reservations about those latter matters. That is a far cry from the factual inconsistency that can arise from time to time where a jury unanimously convicts on one charge, and unanimously acquits on another, in circumstances that cannot rationally be explained.
79 It is unnecessary, in our view, to trawl through each individual occasion which produced a finding, beyond reasonable doubt, that the fact alleged had been proved, and compare it with other findings where the jury were unable unanimously to say that the allegation had been established. The statement 'unproved' means just that. It does not give rise to the affront to our system of justice that can arise when unanimous jury verdicts cannot be sensibly reconciled.
80 The jury were told in unimpeachable terms that they had to be unanimously satisfied of at least three of the occasions upon which the prosecution relied, in order to convict on charge 1. They were so satisfied.
81 In our view they were entitled to be so satisfied. There is nothing unsafe about the verdict on that charge, or indeed any of the other charges. More specifically, there is nothing unsafe about the verdict on charge one arising from the answers that the jury gave to the question posed by the judge as to whether they found the particular occasion proved, or were not unanimously so persuaded. Ground 8 must therefore fail.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
82 On 8 August 2018, the judge sentenced the applicant as follows:
Maintaining a sexual relationship with a child under 16 [Crimes Act 1958 s 47A(1)]
[Crimes Act 1958 s 47A(4)]
Intentionally causing injury [Crimes Act 1958 s 18]
83 In January 2019, the applicant was diagnosed with stage IV metastatic mesothelioma. His projected life expectancy is measured in months. The respondent accepts that the diagnosis is fresh evidence, but says that no different sentence ought now be imposed to avoid a miscarriage of justice.
85 While it may be accepted that the fresh evidence of the applicant's diagnosis of mesothelioma would reopen the sentencing discretion, the short point in the present case is that leave should be refused because the application for leave to appeal against sentence is futile. Having regard to the objective seriousness of the applicant's offending, it is not reasonably arguable that this Court would now impose a sentence on him of a length that would give him any hope of ever being released. On any view of the facts, the applicant could not be sentenced to anything other than a term of imprisonment of some years beyond his current life expectancy.[22]
86 As was said by Weinberg JA in argument, the applicant's current condition and prognosis is more properly a matter for the Executive to consider in the exercise of the prerogative of mercy.
87 The applications for leave to appeal against conviction and sentence will be refused.
[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
[2] DPP v Victor Martin (a Pseudonym) [2018] VCC 1228.
[3] At the commencement of the hearing, counsel for the applicant abandoned grounds 2, 4, 5, 6 and 7.
[4] The offence of maintaining a sexual relationship with a child under 16 was contained in the now repealed s 47A of the Crimes Act 1958. On 1 December 2006, by s 11 of the Crimes (Sexual Offences) Act 2006, the offence was renamed to 'persistent sexual abuse of a child under the age of 16'. The elements of the offence, however, were not changed, and remained the same during the period of the applicant's alleged offending.
[9] Somewhat fortuitously before the very judge who ultimately conducted the trial.
[10] The reasons for this are not presently relevant.
[13] [2017] HCA 37; (2017) 260 CLR 425 ('Chiro').
[14] As previously indicated in footnote 4, the offence that formed the basis of charge 1 was contained in the now repealed s 47A of the Crimes Act 1958. The offence is now termed 'persistent sexual abuse of a child under the age of 16' and is found in s 49J of that Act.
[15] Chiro [2017] HCA 37; (2017) 260 CLR 425, 430 [1].
[16] Walker & Kormez v The Queen [2011] VSCA 160 [6], [10]; Bauer (a pseudonym) v The Queen [2015] VSCA 55; (2015) 46 VR 382, 388 [25]-[26], 408 [127]; Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425, 450-1 [51] (Kiefel CJ, Keane and Nettle JJ).
[17] See Criminal Procedure Act 2009 s 276(1)(b), (c).
[18] R v Basha (1989) 39 A Crim R 337. See now ss 198B and 198C of the Criminal Procedure Act 2009, which commenced on 3 March 2019.
[19] See Bowden v The Queen (2017) 54 VR 135, 137-8 [2]-[7] (Maxwell P and Kidd AJA).
[20] See Evidence Act 2008 ss 102-106; BA v The Queen [2012] VSCA 285 [21]-[25] (Buchanan JA, with whom Maxwell P and Osborn JA agreed).
[21] Allegations of fact 5, 6(a), 6(b), 7, 8(a), 8(b), 14, 15(a), 15(b), 15(c), 16(a), 16(b), 17, 18(a), 18(b) proven, with allegations of fact 1, 2, 3, 4(a), 4(b), 4(c), 9(a), 9(b), 9(c), 10(a), 10(b), 11(a), 11(b), 12, 13 not proven.
[22] In any event, the total effective sentence imposed upon the applicant for this offending seems to us, at the very least, to have been within range.
Martin (a Pseudonym)
The Queen [No 2] [2019] VSCA 60
(2017) 260 CLR 425
(2015) 46 VR 382
(2017) 54 VR 135