P C R v The Queen [2013] VSCA 224

1 After a second trial in the County Court, the appellant was convicted on one charge of an indecent act with or in the presence of a child under 16, nine charges of sexual penetration of a child under 16, one charge of attempted sexual penetration of a child under 16 and one charge of making a threat to kill. The jury in the first trial were discharged without reaching a verdict.

2 A plea was conducted and the appellant was sentenced to be imprisoned for a term of 6 years on each of two charges of sexual penetration, for a term of 5 years on each of three charges of sexual penetration, for a term of 5 years and 6 months on each of three charges of sexual penetration, for a term of 7 years on one charge of sexual penetration, for a term of 3 years on the charge of attempting sexual penetration, for a term of 1 year on the charge of indecent act and for a term of 2 years on the charge of making a threat to kill. With a measure of cumulation, a total effective sentence of 11 years' imprisonment was produced. A non-parole period of 7 years and 9 months' imprisonment was fixed.

3 The appellant sought leave to appeal on seven grounds. A single judge of the Court granted leave to appeal on one ground and refused leave to appeal on the other grounds. The appellant has elected to renew before this Court his application for leave to appeal on all but one of the grounds refused by the single judge.

4 The appellant is the former de facto partner of the mother of the complainant. The complainant was born on 30 September 1988.

5 In 1997 the relationship between the appellant and the complainant's mother ceased and the appellant left the family home and moved into a flat in Newborough and later into a house in Traralgon. The complainant frequently visited the appellant at the flat and the house and stayed overnight with him.

6 The principal Crown witness was the complainant, who gave evidence that she was sexually assaulted by the appellant on a regular basis when she stayed at his flat and house.

7 In December 1998, when the complainant was 10 years of age, she went to the Newborough flat with the appellant to make a phone call in his bedroom. The appellant put his hands on the complainant's shoulders and told her to lie down on the bed. The appellant got on top of the complainant, who said she could feel his erect penis beneath his pants against her upper thigh. (Charge 1 - indecent act with a child under 16.)

8 About two weeks after the first incident, the complainant stayed overnight in the spare bedroom at the flat and was woken by the appellant putting his hand over her mouth. He held one hand to her chest and told her to keep quiet. He opened a condom with his mouth and said, 'This is so you won't get pregnant'. The appellant got on top of the complainant and penetrated her vagina with his penis. He told her that if she ever told anyone, he would kill her. (Charge 2 - sexual penetration of a child under 16; charge 3 - threat to kill.)

9 On 31 December 1999, the complainant and her brother stayed overnight at the flat. The complainant got out of bed to watch fireworks. When the fireworks finished, she saw the appellant standing in the doorway. He said something like, 'Why don't you come in. I was waiting for you.' The appellant took the complainant's hand, led her back to her room and put a chair up against the door. He got on top of her and penetrated her vagina with his penis. (Charge 4 - sexual penetration of a child under 16.)

10 In December 2000, the complainant stayed overnight at the flat. The appellant had vaginal sexual intercourse with the complainant. The condom the appellant was using slipped off his penis before he ejaculated. (Charge 5 - sexual penetration of a child under 16.)

11 The appellant asked the complainant on a regular basis whether she had her period. He obtained a pregnancy test kit, which produced a positive result. In early 2001, when the complainant was about six weeks pregnant, the appellant entered the spare bedroom of the flat and penetrated her vagina with his penis without wearing a condom. The appellant told the complainant that the only good thing about her being pregnant was that he did not have to wear a condom. (Charge 6 - sexual penetration of a child under 16.)

12 The appellant took the complainant to a doctor in Newborough to discuss the pregnancy. He told the complainant's mother that he was going to take the complainant to Brisbane to find a new home for the family. Instead, the appellant took the complainant to the house of his sister in New South Wales where they stayed for about a week. On 20 February 2001, when the complainant was 12 years' old, she underwent an abortion.

13 While staying in the appellant's sister's house, the appellant and the complainant slept in a room containing two single beds pushed together. On one occasion when they were in bed, the appellant moved up to the complainant and asked her to give him oral sex. She put his penis in her mouth. He asked her to stop because he did not want to ejaculate and make a noise.

14 On another occasion, when the complainant was staying at the flat, the appellant and the complainant were watching television in the lounge room. The appellant got up from his chair, took the complainant by the hand and led her behind the couch in the middle of the room. He got on top of the complainant and penetrated her vagina with his penis. (Charge 7 - sexual penetration of a child under 16.)

15 On another occasion at the flat, the appellant was having vaginal intercourse with the complainant in his bed when he looked down and told her that she was bleeding. The appellant stopped having sex with her and left the room and had a shower. (Charge 8 - sexual penetration of a child under 16.)

16 On another occasion at the flat, the appellant made the complainant perform oral sex on him in the bedroom. The complainant was on her knees and the appellant was standing beside the bed. The appellant placed his penis inside her mouth. He told her that she was not doing it properly, grabbed her by the hair and threw her on to the floor. (Charge 9 - sexual penetration of a child under 16.)

17 In September 2001, at the Traralgon house of the appellant, the appellant attempted to sexually penetrate the complainant with his penis from behind. She did not co-operate and he was unable to penetrate her. (Charge 10 - attempted sexual penetration of a child under 16.)

18 On another occasion at the house, the complainant was watching cartoons after school. She was wearing a school dress. After the appellant came home from work and had a shower, he entered the room with only a towel wrapped around him. He put his hand up the complainant's dress and took her underwear off. The appellant penetrated her vagina with his penis on the couch. (Charge 11 - sexual penetration of a child under 16.)

19 On a further occasion at the house, the power failed during a summer storm. The appellant lit a candle and said to the complainant, 'Well, there's nothing else to do so come to the bedroom'. He took her to the bedroom, undressed her and put his penis into her vagina. (Charge 12 - sexual penetration of a child under 16.)

20 While the appellant was living at the house, he would enter the bathroom on occasions when the complainant was showering. The complainant recalled the appellant being naked in the shower with her, touching her breasts and penetrating her vagina with his fingers. On the final occasion that he entered the shower with her, she urinated on his hands to try to make him stop touching her.

21 In January 2003 the complainant moved to Brisbane with her mother and her siblings. She made a statement to the police on 2 February 2005. On 19 October 2005, at a police station in Queensland, the complainant made several telephone calls to the appellant, which were tape recorded.

22 The appellant was interviewed by the police and admitted taking the complainant to Sydney for an abortion, but denied the allegations of sexual impropriety.

23 The first ground of the application is that the trial judge erred in allowing the pre-recorded evidence of the complainant from the first trial to be admitted in evidence at the second trial.

24 The evidence was admitted pursuant to the provisions of s 381 of the Criminal Procedure Act 2009, which provides that a recording of the evidence of a complainant may be admitted in evidence if it is in the interests of justice to do so.

25 According to cl 12 of Schedule 4 to the Act, s 381 applies 'to a hearing in a criminal proceeding if the hearing commences on or after' 1 January 2010. Each of the trials commenced after that date, but the committal proceeding which led to the trials was held in April 2008. The criminal proceeding against the appellant commenced when the presentment was filed on 25 July 2006. The relevant hearing in that proceeding commenced when the appellant was arraigned on 31 January 2010, more than two years after the date specified in cl 12. Accordingly, I do not think there is anything in this ground.

26 The second ground of the application is that the trial judge 'erred in deciding that the "pretext conversation" was not illegally obtained'.

27 On 19 October 2005, the complainant telephoned the appellant from a police station. The appellant's words were recorded by an ear piece, which was separate from the telephone, and the complainant's words were recorded by a microphone, which was also separate from the telephone.

28 Counsel for the appellant submitted that the recording breached s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth). The section prohibits the interception of a communication passing over a telecommunications system.

29 In my opinion, the recording of the conversation did not constitute an interception of a communication passing over a telecommunications system. The complainant's voice was recorded before the sounds reached the system; the appellant's voice was recorded after the sounds had passed through the system. The fact that the complainant's ear, the ear piece and the telephone were touching each other when the recording was made did not amount to an interception of the sounds as they passed over the telecommunications system.

30 The submission now advanced on behalf of the appellant was rejected by the Court of Criminal Appeal in South Australia in R v Giaccio.[1] Cox J said:

I would see the telephone system as (to put it symbolically) starting with a handset microphone and ending with a handset loud speaker ... It is true that the system will not operate unless sound is fed into it at one end and out of it at the other, but it does not follow from this that the sound waves that are external to the equipment at these two points are part of the telecommunications system itself.[2]

31 The third ground of the application is another attack on the admission of the same telephone conversation. It was contended on behalf of the appellant that the trial judge erred in admitting the evidence as tendency evidence.

32 Section 97(1)(a) of the Evidence Act 2008 provides that evidence of a tendency that a person had is not admissible to prove that the person acted in a particular way unless the party seeking to adduce the evidence gives reasonable notice in writing to each other party of the intention to adduce the evidence. No written notice was given of the Crown's intention to lead evidence of the conversation.

33 The short answer to this ground is that the appellant made admissions in the course of the conversation and accordingly it was properly admitted, occasioning no miscarriage of justice. In his charge to the jury the trial judge did not characterise the evidence as tendency evidence, but rather as evidence of admissions and as evidence of the sexual interest of the appellant in the complainant. The directions given by the trial judge as to the use the jury could make of the evidence were appropriate. No criticism was made by counsel for the appellant of the content of the directions.

34 Ground 4 of the application is that the trial judge erred in admitting evidence that the appellant touched the complainant in the shower, had oral intercourse with her and had sexual intercourse with her on a number of unspecified occasions.

35 None of the evidence was the subject matter of a charge, but a tendency notice was given and the evidence was admitted as tendency evidence. The complaint is that the evidence did not have significant probative value as required by s 97(1)(b) of the Evidence Act 2008. It was also submitted that any probative value the evidence may have had did not outweigh its prejudicial effect and thus the evidence ought to have been excluded pursuant to s 101 of the Evidence Act.

36 The evidence did disclose the appellant's sexual interest in the complainant and his tendency to act towards her in a manner consistent with his actions the subject matter of the charges. The evidence, in my view, significantly increased the probability of the appellant committing the charged offences.

37 Counsel for the appellant relied upon the decision of this Court in CGL v DPP.[3] In that case it was held that evidence that the accused was sexually attracted to and sexually molested girls aged between eight and 13 years did not establish a tendency to sexually molest a particular girl. The Court said that the lack of specificity in the similarities relied upon by the prosecution in the accused's behaviour told against the conclusion that the evidence had significant probative value. In my opinion, generalised evidence of sexual attraction and misbehaviour to several persons is in a different category to evidence of sexual attraction and misbehaviour to the same complainant. Evidence of the latter kind has a powerful probative effect.[4]

38 The only prejudice that the evidence may have occasioned is to render it more likely that the appellant would be convicted. That is not unfair prejudice within the meaning of s 101.[5]

39 The fifth ground of the application is that the trial judge failed to clearly direct the jury that the pretext conversation could not be used by the jury as an admission of guilt of charge 5 or any of the other offences.

40 In his address to the jury, the prosecutor relied on the conversation as an admission of guilt to charge 5. Charge 5 concerned the occasion on which the complainant said the condom slipped off the appellant's penis and resulted in her pregnancy.

41 In the course of the pretext conversation, the appellant effectively admitted the existence of a sexual relationship between himself and the complainant.

42 The complainant said to the appellant that her counsellor advised her to speak to the appellant about what used to happen in Victoria. The appellant said to the complainant that she was not to blame herself for what happened and expressed an understanding as to the effect of what he had put her through. The appellant told the complainant that she was an innocent party, but he could not explain why he acted as he did other than that he might have been lonely.

43 The appellant encouraged the complainant to get help. He apologised to the complainant, particularly when reminded how young the complainant was. The complainant said that she did not know what sex was when he did 'that' to her. The appellant apologised. The complainant asked the appellant to explain why he had sex with the complainant when she was a little girl, to which the appellant replied that he could not provide an explanation. The complainant asked why the appellant did not admit to the offending when she went to Sydney for the abortion. The appellant's answer was capable of being construed as an admission as to the sexual intercourse that led to the abortion.

44 In my opinion, the pretext conversation contained sufficient material to enable the jury to come to the conclusion that the appellant admitted the existence of a sexual relationship between himself and the complainant, including the conduct constituting charge 5. The remarks relating to the abortion appear to me to be a reference to that conduct. The trial judge gave careful directions to the jury as to the use they could make of the conversation. He directed the jury that they were to be satisfied beyond reasonable doubt that the conversation amounted to an admission of responsibility for the pregnancy and of a sexual interest in the complainant. They were told they must be satisfied of the truthfulness of what was said and were warned that the appellant might make statements to placate the complainant or may make statements which were unreliable for other reasons. In all the circumstances, it does not appear to me that there was any injustice occasioned by the admission of the evidence.[6]

45 Ground 6 of the application is that the verdicts in respects of charges 8, 9, 10, 11 and 12 are unsafe and unsatisfactory in that they are based on evidence which was so vague and imprecise that no reasonable jury ought to have convicted the appellant. The appellant was granted leave to appeal on this ground.

46 As to charge 8, counsel for the appellant referred to the evidence of the complainant that the appellant 'pulled his penis out and the condom wasn't on there any more'. The prosecutor asked the complainant, 'At that time were you menstruating?'. The complainant replied:

Yes ... There was another time when Cruz wasn't staying over. I was sleeping in [the appellant's] bed. He liked to have me in his bed. He liked to have me in his bed when no-one else was over. The light went on and he was having sex with me and he looked down and there was blood all over the condom and all over the bed and he's gone, "You're bleeding", so he was rather disgusted and went and had a shower and I went and had a shower after him.

47 Counsel for the appellant submitted that it was not clear whether the evidence related to charge 5. In my opinion, however, the complainant identified two separate occasions, one when the condom was removed (charge 5) and another when the complainant was menstruating.

48 As to charge 9, counsel for the appellant pointed out that although in examination-in-chief the complainant gave evidence of one act of oral penetration, a friend of the complainant gave evidence that the complainant said she had suffered oral penetration a few times and in cross-examination said oral penetration occurred between five and ten times but could not recall any details.

49 The evidence-in-chief given by the complainant clearly identified a particular event. The complainant said that on an occasion in Traralgon the appellant placed his penis in her mouth, told her she was 'doing it wrong', grabbed her by the hair and threw her on the ground. The jury was capable of assessing the affect of other statements by the complainant which were inconsistent with her evidence-in-chief.

50 Counsel for the respondent conceded that the verdict on charge 10 was unsafe. The complainant's evidence did not disclose whether the appellant attempted to penetrate the complainant's anus or vagina and in my view the lack of precision in this case rendered the verdict unsafe. In my opinion, the concession by the Crown was justified.

51 Counsel for the appellant submitted that the complainant's evidence as to charges 11 and 12 was vague and imprecise. I disagree. The evidence of the complainant was specific and detailed. Her evidence as to the circumstances surrounding the commission of the offences disclosed the offending with certainty.

52 For the foregoing reasons, I am of the opinion that the appeal succeeds only to the extent that the conviction on charge 10 should be quashed. The sentence passed on that count, a sentence of 66 months' imprisonment, is to be set aside. The sentencing judge ordered that two months of that sentence was to be cumulated on the sentence on charge 2.

53 The appellant is aged 67 years. He left school at the age of 14 years and worked as a painter, miner and in equipment maintenance. He married and divorced. He has two children by his marriage and three children by the mother of the complainant.

54 The appellant could rely upon his good work record, delay in proceeding

with the charges, his lack of relevant prior convictions, the fact that the sentencing

judge found he had reasonable prospects of rehabilitation and the fact that he had voluntarily desisted from abusing the complainant. On the other hand, the offending persisted over a considerable period of time, involved a grave breach of trust, the appellant was to be sentenced as a serious sexual offender from the fourth charge and, as the victim impact statement reveals, the offending had serious and long lasting affects upon the complainant.

55 In all the circumstances I consider that no different sentence should be passed on the charges other than charge 10 and that the orders for cumulation made below were appropriate. Accordingly, I would confirm the sentences passed below on all the charges save charge 10 and the orders for cumulation. In that event there is a total effective sentence of 10 years and 10 months' imprisonment. I would fix a non-parole period of 7 years' imprisonment.

56 I have had the advantage of reading the draft reasons of Buchanan JA. I agree with him, for the reasons he gives, that the appeal should be dismissed. I wish only to make some brief comments about ground 6, which complains about the admission of evidence of other sexual acts committed by the appellant against the complainant.

57 The submission on this issue was misconceived. Section 97 of the Evidence Act 2008 permits the admission of tendency evidence, if it has 'significant probative value', subject to the requirements in s 101 that it cannot be used against an accused if its probative value substantially outweighs any prejudicial effect it may have on the accused.[7] The requirement of 'significant probative value' for the admission of that evidence will often be satisfied when the Crown seeks to adduce evidence that the accused had committed sexual acts, other than those with which he or she has

been charged, against the same complainant, for the purpose of showing that the accused had both a sexual interest in the complainant and a willingness to act on that interest. As Redlich JA observed in JLS v The Queen:[8]

The cogency of evidence that the accused has previously committed sexual acts of a similar nature to the act charged with the same victim and for the same reason, needs no elucidation.

It is not to the point that it might be viewed as having no greater credibility than the evidence of the charged acts. What must be considered is the contribution which such evidence might make, if accepted, to whether the facts to be proved are rendered more likely to have occurred.[10]

59 I agree with Buchanan JA that the appellant's reliance on cases such as CGL v DPP,[11] where there were several complainants and the question was whether the evidence given by each of them was cross-admissible in relation to the charges relating to other complainants, was entirely misplaced.

60 There was no ground of appeal relating to the jury directions which the judge gave about the use of this evidence.

[1] [1997] SASC 6103; (1997) 68 SASR 484.

[2] Ibid, 491. See also R v Migliorini [1981] TASRp 8; [1981] Tas R 80; R v McHardie [1983] 2 NSWLR 733.

[3] [2010] VSCA 26; (2010) 24 VR 486.

[4] See R v NKS [2004] NSWCCA 144.

[5] Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297, [91]-[92].

[6] FMJ v R [2011] VSCA 308; WK v R [2011] 33 VR 516.

[7] This is also subject to the provision for exclusion of evidence under s 135.

[8] [2010] VSCA 209, [28].

[10] R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 [33] (Simpson J with whom McClellan CJ at CL and Grove J agreed).

[11] [2010] VSCA 26; (2010) 24 VR 486.