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[2003] VSCA 129
mixed. Leave to appeal was granted. The convictions and sentences on counts 1, 2, 5 and 6 were set aside and a new trial was directed on those counts. The convictions on counts 3, 4 and 7 were affirmed, as...
The Court of Appeal upheld ALH's rape convictions but set aside his four indecent assault convictions. The indecent assault jury direction wrongly said that consent could not be a defence, even though the law then allowed it where the accused was no more than two years older than the complainant. The Court was divided about alleged contact between a juror and a person connected with an earlier trial. The majority found no miscarriage of justice on that issue; Callaway J.A. would have ordered a new trial on all counts. The Court also treated the omitted doli incapax direction as not requiring the rape convictions to be set aside.
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2,108 words · generated 30/09/2026
In R v ALH [2003] VSCA 129, the Victorian Court of Appeal considered an application for leave to appeal against convictions entered after a jury trial. ALH was convicted on seven counts involving alleged sexual offences against his younger sister, and acquitted on an eighth count. The earlier counts concerned events alleged to have occurred between 1988 and 1990, when the complainant was aged between 12 and 15 and ALH between 13 and 16 [103], [107], [110]. The eighth count concerned an alleged rape in 1995, more than five years after the earlier alleged offences [107].
No linked legislation citations have been extracted yet.
The appeal raised several grounds. They included alleged improper contact between a juror and JH, a complainant in an earlier trial in which ALH had been acquitted; the judge's directions about consent, the applicant's state of mind and good character; whether the acquittal on count 8 was inconsistent with the other verdicts; and whether the jury should have been directed on the common-law rule of doli incapax for counts 1 to 4 [122].
The decisive error concerned the four indecent assault counts. The applicable statutory provision allowed consent to be a defence where the accused was not more than two years older than the complainant. The judge told the jury that consent was not a defence, despite that age-gap exception. ALH was less than two years older than the complainant. The Court therefore quashed those convictions and directed a new trial on them [306]-[310], [321].
The outcome on jury interference divided the Court. Callaway J.A. considered that the allegation, supported by other material, could create a reasonable apprehension that the juror might have been influenced [29]-[41]. Cummins A.J.A. and Batt J.A. concluded otherwise [199]-[213], [77]-[84]. The majority result was that the jury-interference ground did not disturb the rape convictions. Those convictions were upheld, as were their sentences [321].
The Court treated the statutory consent error as a material legal error, rather than a minor defect in the judge's wording. Section 44(3) of the Crimes Act 1958 (Vic), as inserted by s 5 of the Crimes (Sexual Offences) Act 1980, provided that consent was no defence to indecent assault of a person under 16 unless the accused was not more than two years older [306]. The complainant was under 16 and ALH was less than two years older. The jury therefore needed to consider the legally relevant question of consent, rather than being told that consent could not provide a defence [310].
The error mattered in the circumstances. Cummins A.J.A. observed that it was open to the jury to conclude that the required state of mind under the provisions applicable at trial was not proved on the indecent assault counts [310]. The absence of an objection at trial did not cure the legal omission. The prosecution conceded that the relevant ground should succeed, and the Court set aside those convictions [310].
On the jury contact issue, the majority assessed the alleged communication from the perspective of a fair-minded lay observer who knew the material objective facts. Cummins A.J.A. assumed that JH had truthfully described his attempt to mouth a word to the juror, but concluded there was no material showing the juror had understood it as “convict” [196], [202]. The juror had, on his own initiative, told the judge's tipstaff that he thought he recognised JH from school. Cummins A.J.A. considered the juror's failure to report the alleged mouthed word consistent with thinking that the exchange was only a passing acknowledgement [202]. Batt J.A. similarly emphasised that there was no evidence the juror received or understood the intended message, and that the smile and wink could have had other explanations [81].
Callaway J.A. took a different view of the objective facts. He regarded JH's claim that he had influenced a juror, the complainant's account, Mrs Clarke's observation of visual contact and the juror's earlier identification of JH as mutually corroborative. In his view, that material could support a reasonable apprehension that the juror might have been influenced [29]-[41]. His conclusion did not prevail.
The doli incapax issue concerned counts 1 to 4, where ALH was under 14 for at least part of the alleged date ranges [234], [237]. Cummins A.J.A. said the trial judge should have given a direction because the question of incapacity arose as a matter of law [281]. But he concluded that, had the jury been properly directed, it would inevitably have found the necessary guilty knowledge on the evidence and that the proviso applied [281]-[286]. Batt J.A. agreed with that conclusion [74]. Callaway J.A. expressed the broader proposition that a jury could take account of the child's age and the acts constituting the offences, without needing additional facts, provided the criminal standard was met [56]-[59].
The judgment describes the doli incapax rule as part of the common law in Australia. In Victoria, s 127 of the Children and Young Persons Act 1989 conclusively presumed that a child under 10 could not commit an offence. For children aged 10 to under 14, the common-law rule required the prosecution to rebut the position that the child lacked criminal capacity by proving the relevant knowledge [281].
A significant point in the reasons is the explanation of what knowledge must be proved. Cummins A.J.A. framed it as knowledge that the conduct was “seriously wrong”, and not merely naughty or disapproved of by adults [278]. He considered that the acts charged could themselves be evidence of that knowledge if, assessed without simply attributing adult judgments to the child, they established the required knowledge beyond reasonable doubt [278].
The judges referred to the House of Lords decision in C v Director of Public Prosecutions [1996] AC 1. Callaway J.A. expressly said it was unduly restrictive and that contrary authorities should not be followed [56]-[59]. Cummins A.J.A. discussed the decision and agreed, in substance, that the restriction on using the acts charged as evidence had produced problems [265]-[278]. Batt J.A. agreed with the way the rule was understood by his colleagues [74]. The Court's reasoning therefore rejected the restrictive approach attributed to C for the purposes of the common-law rule before it.
The judgment also identifies the statutory law governing the indecent assault counts. It explains that s 44(3), inserted by the Crimes (Sexual Offences) Act 1980, applied to offences alleged between 1988 and 1990 [306]. Its age-gap exception meant that consent could be a defence where the accused was not more than two years older. The judgment's result illustrates that a direction omitting an applicable statutory exception may be material where it removes a live issue from the jury.
This judgment does not provide evidence of how later courts treated its reasoning. Nor does it establish the current state of legislation or later developments in the common law. The “after” position that can safely be described from this source is the Court's own holding: the restrictive approach to doli incapax was not followed, and the statutory consent exception was applied to the indecent assault counts before it.
At [196], Cummins A.J.A. sets out the apprehended-bias test: an informed, fair-minded observer must consider whether the juror might not be impartial. In plain English, the court does not ask only what the juror actually thought. It asks what concern an objective observer, informed about the relevant facts, could reasonably have.
At [202], Cummins A.J.A. explains why he did not find the test met. The evidence did not show that the juror understood the mouthed word, and the juror had not told the tipstaff about it. The majority treated those facts as weakening the inference that the juror had been influenced. Batt J.A.'s reasoning at [81] similarly focused on whether the attempted message had been received and understood.
At [278], Cummins A.J.A. states that the acts themselves may prove the knowledge required for doli incapax, if they establish beyond reasonable doubt that the child knew they were seriously wrong. In plain English, the prosecution does not always need separate evidence of what the child said or thought. The conduct may be relevant evidence, but the prosecution still bears the criminal burden.
At [310], the Court identifies the practical consequence of the age-gap exception. Since ALH was less than two years older than the complainant, the jury should not have been told that consent was no defence. The direction removed a question that the law allowed the jury to consider.
At [321], Cummins A.J.A. sets out the proposed orders: retrial on the indecent assault counts, but dismissal of the appeal as to the rape convictions. The Court's majority disposition reflected that division.
The jury-bias analysis is relevant to cases where someone connected with a proceeding allegedly communicates with a juror, or claims to have influenced one. The judgment stresses that the assessment turns on material objective facts, including what the juror was apparently told, whether the juror reported the event, the nature of any response, and the surrounding circumstances [196], [202]. It is not a rule that any contact automatically requires discharge: the Court divided on how the particular evidence should be understood.
The doli incapax discussion is relevant where an accused was aged 10 to under 14 at the time of the alleged conduct. The case focuses on whether the prosecution proved beyond reasonable doubt that the child knew the conduct was seriously wrong, and on whether the acts themselves, together with age and other circumstances, may support that finding [278], [281]. The judgment does not say that the nature of an alleged act automatically proves the child's knowledge.
The statutory consent issue arises under the historical provision considered in this case: an alleged indecent assault on a person under 16, where the accused was not more than two years older. On those facts, the judgment says consent could not simply be removed from the jury's consideration [306]-[310]. The precise statutory regime and dates matter.
The verdict-consistency discussion concerns separate counts with different dates and evidentiary circumstances. Here, the later, precisely dated count involved a direct conflict about the alleged date and broken door, unlike the earlier “between dates” counts. That permitted different verdicts without inconsistency [231].
The supplied judgment contains citations to earlier decisions, but it does not report later decisions applying or distinguishing R v ALH. It would therefore be unsupported to claim, from this material alone, that later courts adopted, limited or rejected its reasoning.
The relationships that can be identified from the judgment itself concern the authorities it considered. The Court used Webb v The Queen and related apprehended-bias cases when stating the juror test [23], [196]. Cummins A.J.A. cited Ebner v Official Trustee in Bankruptcy for the distinction between a real possibility and a remote possibility in the bias assessment, and Callaway J.A. referred to it in explaining the relevant test [38]. On doli incapax, Callaway J.A. expressly declined to follow the restrictive approach attributed to C v Director of Public Prosecutions [59].
Those are the judgment's treatment of earlier authorities, not evidence of subsequent treatment of ALH. Assessing later judicial use would require later judgments not included in the supplied material.
The judgment leaves several questions beyond the facts it decided. First, it does not establish a general threshold for when alleged juror contact requires an inquiry or discharge. The judges applied the objective apprehended-bias test but differed on how the same reported contact and corroborative material should be evaluated [41], [77]-[84], [199]-[213].
Second, the judgment does not specify how much weight must be given to the accused child's age, the nature of the act, personal development or other circumstances in deciding whether the child knew the conduct was seriously wrong. It states that the acts themselves may be evidence, but requires proof beyond reasonable doubt and cautions against attributing adult value judgments to children [278].
Third, the reasons concern a particular historical statutory provision on consent and a particular age difference. The judgment does not resolve how later statutory amendments, or different age-gap provisions, would apply to other alleged offences.
Finally, although the Court directed a new trial on the four indecent assault counts, it did not decide whether the prosecution would proceed. Cummins A.J.A. observed that the Director might consider whether a further prosecution was appropriate given the circumstances, but left that decision to the relevant decision-maker [318].
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(1) indecent assault at Grovedale between 1 February 1988 and 1 July 1988 of the victim under the age of 16 years;
(2) indecent assault at Newcomb between 1 September 1988 and 30 November 1988 of the victim under the age of 16 years;
(3) rape at Newcomb between 1 September 1988 and 30 November 1988 by introducing an object manipulated by him into the victim's vagina without her consent;
(4) rape at Newcomb between 1 October 1988 and 30 November 1988 by introducing an object manipulated by him into the victim's vagina without her consent;
(5) indecent assault at Clifton Springs between 1 September 1989 and 30 October 1989 of the victim under the age of 16 years;
(6) indecent assault at Shepparton between 1 May 1990 and 20 July 1990 of the victim under the age of 16 years; and
(7) rape at Shepparton between 1 May 1990 and 20 July 1990 by introducing his penis into the victim's vagina without her consent.
The applicant's defence was that he did not commit any of the sexual acts alleged against him.
(1) that the Judge erred in failing to conduct an enquiry into allegations of interference with the jury;
(2) that the Judge erred in failing to discharge the jury following allegations of improper communications with the jury;
(3) that the Judge erred in directing the jury as to how it could use evidence of good character; and
(4) that the verdict is unsafe and unsatisfactory.
Twenty-one months later, on 19 September 2002 by leave a further ground of proposed appeal was added, namely:
(5) that the Judge erred in that she failed to charge the jury in relation to the presumption of doli incapax for counts 1 to 4 on the presentment.
One month later again, on 30 October 2002 by leave a further two grounds of application were added, namely:
(6) that the Judge erred in not charging the jury on the issue of the applicant's state of mind in relation to the consent of this complainant; and
(7) that the Judge erred in charging the jury that the jury would be entitled to infer the guilty mind of the applicant if penetration were proved on the rape counts.
Then on 3 March 2003, by leave a further two grounds of application were added, namely:
(8) that the Judge erred in charging the jury in relation to consent and indecent assault as the applicant was not more than two years older than the complainant; and
(9) that the trial miscarried due to the combination or aggregation of the defects identified in Grounds 1 - 8.
Thus the final two grounds of application for leave to appeal against conviction were filed some 2¼ years after conviction and sentence. At trial the applicant was represented by experienced counsel. Different counsel appeared for the applicant before this Court.
Between February and June 1988 the victim, the applicant, their mother and her mother's then partner lived in a house in Grovedale. The victim was aged 12 years at the time and was in Year 7 at school. On one Saturday when her mother was attending an Alcoholics Anonymous meeting and the victim and the applicant were home alone, the applicant came into her bedroom. It was during the afternoon. The victim was wearing tracksuit pants or leggings which ended upon the floor. She could not remember how. Whilst she was lying on her bed the applicant was sitting on her bed leaning towards her feet area. He put his fingers inside her vagina, moving them around. She did not want him to do that. She did not say anything because she was too scared and felt inferior to him. She had always had low self-esteem and always thought the applicant was better than her. This was the first occasion anything like that had occurred. This incident lasted a few minutes and then the applicant left the room. She did not report the incident to their mother because she thought their mother favoured the applicant over her. She thought her mother's reaction might have been anger or disbelief. The victim also stated in cross-examination that she feared the applicant would hit her if she made a complaint.
The victim also stated that there was another incident during the same period. The circumstances of the offending were the same. This was not the subject of any specific count.
Between September and November 1988 the victim and the applicant were residing with Roberta Berger, her son, and her partner, Brian Brabham in a unit at Newcomb. One evening when Mrs Berger and Mr Brabham were attending an Alcoholics Anonymous meeting, and Mrs Berger's son was visiting his father in Melbourne, the applicant and the victim were home alone. It was a weeknight. The victim was watching television in the loungeroom. She was again wearing tracksuit pants. Her undergarments were removed. She could not remember how they came off. The applicant placed his hands around her vagina on the outside, and then on the inside.
This occurred immediately following the indecent assault which was the subject of Count 2. After that had occurred in the loungeroom, the applicant left the room and returned with a vibrator which the victim believed he obtained from Mr Brabham and Mrs Berger's bedroom. During the period of the applicant's absence the victim stated she froze, unable to move. The applicant then placed the vibrator into the victim's vagina, moving it around in a circular motion. She did not want him to do that. The vibrator was inserted in her vagina about 1 to 1.5 inches. Her hymen did not tear. She could not remember for how long, and thinks it was turned off. She did not say anything but just lay there and cried. Her legs were slightly open. She could not remember whether the applicant said anything. She said it felt like her stomach was being ripped out. She complained about a sore vagina several days later to her mother, and then received medical attention for thrush.
This occurred in the Newcomb unit approximately one month after the first rape involving the use of the vibrator. It was a repetition of the circumstances of the first rape. Mr Brabham and Mrs Berger were again attending an Alcoholics Anonymous meeting, and Mrs Berger's son, Jonathon, was away in Melbourne visiting his father. The incident again occurred in the loungeroom. The victim was wearing tracksuit pants (or leggings) and a top, and the applicant again inserted the vibrator into her vagina. She did not want that to happen. The victim again did not say anything and could not remember if the applicant said anything. She was too frightened to tell anyone. She was frightened of being disbelieved. She was crying during the incident. In cross-examination the victim agreed she did not tell police in her original statement about this incident with the vibrator. She said she was asked to make a "general" statement on the first occasion, and in her second statement (where she mentioned the use of the vibrator) she provided more specific details.
This occurred in September to October 1989 when the victim, the applicant and their mother were residing at Clifton Springs at the home of their mother's new partner, Robert Clarke and Mr Clarke's daughter. One evening between 8 and 9 p.m. the victim and the applicant, who were sharing a bedroom, were in their separate beds. The victim was wearing a nightie and underpants. The applicant pulled back her doona and sheet, pulled down her underpants, felt around her vagina, touching the outside and inside of her vagina with his fingers. The victim just lay there, and did not speak. The incident lasted no more than five minutes when the applicant left to go to the toilet. The victim put her underpants back on. Robert Clarke then came into the bedroom and asked was she all right. She told him "Yes, fine" and when the applicant came back and asked what Clarke wanted she said "Just to say goodnight". The victim did not tell anyone as she felt frightened of not being believed. She was scared that if she told anyone the applicant would then hit her or go further.
This occurred between 1 May and 20 July 1990 at Shepparton when the victim and the applicant were packing in preparation for their move back to Geelong. Their mother was in Melbourne at the time. The victim remembers being in her school uniform in the loungeroom when the next thing she knew she was on the floor, her underpants were removed by the applicant, and he then started to touch and feel around her vagina.
This occurred between 1 May and 20 July 1990 at Shepparton immediately following the indecent assault which was the subject of Count 6. The victim said that this was her first experience of sexual intercourse. The applicant inserted his penis into her vagina and eventually ejaculated. She was not consenting to what was happening to her. The applicant was on top of the victim during the incident. Neither the victim nor the applicant said anything. She was crying during the incident. She was hurting throughout the incident which lasted five to 10 minutes, and when she had a shower immediately afterwards she noticed a mixture of blood and semen in her vagina. Again she did not complain to anyone. She stated she felt inferior to the applicant as he often would adversely comment upon her weight or learning difficulties at school. She also felt intimidated.
In cross-examination the victim stated she told police that there were three or four more similar incidents of sexual abuse at Shepparton but she was unable to be clear about the details. The timing and place of the offending was unclear. There were no counts reflecting this activity.
This count related to a charge of rape alleged to have occurred on 23 July 1995, being the day after the complainant's mother's 40th birthday. The complainant said she was practising on her guitar in her bedroom. The applicant complained about her playing and she responded that she could do what she liked in her own bedroom.
The applicant then hit her across the side of the head quite forcefully and the next thing she remembered was being naked on the bed and the applicant having sexual intercourse with her until he ejaculated. The complainant's clothes were at the side of the bed. She did not say anything to him but thinks she was crying. She again had a shower after the incident. She was scared during this incident. Again, she did not complain to her mother.
The applicant denied the complainant's evidence. He stated that the complainant had been annoying him that night and that she then fled to her bedroom and barricaded herself in. The applicant broke the door off the hinges and spent the night trying to have the door fixed before his mother returned. The applicant stated that Ms McE was also present. Ms McE in evidence confirmed the breaking down of the door and the attempt to mend it on the day after the mother's fortieth birthday.
"[PROSECUTOR]: Can I inform Your Honour formally that just before 10.00 a.m. this morning, I received information in relation to a possibility that a person connected with the case, who wasn't actually a witness in this trial, J.H., the complainant from the previous trial, may have known a member of this jury and that J.H. who was present around and in the court at various stages from about Thursday lunch time last week and he may have had eye contact and possibly mouthed a word to this juror, apparently known to him. Now, it is only a suggestion at this stage, Your Honour, and it comes from two sources, both of which sources I have spoken to directly in the presence of my instructor this morning. Those two sources were the [complainant's mother and the complainant] in this trial. The information I was given was firstly as to the events of Thursday afternoon, that J.H. was present from approximately lunch time on Thursday, until after the jury were sent home, the oath having been administered on Thursday afternoon. He was also present in court during the administration of the oath, which to my recollection took place at about 4.30 or thereabouts, Your Honour, in the afternoon. [The mother] told me that she was sitting near J.H. and she saw him look at a young male juror and smiled at the young juror and that the juror winked at J.H. Her daughter told me that after they walked out of court, she said that J.H. said to her something to the effect of, 'You are going to win, just trust me' and she asked him what did he mean and did he know one of the jurors and he said, 'I'm not saying nothing' and then they all went home. On the Friday morning, Your Honour, there were no events of any significance apparently. After lunch downstairs, during the luncheon break, there was a group of people which included J.H. and the complainant, the two of them had a conversation together, apparently out of earshot of the others and she asked him directly, whether he knew one of the jurors and he said 'Yes' and she asked him, 'How do you know we're going to win?' and he, J.H., claimed that as the jury were leaving the court on the Thursday afternoon, after the administration of the oath, he had, he claimed, mouthed the word 'convict' to the juror and he said the juror smiled and winked and so forth. She asked him had he actually talked to the juror and he said 'No'. But he did say to her, 'Don't tell anyone about what he told her'. Now, Your Honour, the position is that as from now, as from the receipt of this information, J.H. will not be within a bull's roar of the jury, that will be a certainty when they are in the court, he will be kept well away, in fact, he will be sent away from the court shortly, he is at court just outside the court. Initially Your Honour, I was of the view that an enquiry would be appropriate and it's really a matter for Your Honour, I suppose at the end, whether Your Honour wished to hear from these witnesses or indeed wished to hear from J.H. But it has been pointed out to me Your Honour something that I did overlook, that J.H. would have to be warned if he were called as a witness or cautioned in fact about his right and probably he would have to be offered the right to consult with a solicitor in the circumstances before he would be asked any questions effectively, so that might render the whole procedure a bit pointless, as indeed it was pointed out to me Your Honour. I merely bring this to the court's attention pursuant to my duty prosecuting the case. I don't suggest, Your Honour, at this stage that it is anything more than a suggestion and bearing in mind my experience of J.H. and Your Honour's experience of him as a witness in the last case, the possibility of J.H. making these claims to promote himself or indeed to exaggerate the real situation completely out of proportion, in fact looms large I would respectfully suggest, Your Honour. And, Your Honour, it seems that from what I understand, Your Honour, there has been no suggestion that any juror has been sought to be overborne by J.H. I am not aware of any claims of influence or whatever being made to Your Honour and it may well be on the fact of the material that I have seen, although the Crown has got no reason to doubt what these two obviously honest people say happened, but they may have slightly misinterpreted what happened in court. So at this stage, Your Honour, I merely bring it to the court's attention. I note that the time is coming up, well, it's over six hours and I assume Your Honour may be considering saying something to the jury in terms of the overall state of their deliberations at this stage. As I say, I am in Your Honour's hands as to precisely, well, I am prepared to call these people as witnesses if that's the appropriate course that Your Honour sees, but perhaps the better view might be simply to let things rest for the moment. All of them are outside court but separated and will be here in the foreseeable future, Your Honour. HER HONOUR: Yes, good, thank you for that. Do you wish to respond? [APPLICANT'S SOLICITOR]: Your Honour, I make application that the jury be discharged and this allegation is obviously of the most serious kind and given what has been indicated to you by the prosecutor, Your Honour, it can be seen to be polluted and justice has to be seen to be done. The test is a high degree of need and it is my submission that's the situation here and I would ask Your Honour that the jury be discharged. As Your Honour pleases. HER HONOUR: I think I can put on the record that on Thursday after the first occasion when J.H. was in court, that one of the jurors and I suspect this is the same juror that we are talking about, the youngest juror indicated to my Tipstaff that he thought he knew the person that was identified as J.H., as having been to school or at the same school as him. He did not indicate that he knew who he was or that he was a friend or knew his association with the case or knew anything about the case because of that. Merely as a matter of prudence on his part, he pointed out that he recognised that person as somebody who had been to school at the same time when he was at school. This was not raised with you at the time, because there was no other knowledge that was imparted on the part of that juror and J.H. was obviously not a witness or otherwise directly associated with this case. Now, given that that juror has made that much known and has not throughout Friday or certainly this morning, in any way indicated that there was a contact of the type that has been now raised, I think two matters follow. First, I have the same concerns about any formal enquiry being made of J.H., for the obvious reason that would really not be productive of the evidence that we are seeking and secondly, I think that in the circumstances, there is not within the terms of the test that is required in these circumstances, there is not a sufficiently high degree of need demonstrated, just on the basis of the indications that has been shown to date, that would warrant a discharge of this jury. It is something that may need to be monitored in terms of anything that might be raised by that juror. I think it would be not warranted to make an enquiry of that juror at this stage and I think we should just see how things develop."
"Your Honour, I think we have finished our discussions for the day and want to come back in the morning to consider."
Accordingly the jury was excused overnight. The next day, at 11.21 a.m., verdicts on all counts were returned as I have stated. The jury was then finally discharged.
"But most importantly it is you twelve members of the community who have been chosen to decide the case, no one else. I do not decide the case, you decide it. It is your decision that is required and you will recall only a few moments ago you took an oath to give a true verdict according to the evidence, and so it would obviously be undesirable that your judgment should in any way be influenced by anything that might be said to you outside the court. So please do not discuss the case with anyone, except of course amongst yourselves. There is always the possibility or risk that someone might inadvertently approach you about the case or mention something to you about the case. If that should occur, and I hasten to add I have no reason to suppose that it will, but if that should occur, please bring it to my attention at the earliest opportunity. Indeed, members of the jury, if anything occurs during the course of this trial that troubles any of you or concerns any of you, do not hesitate to let me know, because as the trial Judge I am here to assist you as much as I can."
Fifth, the verdicts of the jury were unanimous, and the jury acquitted the applicant on Count 8 - a rational discrimination as I shall come to. All in all I consider that the fair-minded informed observer would not entertain the relevant apprehension stated by the authorities to which I have referred.
"You've got no prior convictions? ... No, never been in trouble."
(Less than a page later the applicant stated "My sister seemed to be a problem child"). No witnesses as to character were called by the defence.
"I should also tell you something about the fact that the accused has given evidence on oath. You should also understand that there is no obligation on the accused to do so. He could have declined to say anything and, had he done so, no-one could have made any comment about it. An accused has the right to remain silent. The accused rejected that course and chose to give evidence. By doing so he pledged his oath to tell the truth in his evidence. More importantly perhaps he, by choosing this course, the accused submitted himself to cross-examination, which is a means used by lawyers to extract the truth. There are two things to bear in mind about this. First, a guilty person might decide to attempt to brazen it out in the witness box in the hope that he will be more likely to be believed if he takes the risk of cross-examination than if he dodged it. Secondly, however, an innocent person can really do no more than choose this course, for by doing so the accused says in effect: this is what I say happened. I pledge my oath to it, and you can cross-examine me about it. You should weigh both these comments when considering what weight you should give to the accused's evidence. You should have regard to this evidence in the same way as you would any other witness's evidence, but remembering that the accused may be under some strain, under more strain than other witnesses, because he is the accused. You should also remember that by going into the witness box the accused does not assume any burden of proof. The burden of proof still rests on the Crown. In this case the accused has led evidence that he has not been convicted of any crime in the past and is of good character. Such evidence is led in disproof of guilt. It bears directly on the probability of the accused having committed the crime or crimes. Of course good character cannot alter proven facts. However, it is evidence that you should consider, along with other evidence, in reaching a conclusion as to whether the facts relied upon by the Crown have been proved to your satisfaction beyond reasonable doubt. Evidence of good character raises a presumption that the accused is incapable of committing the crime or crimes of which he is charged. Of course that presumption lasts only up to the point at which you find that, despite the accused's past good character, the Crown has proved beyond reasonable doubt that the accused did commit the crime or crimes of which he is charged. In this case you have been presented with two accounts of a series of events which differ markedly from each other. Where there is word against word, as it is sometimes called, you might think that it is your function to determine whether [the complainant] or the accused is telling the truth. This is not the case. Your function is to determine whether the prosecution has discharged its onus of satisfying you beyond reasonable doubt that [the complainant] was assaulted by the accused in the manner alleged. Remember that the accused does not have to prove anything, and it would be wrong for you to convict him simply because you do not believe his version of events."
So far as it went, that direction was conventional. (Speaking for myself I find the use of the notion of a "presumption"[23] of incapacity unhelpful, and probably erroneous, but it is conventional in some judicial circles and has the benefit of being favourable to an accused). On behalf of the applicant, before this Court (and by way of exception below) it was contended that the direction was erroneous by omission in that it failed to direct the jury as to the use which evidence of good character may be put on the question of the credit of the applicant before the jury. It was put that that was especially important in a case of word against word. I must say that I consider a direction as to credit use of good character would have been justified. Although there were no witnesses as to character called by the defence, and although a direction as to credibility is discretionary in Australia[24] I think it would have been better, and fairer, had a credit direction been given. Directions as to character, where justified, should be plenary rather than limited. On the other hand, it could be said that Her Honour's direction was generous to the applicant in that the substantive direction as to unlikelihood of offending, deriving from lack of convictions more than a decade after the offences, had a tenuous if not anachronistic relationship with the applicant's behaviour at the time of the offences. In any event, as I have said, a direction as to credibility is discretionary. No error by Her Honour in the exercise of discretion has been shown. In my view Ground 3 fails.
"And it was said by the ancient law that no one shall be hanged within the age, nor shall suffer judgment of life or limb. But before Spigurnel it was found that an infant within age killed his companion, and then concealed himself, and thereupon he was hanged; for he said that by the concealment he could discern between good and evil, quia malitia supplet aetatem."[32]
It was not until as late as 1588 that a clear age below which liability did not apply was fixed. Lambard's Eirenarcha when first published in 1581 did not state an age. However the third edition, published in 1588, stated that there can be no conviction of
" ... an infant under the age of twelve years, unless it may be by some evident token appear, that he had understanding of good and evil ..."
In the seventeenth century, the age of discretion became fixed at fourteen. Kean, following Maitland in a droll if not postmodern observation states:
"The reason for this is that Coke dogmatised the results of the Middle Ages and subsequent lawyers took his word. Hale accepted the fourteen-line; his statement that absolute immunity ceases at seven removed any doubt which may have existed."[33]
Parish registers for the registration of baptisms began in the time of Henry VIII and were regulated by a canon of 1603. An abortive attempt at civil registration was made in 1653 by the Long Parliament. Kean concludes:
"Finally, Coke's account of the law was accepted, and restated by Hale, and the lines were fixed at seven and fourteen. They remained unchanged until 1933, when the Children and Young Persons Act raised the age of which there can be no criminal responsibility from seven to eight."[34]
"The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."
In England the principle of ancient lineage was no more.
"No civilised society regards children as accountable for their actions to the same extent as adults."[41]
The ancient sense of justice and modern cognitive psychology come together properly to protect children in their development to adulthood. The "intermediate zone"[42] between 10 and 14 years is one of significant psychological, moral and personal development in children. The law should not be blind to its quality and character.
"It is conclusively presumed that a child under the age of 10 years cannot commit an offence."
At common law the traditional statement of the position was that between the ages of 10 and 14 years there was a presumption that the child is incapable of crime (doli incapax) but that that presumption may be rebutted by the prosecution.[45] The learned Judge in the present case should have instructed the jury (albeit briefly) on incapacity. That is because the question of incapacity arose as a matter of law. However, given the age of the applicant at the time of the offences charged (at the earliest date on count 1 he was 13 years 2 months of age, and the earliest date on count 4 was twelve days before the applicant became 14 years of age) and the relationship of the applicant and victim, I consider it would have been inevitable that the jury, properly instructed as to incapacity, would have found the requisite guilty knowledge in the applicant.
"You must bear in mind that when considering this element of guilty mind that it is the accused's state of mind which must be proved by the Crown. The question is not what would you, if you were in the accused's position, have realised that she was not consenting or might not be consenting. The question is did this accused realise she was not consenting or might not be consenting? Again, in the circumstances of this case if you were to find the first element proven [penetration] you would be entitled to infer this final element of a guilty mind of the accused."
This last passage ("Again, ...") may be a little blunt, but it is not erroneous in law. Her Honour had previously given the jury full and proper directions as to inferences. The presently impugned passage (no exception was made below) was that the jury "would be entitled to" - not "should" or "would" - infer. On the rape counts that inference was plainly open, given the circumstances including the relationship of the applicant and victim as natural brother and sister, the applicant's use of an adult's vibrator (Counts 3 and 4), penetration (Count 7) and the fact that the victim was crying on each occasion. If the jury accepted the victim's evidence - which the jury was entitled to do - it would be wholly unreasonable for the jury to have a doubt that the applicant was aware the victim was not consenting. There was no evidence or statement from the applicant that he had any such ignorance. His evidence and police statement were that he never performed such acts. This ground fails.
"is no defence to the charge unless, at the time the offence is alleged to have been committed - (c) the accused was not more than two years older than the person."
"Consent, if the victim is under 16 years of age, is not a defence to the charge. ... Her age at the relevant times is not in dispute, therefore you can be readily satisfied as to this element of the crime."
The applicant was born on 13 October 1974 and the victim was born on 10 January 1976. He was less than two years older than she. Accordingly Her Honour's direction that "consent ... is not a defence to the charge" was erroneous. Further, the error was not irrelevant. By s 9(1) Crimes (Rape) Act 1991 the amended sections 36 and 37 Crimes Act 1958 applied to the applicant's trial. On the evidence it was open to the jury to conclude as a reasonable possibility that the necessary state of mind of the applicant (s 37(1)(c)) was not made out on the indecent assault counts (as distinct from the rape counts). The absence of exception by counsel does not save this legal omission. It was upon a matter of significance legally and factually. It follows that the convictions of the applicant on each of the indecent assault counts (Counts 1, 2, 5 and 6) must be quashed. Responsibly and fairly, before this Court senior counsel for the Respondent has so conceded.
(1) The application for leave to appeal against conviction is granted.
(2) The appeal is treated as instituted and heard instanter and is allowed in part.
(3) The convictions sustained by the appellant on counts 1, 2 5 and 6 are quashed and the sentences imposed on those counts are set aside.
(4) The Court directs a new trial to be had on counts 1, 2, 5 and 6.
(5) The appeal is dismissed in so far as it relates to the convictions sustained by the appellant on counts 3, 4 and 7.
(6) The sentences of eight months' imprisonment on each of counts 3 and 4 and 11 months' imprisonment on count 7 are affirmed.
(7) The sentences imposed on counts 3 and 4 are, by operation of law, to be served concurrently with each other. The sentence imposed on count 7 is, by operation of law, to be served cumulatively upon the sentences imposed on counts 3 and 4.
(8) The total effective sentence is accordingly 19 months' imprisonment.
(9) The order suspending the whole of the sentence, now 19 months' imprisonment, for an operational period of three years beginning on 14 December 2000 is affirmed.
(10) The entry in the records of the County Court pursuant to s 6F Sentencing Act 1991 is set aside and the following substituted:
"ALH was sentenced for the offence the subject of count 7 as a serious sexual offender."
---
[1] Crimes Act 1958, s.568(2).
[2] Compare Maric v. R. (1978) 52 A.L.J.R. 631 at 634-635.
[3] It should be recorded that we have not heard JH's account. After an investigation, the Acting Director of Public Prosecutions decided to take no action.
[4] See Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41; R. v. Holt and Merriman (1996) 87 A.Crim.R. 82 at 86 and R. v. Matthews [1998] VSCA 2; [1999] 1 V.R. 534 at 537.
[5] R. v. Sussex Justices; ex parte McCarthy [1924] 1 K.B. 256 at 259.
[6] I take that formulation from the joint judgment of this Court in Rozenes v. His Honour Judge Kelly [1996] VicRp 20; [1996] 1 V.R. 320 at 329, but see also the joint judgment of the High Court in Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 C.L.R. 288 at 293-294 and Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 C.L.R. 337 at [6]- [7]. In Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41 it was held that the same test applies to a juror.
[7] Compare R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 865.
[8] (1987) 44 S.A.S.R. 591 at 493.
[10] [2003] VSCA 28. I refer to what I said in that case, with the concurrence of Eames, J.A., at [24].
[11] That is the standard. There is no useful analogy with insanity or mental impairment, where an affirmative burden of proof lies on the accused, or with procedural or jurisdictional questions. See, for example, Wendo v. R. [1963] HCA 19; (1963) 109 C.L.R. 559 and Thompson v. R. [1989] HCA 30; (1989) 169 C.L.R. 1.
[12] It is unnecessary for me to decide whether it was inevitable that they would be so satisfied.
[13] [1995] UKHL 15; [1996] A.C. 1 at 38E-39F. See also 6-10 per Laws, J.
[14] The language of presumption is wisely eschewed in s.4N of the Crimes Act 1914 (Cth) and s.7.2 of the Criminal Code (Cth). Sections 4N(2) and 7.2(2) correctly state the common law.
[15] I doubt that this point was in issue between the parties in R. v. CRH (unreported, New South Wales Court of Criminal Appeal, 18th December 1996). The main focus of the judgments is on knowledge that the conduct is seriously wrong, not just naughty or disapproved of by adults.
[16] See Sir John Smith's commentaries on A v. Director of Public Prosecutions and H v. Director of Public Prosecutions in [1997] Crim.L.R. 126-127 and 129.
[17] Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 C.L.R. 337 at [7], where it is stated that the question is "one of possibility (real and not remote), not probability".
[18] Compare the point made in R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866, a case of communication with a juror.
[19] Her Honour referred to s 31 but doubtless she meant s 27 (transcript p. 363)
[20] Black v R [1993] HCA 71; (1993) 179 C.L.R. 44.
[21] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 441 per Toohey, Gaudron, Gummow and Kirby JJ.
[22] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 47 and 53 per Mason C.J. and McHugh J., at 57 per Brennan J (as then he was), at 68-69 and 71 per Deane J., and at 87-88 per Toohey J; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 C.L.R. 288 at 293-294 per curiam; and Rozenes v His Honour Judge Kelly [1996] VicRp 20; [1996] 1 V.R. 320 at 329 per curiam.
[23] Deriving from R v Rowton [1865] EngR 53; (1865) Le & Ca 520 at 530[1865] EngR 53; , (1865) 169 E.R. 1497 at 1502 per Cockburn C.J.
[24] Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 and Simic v R [1980] HCA 25; (1980) 144 CLR 319.
[25] As in M v R [1994] HCA 63; (1994) 181 C.L.R. 487.
[26] See MFA v The Queen (2002) 77 A.L.J.R. 139 at [35] per Gleeson C.J., and Hayne and Callinan JJ and at [89] per McHugh, Gummow and Kirby JJ.
[29] A.W.G. Kean, "The History of the Criminal Liability of Children" (1937) 53 Law Quarterly Review 364.
[32] 12 Lib. Ass. f. 37 pl. 30; Y.B. 12 Edw. III 626 (R.S.). The Latin means: malice supplements age.
[35] [1994] 3 W.L.R. 888; also reported in [1996] 1 A.C. at 4.
[36] [1995] UKHL 15; [1996] A.C. 1 at 40.
[37] [1996] A.C. 4 at 9, 11 and 13 respectively.
[42] [1995] UKHL 15; [1996] A.C. 1 at 26 per Lord Lowry.
[43] G. L. Williams, "The Criminal Responsibility of Children" 1954 Criminal Law Review 493.
[44] Thus Professor Williams ibid at 495: " ... at the present day the 'knowledge of wrong' test stands in the way not of punishment, but of educational treatment."
[45] R. v. M.(1977) SASR 598; R (a child) v. Whitty (1993) 66 A. Crim. R. 462.
[46] See Crimes (Rape) Act 1991, s.9(1) discussed below.
R
ALH [2003] VSCA 129
Criminal Law - Sexual offences - Eight count presentment - Applicant convicted on seven counts - Earlier trial with different complainant at which applicant acquitted - Alleged attempt by that complainant to influence jury - Whether miscarriage of justice - Applicant convicted on seven counts and acquitted on one - Whether convictions inconsistent with acquittal - Judge's directions regarding consent and inferences - Four counts relating to offences when applicant was under 14 - Requirements of doli capax rule - Whether acts constituting the offences and applicant's age may be sufficient on their own to discharge onus - C v. Director of Public Prosecutions [1995] UKHL 15; [1996] A.C. 1 not followed - Whether judgments and verdicts of acquittal or new trial should be directed - Crimes Act 1958, s.568(2).
(1996) 186 CLR 427
(1994) 181 CLR 41
(1999) 198 CLR 1
(1980) 144 CLR 319
Leave to appeal was granted. The convictions and sentences on counts 1, 2, 5 and 6 were set aside and a new trial was directed on those counts. The convictions on counts 3, 4 and 7 were affirmed, as were the sentences on those counts. The resulting effective sentence was 19 months, wholly suspended for three years. Callaway J.A. would instead have quashed all convictions and directed a new trial on counts 1 to 7.