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[2006] VSCA 247
Court of Appeal (Vic)
2006-11-21
VINCENT and NETTLE, JJ.A. and KING, A.J.A.
Original judgment source is linked above.
Criminal law - Conviction - Wilfully committing an indecent act with or in the presence of a child under 16 - Taking part in an act of sexual penetration with a child under the age of 16 - Victims related to applicant - Two separate trials - Sufficiency of propensity warning - Miscarriage of justice - Whether Palmer direction required - Whether Longman warning insufficient - Unsafe and unsatisfactory - Adequacy of directions in respect of identification evidence - Whether sufficient direction given in respect of cross-admissibility of evidence - Whether trial judge erred in her directions as to complaint - Applications dismissed.
Criminal law - Sentence - Whether sentencing judge erred in finding as aggravating the offence that the applicant had applied for a separate trial - Whether the sentencing judge afforded sufficient weight to the length of time since the offending and the rehabilitation during that time - Whether orders for cumulation reflected the criminality of each episode of offending - Manifest excess - Whether sentencing judge erred by failing to give effect to the verdict of the jury acquitting the applicant of the threat to kill - Applications dismissed.
1 On 22 February 2005, the applicant was found guilty by a jury on 13 counts of wilfully committing an indecent act with or in the presence of a child under the age of 16[1] and five counts of taking part in an act of sexual penetration with a child under the age of 16[2] (the first trial - Presentment No. S00563438.1).
2 Six days later, he was found guilty on one count of wilfully committing an indecent act with or in the presence of a child under the age of 16[3] (the second trial - Presentment No. S00563438.2). [4]
3 The applicant had no prior convictions.
4 After hearing a plea in mitigation of penalty, the judge, on 4 March 2005, imposed the following sentences:
On Presentment No. S00563438.1
On each of counts 1, 2, 8,
14, 15, 16 and 17 - six months' imprisonment;
On each of counts 3, 5, 6,
11 and 19 - four years' imprisonment;
On each of counts 4, 7, 10,
12, 13 and20 - eight months' imprisonment.
On Presentment No. S00563438.2
On count 2 - four months' imprisonment.
5 Her Honour directed that, with respect to Presentment No. S00563438.1, two months of the sentences imposed on each of counts 7, 13 and 20 and two years of each of the sentences imposed on counts 11 and 19 be served cumulatively upon that imposed on count 3 and upon each other. This created an effective sentence of eight years and six months' imprisonment.
6 It was further directed that one month of the sentence imposed on count 2 on Presentment No. S00563438.2, be served cumulatively upon the effective term imposed for the offences encompassed by Presentment No. S00563438.1.
7 These orders created a total sentence of eight years and seven months' imprisonment in respect of which a non-parole period of five years and nine months was fixed.[5]
8 The applicant now seeks leave to appeal against convictions and the sentences imposed upon him.
The Applications for Leave to Appeal Against Conviction
The Grounds - First Trial
9 The application with respect to the convictions and sentences contained in Presentment No S00563438.1 is based upon the grounds set out in the applicant's Full Statement of Grounds that:
1. The learned trial judge erred in
(a) admitting evidence of complaint,
(b) her directions as to complaint.
2. A miscarriage of justice was occasioned by the failure of the learned trial judge to give a propensity direction or sufficient directions on propensity.
3. The learned trial judge erred in failing to direct as to how the evidence of one count was admissible in the proof of other charges or give sufficient directions on cross-admissibility.
4. A miscarriage of justice was occasioned by the failure of the learned trial judge to give a Palmer direction or any direction with respect to motive.
5. A miscarriage of justice was occasioned by the insufficiency of the Longman direction.[6]
The Grounds - Second Trial
10 The application with respect to the conviction and sentence imposed on count 2 in Presentment No. S00563438.2 is based upon the grounds set out in the applicant's Full Statement of Grounds that:
1. A miscarriage of justice was occasioned by the failure of the learned trial judge to give a Palmer direction or any direction with respect to motive.
2. A miscarriage of justice was occasioned by the insufficiency of the Longman direction.
3. A miscarriage of justice was occasioned by the learned trial judge inadequately directing upon identification.
...
5. The learned trial judge erred in failing to direct as to how the evidence of one count was admissible in the proof of other charges or give insufficient directions on cross-admissibility.
6. A miscarriage of justice was occasioned by the failure of the learned trial judge to give a propensity direction or sufficient directions on propensity.
7. The conviction was unsafe and unsatisfactory.[7]
The Background
11 The complainants, who will be referred to as, L, P and V, are brothers and the sons of the applicant's cousin, G.
The First Trial
12 Eight of the counts of indecent acts and four of the counts of sexual penetration on which the applicant was convicted relate to his alleged offending against L, who was born on 13 June 1979. The prosecution contended that the relevant conduct took place between 1 January 1992 and 31 December 1994 when L was aged between 12 and a half years and 15 and a half years. At that time, the applicant was aged between 25 and 27 years, having been born on 8 January 1967.
13 The offences were claimed to have been committed in the course of two discrete episodes, separated by a matter of weeks. The first group, it was asserted, were perpetrated at the applicant's home in Dandenong, on an occasion on which it had been arranged with L's parents that the young boy would stay overnight.
14 According to L, the applicant asked him whether he would like to sleep in the same room with him. L thought that this was a "cool" suggestion as the applicant had a waterbed and therefore agreed. However, as he started to go to sleep, the applicant began rubbing his arm and back and then his anus. Moving his hand around towards L's front, he commenced touching the boy's penis on top of his boxer shorts and then to masturbate him (count 1). The applicant assured L that this conduct was "normal" and said that he need not be shy. He turned the boy over so that he was lying flat on the bed and then took L's hand and placed it on his (the applicant's) penis, directing L to masturbate him (count 2). Following this, the applicant pulled down L's boxer shorts and placed the boy's penis in his mouth. The applicant then recommenced masturbating him (count 3). After a while, the applicant removed his own boxer shorts, knelt on the bed and pulled L into a kneeling position. The applicant again masturbated L and then directed the boy to masturbate him. The applicant then rubbed L's penis with his own (count 4), after which he inserted his penis into L's mouth for "a little while" (count 5). The applicant again inserted L's penis in his mouth (count 6). The applicant then masturbated L until he ejaculated (count 7). He then directed L to masturbate him until he also ejaculated (count 8). He told L "this is our secret, don't tell anyone".
15 The second episode of offending occurred, it was claimed, a week or two later in L's bedroom at his home in Noble Park.
16 L stated that, on this occasion, the applicant was present in the house on an evening during the week when L's mother was at work. The boy's father was sleeping in the lounge room and his two brothers were elsewhere in the premises. The applicant told L that he was in a hurry as he had to go out and requested the boy to come to his (L's) bedroom with him. Once in the room, the applicant closed the door and proceeded to masturbate him. He then placed L's hand on to his (the applicant's) penis and directed the boy to do likewise (count 10). Following this, the applicant sat on L's bed, and while the boy was standing facing him, put L's penis in his mouth and engaged in oral sex (count 11). The applicant then masturbated L until he ejaculated (count 12). The applicant continued to masturbate himself until he also ejaculated (count 13). The applicant then said that he had to go, and left the house.
17 The other counts on which the applicant was convicted on the first trial relate to P, the younger brother of L, and who was born on 10 December 1981. The offending was said to have occurred between 10 December 1992 and 31 December 1993, when P was aged 11 to 13 years, at the applicant's Dandenong home.
18 According to P, the applicant had asked whether the boy could go with him back to his house. P's mother agreed and the applicant drove him there. P was standing just outside the kitchen area in the lounge when the applicant came over to him and started to masturbate the child inside P's pants (count 14). The applicant then directed P to do the same to him (count 15). The applicant took P to his bedroom. Once there, he removed P's clothes as well as his own and, when both were on the waterbed, commenced to touch P's penis (count 16). The applicant then directed P to masturbate him (count 17). P was lying on the bed and the applicant gave him oral sex (count 19). Whilst performing this act on P the applicant masturbated to the point of ejaculation (count 20).
The Second Trial
19 The count on the second presentment, on which the applicant was convicted related to the youngest of the three brothers, V, who was born on 4 April 1984.
20 V gave evidence that the conduct took place on an evening on which the applicant was present at V's home. V, who was aged between seven and nine years, had had a bath and was naked in front of the heater in the lounge room while his mother was busy in the kitchen. The applicant offered to dry his hair. He then sat behind the boy in a lounge chair while V was sitting on the floor between his legs. While drying his hair, the applicant leaned over and started playing with the child's testicles. He then moved his hand to V's penis and started masturbating him for some 10 to 15 minutes before V said "stop". V then stood up, walked off and put on his pyjamas.
The Grounds of Application for Leave to Appeal Against the Convictions Entered at the First Trial (Presentment No. S00563438.1)
Ground 1
21 There were two propositions advanced under this ground.
22 Evidence was led by the prosecution of a complaint made by L to a school friend, DP, after the second alleged episode of offending. It was contended that there was no evidence as to the proximity of this complaint to the events in question and none as to what may have happened in the meantime. In those circumstances it was not possible, the argument proceeded, for the inference to be drawn that the complaint was made at the first reasonable opportunity and, accordingly, the evidence should not have been put before the jury.[8]
23 In a police statement made on 27 April 2003, L claimed that the first person he informed about what had happened was his "best friend", DP, in a conversation that took place a "few weeks" after the second episode -
"... I didn't tell him in detail what happen (sic) but I told him that [the applicant] touched me and that he made me touch him. When I told him, we were at school."[9]
"When I was at school with L he told me what happened, but he didn't want to go into too much detail. He told me about the touching and all that, and he told me about telling his family and they didn't want to believe him and that. (my emphasis) He said the guy that touched him was in the family. He did say who his name was, but I can't remember. He told me this when I was in Year 9 or something, maybe even Year 8. It was something that I hadn't experienced and didn't know what to say. What do you say to someone who is telling you all that? He said that something, I can't remember a hundred per cent, but it was something to do with his arse and being touched there. I don't remember where he said that it happened. When he told me about what happened, he said that it had happened to him more than once, but I can't remember how many times. It was more of an ongoing thing. When he told me, we were outside and in between two classrooms at school, where nobody could see us. Sometimes we would go there just to hang out, but this time he told me all this stuff. When he did, he was a bit jitterish in his hands. He was a bit teary in the eyes, he wasn't crying or nothing, he seemed like he was holding it back and he didn't want to cry in front of me. He seemed like he was a bit reluctant to tell me and he didn't seem like himself. I told him it was all right to tell me, I wasn't going to tell to anyone, but I wasn't pushing him to talk about it if he didn't want to."[10]
There was, it was asserted, a significant difference between the two versions, in that according to DP, the complainant had indicated that he had made an earlier complaint, the nature of which and when it was made were unknown.
24 It is evident from the trial transcript and the judge's ruling, part of which is set out below, that the arguments advanced in the court below concerning the asserted inadmissibility of this evidence were essentially the same as those that have been presented before us.
"[Counsel], on behalf of the accused, objects to the admissibility of the evidence of the complaint to [DP]. He says that it could not be construed as a recent complaint. He submits that the reference by [DP] to 'something to do with his arse and being touched there' could only be a reference to the first episode of offending. According to the complainant, there had been a period of two weeks elapse between it and the second episode of offending, and then it is not until 'a few weeks later' that the complainant says he told [DP]. [Counsel] submits that the time frame is too vague to be recent. Moreover, it is not a first complaint, since [DP] refers to the complainant having told his family and they didn't want to believe him.
Further, [counsel] says that it is clear from the depositional material that the complainant had ample opportunity to tell his mother and a school counsellor, whom he was apparently seeing in 1993 and 1994 for his angry behaviour. [Counsel] urges that the court should take into account that the complainant was not of particularly tender years, but may have been as old as 15 and a half years given the time frame alleged in the presentment. He submits, in all of the circumstances, the evidence in issue cannot be said to be a recent complaint made at the first opportunity and cannot buttress the complainant's credit by demonstrating consistency."[11]
25 There can be no doubt that, as the following extract demonstrates, each of these arguments and considerations was carefully addressed and I note that specific reference was made by her Honour to the applicable principles of law as set out in the authorities.
"In The Queen v. Freeman and Others ..., the court made it clear that the question of first reasonable opportunity had to be weighed against all the surrounding circumstances bearing in mind the subjective situation of the complainant. It is apparent from other depositional material, particularly that of the complainant's mother, that the complainant's family was in some turmoil at about the time of the alleged offending, with Community Service involved because of the behaviour of the complainant's brother, [P], who is also a complainant the subject of other counts of this presentment. It appears from the statement of [the] school counsellor during 1993 and 1994, that she had ongoing contact relating to anger and behavioural problems with [L] and his brother [P]. It is also apparent from the statement of the complainants' father that he was having problems of his own unspecified. He states that the marriage to the complainants' mother ended in 1995 and the breakdown was 'from domestic problems and it also involved alcohol'.
It is clear from the complainant's own statement that, regardless of whether he was 12 or 15 years of age when the first episode of offending is alleged to have occurred, he was shocked and confused after it. He had also been allegedly threatened by the accused that he would be killed if he told anyone. This factor, taken in conjunction with his dysfunctional family situation, is, in my mind, relevant to whether this complaint to [DP] could be said to be the first reasonable opportunity, particularly in the context of the alleged offender being his own mother's cousin.
The situation as to whether the complainant did or did not complain to his mother prior in time to [DP] is unclear from the other depositional material. In any event, the authorities suggest that there can be more than one recent complaint.
Although the complainant's statement that he told [DP] 'a few weeks later after the last time it happened' is not very specific, it would appear to be a complaint made within a period of weeks rather than months or years. As Eames, J.A. stated in The Queen v. GG ... 'There is no set rule as to when delay is too long to enable a complaint to be deemed "recent".'
In the circumstances of this particular case involving the accused before me, I regard the complaint as presently detailed in the statement of [DP] as a 'recent' one in relation to all of the offending alleged. It is clear from [DP's] statement that the complaint was not confined to one episode of 'something to do with his arse and being touched there.' [DP] also refers to 'the touching and all that', and states that the complainant had said that 'it had happened to him more than once, but I can't remember how many times. It was more of an ongoing thing'.
In The Queen v. GG, Eames, J.A., in referring to the trial judge's reasoning in that case, acknowledged ... that, 'The fact that an earlier opportunity might have arisen was not conclusive of the question whether the timing of this complaint when made was the first reasonable opportunity.'
Having regard to the complainant's subjective situation at the time of the alleged commission of the offences, both domestically and his own described emotional turmoil after the alleged offending, compounded by the threat alleged to be made to him by the accused, I find that the complaint to [DP] is one made at the first reasonable opportunity."[12]
26 Her Honour indicated that she was also influenced in arriving at this conclusion by what she perceived as the spontaneity of the complaint to L's "best friend" at school, expressing the opinion that it was "the sort of confidence that one might expect of an adolescent boy who [was] confused" and made to a person who was neither in a position of authority in his life or who asked probing questions.
27 As I have mentioned, the trial judge approached the question of the admissibility of this evidence with appropriate care. She was conscious of the factual circumstances and principles of law to which regard was required in dealing with the matter and I am far from persuaded that she may have fallen into error. There is certainly nothing in her ruling that could support this suggestion. The findings of fact upon which it rested were open on the material, the relevant principles were taken into account and the conclusion at which she arrived does not itself bespeak error.
28 The second complaint made under this ground - that the trial judge failed to provide the balancing comment required to avoid the "sterilizing" of the complaint from criticism and thereby her instruction to the jury lacked balance - is also without merit. It was based upon passages in R. v. MWL[13] and Crofts v. R.[14] which addressed the effect of s.61 of the Crimes Act 1958 (Vic) and were principally concerned with the quite different situation which arises when there has been a significant delay in the making of a complaint. As the Court made clear in Crofts -
"... the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial."[15]
The issue of delay in the making of the initial complaint did not arise in the present case and no further instruction was required on that basis. The directions given by her Honour were expressed in a conventional form, were appropriate and adequate in the circumstances and there was nothing in them that could be seen to have "sterilised" the evidence from critical comment. The jury were properly directed with respect to the onus and standard of proof and the various facts and considerations advanced on behalf of the defence were drawn to their attention. There was nothing that could reasonably give rise to concern that they may have engaged in some form of impermissible reasoning or failed to have regard to some consideration, the significance of which may not have been apparent to them. No complaint was made by counsel at the trial with respect to the adequacy of the instructions and no further directions were sought or required.
29 This ground accordingly fails.
Grounds 2 and 3
30 Those grounds were argued together. In the course of delivering his final address to the jury, counsel for the applicant referred to the claims by the three complainants as being "uncannily similar" and suggested that there was at least the possibility of contamination of the evidence, if not deliberate collusion between them. The situation called for, it was submitted, the provision of a strong direction by the trial judge, pointing out to the jury the presence of these possibilities and cautioning them with respect to the risks of injustice inherent in this situation.
31 This complaint also lacks merit in my view. Neither in the court below nor before us was it argued that any of the counts on the presentment should have been severed. The jury were instructed that they had to give separate consideration to each count and that it would be wrong of them, if they found the applicant guilty or not guilty of one offence against a particular complainant, to reason that he must therefore be guilty or not guilty on any of the other counts relating to that complainant. They were also instructed that a finding of guilty of the commission of an offence against one complainant would not permit them to reason, via propensity, to his guilt of an offence against the other. No exception was taken at the trial to these instructions. They were simply expressed and sufficiently clear to enable the conclusion to be reached that, as a realistic possibility, the contention that the jury may have engaged in impermissible reasoning based upon their perception of the propensity of the applicant to commit sexual offences, or the use of the evidence of one complaint to support that of another, can be discounted.
32 Prior to the final address of the counsel then appearing for the applicant, and at the conclusion of the prosecutor's address which contained no suggestion to that effect, the trial judge raised the issue of the possible cross admissibility of the evidence of the separate complainants. After discussion, the following exchange took place:
"HER HONOUR: I will give a separate consideration direction and tell them they must not engage in any impermissible line of reasoning. That if they find the accused has committed one offence, or even offended in the entirety against one of the complainants they are not to reason that he therefore is the type of person who would have done it against the other.
PROSECUTION: That's correct, your Honour.
HER HONOUR: Is that what you seek?
PROSECUTION: Yes.
HER HONOUR: [Defence counsel], you didn't want to say anything about that?
DEFENCE COUNSEL: No, your Honour.
HER HONOUR: That's the way you'd envisaged it being put?
DEFENCE COUNSEL: Yes, your Honour.[16]
33 As I have already pointed out, the judge instructed the jury that they must separately consider each count. Her Honour directed their attention to the evidence called in support of each and warned them against the employment of propensity reasoning when considering the separate counts and the separate complainants. No exception was taken to those directions which were, on the aspect of cross-admissibility unduly favourable to the applicant in my view.
34 These grounds must fail.
Ground 4
35 The complaint made under this ground was that the trial judge should have given a direction to the jury of the kind considered by the High Court in Palmer v. R.,[17] where it was said -
"A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred... . But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie... . [18]
...
...[A] complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished."[19]
36 The argument was based on three passages in the transcript. The first records part of the cross-examination of P and reads:-
"What I suggest to you is that you have made that up, made these allegations up; OK --- No, I haven't made them up.
What I was asking you was in fact the reason you have made them up is - can I ask you whether it was because of the rivalry in your family and you felt that particularly V, or even L, were getting more attention than you? --- No
Because that was clearly your view, wasn't it? --- No, it wasn't my view."[20]
37 This suggestion was repeated in submissions in defence counsel's final address in the passage -
"You've got young P who clearly was a bit of a ratbag as a kid. He might be able to come up now and unfortunately again the defence have no opportunity of talking to this little ratbag of a kid. You've now got a bloke who's grown up and whatever it is ten years later. He's now a manager at - - -. Far more able to remember whatever story he may well believe is true, but we all know, ladies and gentlemen, you all know that people who want attention just sometimes make up a slight porky. Once you say it of course you're stuck with it. Couldn't that have happened here?
And then the ultimate return, the way that L apparently told his mother - was, I was abusing - and I'm really paraphrasing, but I was abusing L and he turned around and said, why do you always take P's side? [The applicant] touched me too. Isn't that a - I want a bit of that, I'm being treated unfairly?"[21]
38 The third appears in the prosecutor's final address:
"So in conclusion I suggest that there is sufficient evidence for you to find the accused guilty on all of the counts. It's really your job here to determine who's telling the truth, and you hear L and you heard P and they told you what happened back then. Did it sound like it was made up to you? Or did it have that ring of truth to it? That sort of ring of truth that you get because it actually happened."[22]
39 The argument was advanced in this Court that the question posed by the prosecutor carried the implication that neither of the complainants possessed any motive to lie, and that therefore not only could the evidence given by both be relied upon with confidence, but, indirectly, that, if the evidence was not to be accepted as reliable, it was incumbent upon the applicant to establish the existence of some such motive. This view of the jury would have been reinforced, it was claimed, by the later submissions of defence counsel that the motivation for making "false" allegations by L, in particular, was a desire to attract the level of attention that he regarded as his due.
40 For this argument to succeed, either the initial premise that the question posed by the prosecutor, reasonably understood, carried implications of the kind asserted has to be accepted, or the fact that the issue was raised by defence counsel necessitated the provision by the judge of a specific instruction.
41 As the passage makes apparent, the prosecutor did nothing more than invite the jury to consider whether the claims of the complainants had what he described as a "ring of truth" about them or whether they sounded as if they were fabricated. Clearly, no question of motivation was raised directly and there is nothing to support the contention that this invitation would have been perceived by the jury as implicitly suggesting that the applicant was required to advance a motive for the fabrication by the respective complainants of the allegations made against him. Although the theoretical possibility that the posing of the question: "Did it sound like it was made up to you", could raise the issue of motive in the minds of some people cannot be excluded, as I have remarked it is apparent that the prosecutor was directing attention to what he asserted was the high degree of probability that the evidence was true as it possessed the "ring of truth that you get because [the event] actually happened." Even assuming that some members of the jury regarded the prosecution's invitation to view the evidence as suggesting more than that they should have regard to the inherent plausibility of the evidence itself, considered in the light of all of the surrounding circumstances and speculate as to whether the respective complainants may have possessed motives to lie, the prospect that they would then have reasoned that it was incumbent upon the applicant to establish the presence of some motive, is, in my view, remote. In any event, as I have earlier pointed out, the jury was properly instructed with regard to the burden and standard of proof and there is no reason to suppose that those instructions were not followed.
42 With regard to the suggestion that as the matter was raised by defence counsel some further instruction was required, the only references made in the trial to the possibility or significance of the presence of some motive to lie were those of the applicant's counsel for his own forensic purposes. The explanation proffered by him, that is, having made an allegation as a young boy in order to gain attention he felt constrained to repeat it on oath years later as an adult, was hardly likely to have found favour with any reasonable juror and it is difficult to see how, if it was the subject of instructions by the trial judge in the fashion urged in this Court, that this could have operated other than to the detriment of the applicant. The situation was not one in which there was reference made or implied to the absence of motive for the making of a false complaint but one in which a specific motive for lying was attributed to the complainant. If instructions were provided, presumably the judge would have said something to the effect that, if the jury rejected the defence contention that the complainant concerned was lying for the reason proffered, they would be in a situation in which there was simply an absence of a motive to lie and to then instruct them that the defence was under no obligation to advance any such motive. This would have highlighted the obvious unlikelihood of the explanation, and almost certainly enhanced the credibility of the complainant's evidence in the mind's of the jury. And it must be borne in mind that the instructions would have been given in a trial in which there were no suggestions express or implied that the applicant may have had to prove anything or advance any motive, as defence counsel himself pointed out in one of the passages upon which reliance has been placed. Unsurprisingly, no exception was taken to the judge's change on this aspect.
43 This complaint fails.
44 The argument advanced in support of this ground was that the Longman[23] warning given to the jury was "weak" and the "examples of prejudice were poor and watered down".
45 The High Court in Longman v. R. considered the situation confronted by an accused where the alleged offending conduct was said to have been engaged in many years earlier. Brennan, Dawson and Toohey, JJ. in a joint judgment pointed to a number of significant circumstances relating to the particular case which were the appropriate subjects of balanced comment by the trial judge and continued -
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer... . That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.) ...) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."[24]
46 That direction to trial judges has been followed in a vast number of cases since Longman was decided. Obviously the instruction to be given to the jury must be tailored to the circumstances of the individual cases and it is clear that no specific formulation of it need be employed.
47 It is apparent upon perusal of the trial judge's charge that this complaint is entirely devoid of merit. Her Honour who was clearly conscious of her obligations in this regard, drew the attention of the jury to each of the relevant ways in which the applicant could possibly have been prejudiced through the effluxion of time and then instructed them.
"The warning is: As the evidence of the complainants cannot be adequately tested after the passage of so many years, it would be unsafe to convict on that evidence alone unless, having scrutinised all of the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, you are satisfied of its truth and accuracy.
In this case, as is often the case in complaints of a sexual nature where there are no witnesses, there is no other evidence from an independent person which corroborates or supports what L or P say what happened. There is no evidence in that sense of an independent person to make it more probable that what they say is correct. So you must scrutinise carefully the evidence of L and P taking into account the warning that I have given you."[25]
48 The instructions were appropriate and adequate. They were directed to the particular circumstances and again no exception was taken by counsel at the trial.
49 In summary, there being no substance in any of the grounds upon which reliance has been placed and there being no reason why the convictions, which were clearly supported by the evidence, should otherwise be regarded as unsafe or unsatisfactory, this application for leave to appeal against conviction should, in my opinion, be dismissed.
The Grounds of Application for Leave to Appeal Against the Conviction entered at the Second Trial (Presentment No. S00563438.2)
Ground 1
50 There is no merit in the complaint made under this ground that the trial judge was required to give the jury directions with respect to motive.
51 It is based upon a statement made by the prosecution in the course of his final address with respect to the complainant's evidence that "[the offending conduct] is way too serious to be the type of thing the brain just starts to manufacture for you".
52 In this Court, counsel for the Crown has submitted, and almost certainly correctly, that the remark was made in anticipation of an argument foreshadowed by counsel then appearing for the applicant at the outset of the trial, when responding to the prosecutor's opening. At that stage, counsel invited the jury to consider the possibility that, whilst the complainant may well have believed that he had been molested by the accused, no such conduct had in fact taken place, submitting -
"Each of you know and each of have experiences relating to human life and you know how the human mind works, and you know very well that kids sometimes have problems in remembering things over years - indeed not just kids, each of us have problems over years, the mind changes, the mind does funny things. And it's so important that you use your own experience and your own knowledge of life to appreciate those factors and use so much of your common sense, because it's not a matter of whose evidence you prefer, it's a matter of the Crown having to prove the matter beyond reasonable doubt.
Quite simply put, if these incidents did not happen and at some stage after it's alleged they occurred, well, [V] has a view that they did occur. And you must remember, ladies and gentlemen, and it's something that again you'll all be aware of, but you can effectively - your mind does funny things and people who have come to a view of some kind, their mind can change so that factors around that change, so they very firmly believe something happened. And what you may be hearing from [V], he may firmly believe that what he says is true, but it doesn't necessarily mean that it is an accurate report."[26]
53 Reasonably understood, the prosecutor invited the jury through the impugned comment to reject the possibility that V may, as a consequence of a variety of factors that could operate upon the mind of a person with respect to occurrences that took place long ago and when he was very young, have been honestly mistaken about what had taken place. There is no suggestion whatever that attention was being directed to the absence of a motive to fabricate allegations against the accused before the court nor any basis upon which the concerns underlying the requirement for a Palmer direction could be seen to arise. No exception was taken by counsel at the trial on this basis.
Ground 2
54 The complaints made with respect to the instructions given by the trial judge concerning the effect of the substantial period of time that had elapsed between the alleged offending and the conduct of the trial were essentially the same as those made in relation to similar instructions given in the first trial and equally without substance as the following extracts demonstrate:
"I want to say something else to you which is a warning. It is something to which I want you to listen very carefully and to which you must pay heed when you are assessing the evidence in this case. These two offences are alleged to have occurred between 1 January 1992 and 31 December 1993. [V] was aged seven to nine between these dates, he is now 20 years old. It was not until June 2003, when the accused was first contacted by the police and interviewed, that the accused was first made aware of the allegations. The experience of courts in dealing with cases where there has been a substantial delay like this is what causes me to give you this warning that I am about to give you.
You must bear in mind that the delay has deprived the accused of the means of testing the complainant's allegations which would have been open to him, had there been no delay in the prosecution. Had the complainant's allegations been made soon after the alleged offences, it would have been possible to explore in detail the alleged circumstances and perhaps it would have been open to the accused to call evidence throwing doubt upon the complainant's story or confirming his denial.
A complainant earlier in time, particularly if he had identified the precise date, may - I do not say necessarily would - have allowed the accused to call evidence which might have assisted him in his defence and thrown doubt on the evidence of the complainant. After so many years these opportunities have been lost or compromised.
The other thing about delay is that it affects the memories of all concerned. You have to take into account that the complainant, [V], now has an adult's recollection of a childhood memory. His evidence cannot be adequately tested after that time. Contemporaneous questioning of a child may, for example, distinguish fantasy from reality. Experience has shown that human recollection, particularly of childhood events, may be erroneous or distorted and that the likelihood of error can increase with delay.
So the warning is: As the evidence of the complainant, [V], cannot be adequately tested after the passage of so many years, it would be unsafe to convict on the evidence alone unless, having scrutinised all of the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, you are satisfied of its truth and accuracy.
...
... In this case, as is often the case in complaints of a sexual nature where there are no witnesses, there is no evidence which corroborates that of the complainant from an independent source. In other words, there is no evidence which confirms or supports or strengthens what [V] said actually happened in relation to the two allegations, so you must scrutinise carefully the evidence of [V], taking into account the warning I have given you.
If, after careful scrutiny, you are satisfied that his evidence is truthful and accurate, then you are entitled to act upon that evidence alone and then to convict."[27]
They were appropriate and adequate in the circumstances. Again, no complaint was made and none would have been justified. This ground must fail.
Ground 3
55 The complainant stated in evidence, with respect to count 1, that his family had stayed overnight at the applicant's home after a party. He was sleeping with his brothers, the applicant and another person in the applicant's waterbed, when he was touched and masturbated by an adult from behind. He said that he was scared and did not look around, however, he was confident that it was the applicant who molested him.
56 Although, as is apparent from this outline, it was not a case of personal identification at all, the trial judge instructed the jury in the manner indicated as required in such cases by the High Court in Domican.[28] In this Court, the contention has been advanced that her instructions were inadequate. Although a question could be seen to arise with respect to the correctness of the judge's approach to a situation in which the questions relating to the drawing of an inference of identity appear to have been confused with those arising from evidence of personal identification, ultimately the matter assumed no significance as the applicant was acquitted on that count.
57 Similarly no issue of identification arose in relation to count 2. According to V he was sitting immediately in front of the applicant who was drying his hair. There is no suggestion of the presence of anyone else in the vicinity and he was clearly able to say who touched him. Once again, no exception was taken to the judge's direction at the trial.
58 This ground fails.
Grounds 5 and 6
59 These grounds can be considered together. The trial judge gave clear directions to the jury to give separate consideration to each count and the evidence led in proof of it. There was no suggestion at any stage that the evidence led in support of count 1 was admissible in proof of count 2 and the jury acquitted on count 1 in any event. There was no exception taken to her Honour's directions on this aspect. There was clearly sufficient evidence to support the jury verdict which could not reasonably be regarded as unsafe and unsatisfactory in the circumstances.[29]
60 These grounds must fail.
61 Accordingly, this application also fails in my opinion.
The Applications for Leave to Appeal Against Sentence
62 The Full Statement of Grounds of the applications for leave to appeal against sentence are in identical terms and read:
1. The learned trial judge erred in finding as aggravating the offence that the applicant had applied for a separate trial.
...
3. The learned trial judge erred in failing to find that the offending was short lived.
4. The learned trial judge erred in failing to give any, or any sufficient weight, to length of the period of time since the offending and the rehabilitation during that time.
5. The learned trial judge erred in associating a failure to plead guilty with no rehabilitation having taken place.
6. The learned trial judge erred in failing to properly exercise her discretion of the cumulation of the individual sentences to reflect the criminality of each episode of offending.
7. The learned trial judge erred in imposing the individual sentences and in their cumulation imposed a sentence that was manifestly excessive.
8. The learned trial judge erred by failing to give effect to the verdict of the jury acquitting the applicant of threatening to kill L in sentencing.[30]
Ground 1
63 The argument was advanced that the judge treated as aggravating the offence, the applicant's successful application for a separate trial of the counts relating to V. When regard is had however to the context in which reference was made to this aspect in her Honour's sentencing remarks, it is apparent that she was directing attention to the total absence of any indication of the applicant's remorse for his engagement in conduct that she described as "self indulgent and abhorrent" in circumstances where that conduct had produced long lasting and clearly observable effects upon all three victims and the family unit. There is no good reason to interpret her Honour's remarks as suggesting that she had fallen into error by regarding the course adopted by the applicant as an aggravating feature rather than viewing it, as she clearly was entitled to do, as additional evidence of the absence of remorse.
Grounds 2, 3 and 4
64 These grounds are based upon the following passages in her Honour's sentencing remarks:
"[Counsel] submitted that this fact, together with the evidence that you had not offended and have been of impeccable character, entitles the court to infer that your offending was short lived and that you have reformed. I do not believe that there is sufficient factual basis for me to make such an inference, albeit that it is important that I take into account that there is no subsequent offending alleged against you.[31]
...
[E]ffective rehabilitation involves an acknowledgement of one's wrongdoing, insight into the reasons for one's offending and a determination to address those issues. None of these features is apparent in your case, given your pleas of not guilty and your twice swearing on oath that you did not commit the offences."[32]
There can be no doubt that the judge was well aware of the period involved in the offending and she adverted specifically to both "the lack of prior convictions and the lack of subsequent offending". However, and in my opinion quite understandably, she possessed serious reservations concerning the extent to which the applicant could be regarded as rehabilitated. She concluded:
"The sentence cannot be tempered in the way that it might have been had there been only an isolated incident of offending, or had the offending been the subject of remorse and insight."[33]
65 It is apparent that her Honour was unpersuaded by the evidence and submissions before her that the mitigating factors of genuine remorse or successful rehabilitation were present and that, accordingly, the applicant could not receive the benefit of the presence of those mitigatory features. That view of the factual position was clearly open to her and this Court would not be justified in intervening on the basis that she was required perforce of the evidence before her or the application of some principle of law to make a finding on either of those aspects.
Ground 8
66 The applicant was acquitted at the first trial on one count of making a threat to kill L. There was evidence given by L that the applicant said to him:
"This is our secret. Don't tell anyone, I'll kill you."
"I am satisfied beyond reasonable doubt on the evidence which I heard in the trial that you told L 'this is out secret, don't tell anyone' although the jury acquitted you of count 9, which was making a threat to kill."[34]
67 Counsel for the applicant in this Court contended that the "only conclusion" that could be reached from the inclusion of this reference was that her Honour was satisfied beyond reasonable doubt, and contrary to the jury verdict, of the making of a threat to kill. There is, of course, no inherent inconsistency between an acceptance of the evidence that the applicant instructed L not to tell anyone about what had happened and his acquittal on the count of making a threat to kill. The finding made by her Honour was open in the circumstances and I do not accept that the implications for which counsel for the applicant has contended, can be seen to be present.
Grounds 6 and 7
68 These grounds relate to the length of the individual sentences, the orders for cumulation and the total effective sentence which was imposed and, in substance, raise the contention of manifest excess.
69 As the sentencing judge stated when addressing the applicant -
"[T]he conduct of which the jury has found you guilty against all three children of the one family is of the utmost seriousness. As I have said, it involves a grave breach of trust towards children who were already in a vulnerable family situation and who apparently looked up to you as a caring older relative. Part of your offending occurred in [their] home with other family members not far away. It was brazen conduct which violated the feeling of safety which a child should have in his own home. As I have already said, other parts of your offending conduct as found by the jury show an appalling breach of trust because they occurred when [the] boys were specifically in your care."[35]
Her Honour found nothing in the material before her that could in any way mitigate the circumstances of the applicant's offence. There was no evidence of remorse or clear acknowledgement of wrongdoing and the impact of his conduct upon the victims and their family was accepted to be profound. Notwithstanding the character evidence adduced on his behalf and the absence of any prior criminal history, it is apparent that the terms of imprisonment which reflected both the seriousness of the individual offences and the fact that there were three separate victims was required.
70 The sentencing judge directed attention to all of the relevant sentencing considerations and I am not able to find any error in her remarks concerning any of them. The individual sentences handed down, the orders for cumulation and the total effective sentence all fell within those available in the proper exercise of sentencing discretion and do not bespeak error.
71 I would dismiss these applications.
72 I have had the advantage of reading in draft the reasons for judgment of Vincent, J.A. and I agree with his Honour for the reasons that he gives that the application for leave to appeal should be refused. But I wish to add one matter.
73 Over the last ten years this court has held repeatedly that, where charges of sexual offences against several children are tried at the same time and the evidence of one child is not admissible in relation to the other, the jury must be warned not only to consider each count separately on the basis only of the evidence relevant to that count but also not to reason that if the accused molested one child, he is the kind of person who is likely to have molested the other child.
74 As Southwell, A.J.A. put it in R. v. T: [36]
"In any trial involving multiple offences, care must be taken to direct the jury as to the admissibility of the evidence in respect to the individual counts. Generally speaking, it will be necessary specifically to warn the jury, not only that proof of guilt upon one count is irrelevant to the question of guilt on any other count, but that the evidence led in support of a count against one offender does not go in proof of any other count involving another offender. The jury will be warned against mistreating such evidence as tending to prove an inclination towards the relevant criminal conduct. That is generally so, although there may be cases where counsel for an accused could persuade the trial judge not to draw the attention of the jury to the aspect of propensity.
In my opinion, it is particularly important that a jury should be warned when the evidence tends to show a paedophilic propensity. To prove that a man is sexually attracted to young children is to show an unnatural propensity: see Schneiders at p 15. This, of course, is one of the reasons why in such cases one rarely sees a trial where more than one victim is involved; almost without exception, it is only where the similar fact doctrine applies that a trial will involve offences against more than one victim.
The principle involved is not greatly different where an accused is charged with a sexual offence, and evidence is led of other sexual offences committed upon the same victim. The principal basis for the admission of such evidence is to establish the relationship which exists between the accused and the victim or, as has sometimes been said, to establish the existence of a guilty passion. Yet even in such a case care must be taken to direct the jury as to the use which may, and may not, be had of that evidence." [37]
75 The reasons for requiring a propensity warning in such cases in addition to a separate consideration direction are explained in each of the authorities mentioned but with respect perhaps most clearly and convincingly in R. v. TJB.[38] As they demonstrate, there is a greater need for a propensity warning (in addition to a separate consideration direction) in cases where evidence is ruled to be not cross-admissible than in cases where it is.
76 In recent times, it has also been remarked almost as often that, where a judge gives a propensity warning of the kind required in T, it is preferable that he or she does so in terms or to the effect that in the event that the jury find that the accused committed an offence with one of the complainants "the jury is not to reason that the accused is the kind of person who is likely to have committed the other offences charged". The reasons were restated by Callaway, J.A. in DCC_,__[39]_ and have since been repeated several times in other judgments.
77 Despite his Honour's observations, and similar observations by other judges of this court, we continue to see a significant number of cases in which one of the grounds of appeal is that the trial judge did not follow the preferred form of warning. Regrettably, this is one more such case. The judge used a form of words which came close to the form suggested by Hunt, CJ at CL in R. v. Beserick,[40] but which in result was not as clear as it could have been or should have been.
78 It is accepted that, in some circumstances, forms of the warning other than the preferred form of warning may be sufficient.[41] As Callaway, J.A. put it in DCC,[42] the preferred form of warning should be used but in the end the sufficiency of a warning, however it is phrased, depends on the facts of the case, the precise language employed and the context. But, self evidently, doubt is to be avoided if is possible and most times the way to avoid doubt is to stick with the form of warning
that has been sanctioned.
79 In the end, bearing in mind the facts of the case, the precise language employed and the context, I am not persuaded that the direction was inadequate to convey to the jury the need to avoid propensity reasoning. But I admit to having some reservations about it.
80 I agree that the applications for leave to appeal against conviction and sentence in both matters should be refused and I do so for the reasons advance by Vincent, J.A. in his judgment.
[1] Counts 1, 2, 4, 7, 8, 10, 12, 13, 14, 15, 16, 17 and 20 on Presentment No. S00563438.1.
[2] Counts 3, 5, 6, 11 and 19 on Presentment No. S00563438.1. The applicant was found not guilty in relation to one count of committing an indecent act with or in the presence of a child under the age of 16 (count 21); one count of taking part in an act of sexual penetration with a child under the age of 16 (count 18); and one count of making a threat to kill (count 9).
[3] Count 2 on Presentment No. S00563438.2. The applicant was found not guilty in relation to one count of committing an indecent act with or in the presence of a child under the age of 16 (count 1).
[4] On 9 February 2005, the applicant was arraigned and pleaded not guilty in the County Court to Presentment No. S0056348 which contained 16 counts of wilfully committing an indecent act with or in the presence of a child under the age of 16; six counts of taking part in an act of sexual penetration with a child under the age of 16 and one count of making a threat to kill. On 15 February 2005, the trial judge heard pre-trial argument in respect of an application to sever the presentment in relation to one of the complainants. The application was granted and two counts were severed. On 16 February 2005, Presentment Nos. S00563438.1 and S00563438.2 were filed over the original presentment.
[5] Her Honour also declared that on counts 3, 4, 5, 6, 7, 8, 10, 11 , 12, 13, 14, 15, 16, 17, 19 and 20 on Presentment No. S00563438.1 and on count 2 on Presentment No. S00563438.2, the applicant was sentenced as a serious offender pursuant to the provisions of the Sentencing Act 1991. She further declared that, pursuant to the provisions of the Sex Offenders Registration Act 2004 and by reason of the applicant's conviction on counts 1, 2, 4, 7, 8, 10, 12, 13, 14, 15, 16, 17 and 20 on Presentment No. S00563438.1 and count 2 on Presentment No. S00563438.2, he be registered as a Class 2 offender. It was also declared that by reason of his convictions on counts 3, 5, 6, 11 and 19 on Presentment No. S00563438.1, he be registered as a Class 1 offender.
[6] A further ground 6 was not pursued and need not be addressed.
[7] A further ground 4 was not pursued and need not be addressed.
[8] Objection was taken to the admission of this evidence at the trial and the question was considered on the basis of the depositional material.
[9] T179.
[10] T179-180.
[11] T180-181.
[12] T181-183.
[13] R. v. MWL [2002] VSCA 221.
[14] Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427.
[15] Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 451.
[16] T377.
[17] Palmer v. R. [1998] HCA 2; (1998) 193 C.L.R. 1.
[18] Palmer v. R. [1998] HCA 2; (1998) 193 C.L.R. 1 at 7 per Brennan, C.J., Gaudron and Gummow, JJ.
[19] Palmer v. R. [1998] HCA 2; (1998) 193 C.L.R. 1 at 9.
[20] T273.
[21] T386-387.
[22] T374.
[23] Longman v. R. [1989] HCA 45; (1989) 168 C.L.R. 1.
[24] Longman v. R. [1989] HCA 45; (1989) 168 C.L.R. 1 at 91.
[25] T433.
[26] T32.
[27] T208-210.
[28] Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555.
[29] M v. R. [1994] HCA 63; (1994) 181 C.L.R. 487.
[30] A further ground 2, in respect of both applications for leave to appeal against sentence, was abandoned.
[31] Sentence T289.
[32] Sentence T291.
[33] Sentence T291.
[34] Sentence T282.
[35] Sentence T290.
[37] ibid. at 299; see also R. v. J (No 2) [1998] 3 V.R. 602 at 642; R. v. TJB [1998] 4 V.R. 621 at 633; R. v. DCC [2004] VSCA 230; (2004) 11 V.R. 129 at 131[4].
[38] [1998] 4 V.R. 621 at 629-633.
[39] [2004] VSCA 230; (2004) 11 V.R. 129 at 134[14].
[40] (1993) 30 N.S.W.L.R. 510 at 515-516.
[41] R. v. Glennon (No.2) [2001] VSCA 17; (2001) 7 V.R. 631 at 679.
[42] [2004] VSCA 230; (2004) 11 V.R. 129 at 134 [15]; see also Eames, J.A. at 143 [57]-[59].
R
B O [2006] VSCA 247