R v D [1999] VSCA 148

Court of Appeal (Vic)|1999-09-23|Before: PHILLIPS, C.J., TADGELL and CHERNOV, JJ.A.

The applicant, who is now aged 64, pleaded not guilty on 14 September 1998 in the County Court at Melbourne to a presentment filed on 29 July 1998, alleging -

(a) one count (count 1) of gross indecency and three counts (counts 2-4) of indecent assault involving the niece of his wife

(b) ten counts (counts 5-11, 13-15) of indecent assault on his daughters whom I shall call A, B and C and one count (count 12) of gross indecency involving C

(c) one count (count 16) of indecent assault on one of his grand-daughters

(d) two counts (counts 17 and 18) of indecent acts with a child under 16 years, namely, another of his grand-daughters.

The offences were allegedly committed between 1974 and 1985 and at the time of all but three of them, the victims were aged 10 years or younger.

After a trial in relation to the counts involving the applicant's daughters on 23 September 1998, the jury returned verdicts of guilty in respect of all but two counts (counts 7 and 14). On 24 September 1998, following a plea in mitigation, his Honour sentenced the applicant to a total effective period of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 9 months. On 29 September 1998, the applicant was found guilty of the three counts involving his two grand-daughters. On 1 October 1998, after hearing a plea in mitigation, the applicant was sentenced to 4 years' imprisonment in respect of those convictions. His Honour ordered that 18 months of that period be served cumulatively with the first sentence, producing a total effective sentence of six years, and fixed a non-parole period of four years.

The applicant sought leave to appeal against the convictions recorded at the two trials and the sentences imposed in respect of them. When the matter first came before this Court, the Crown conceded that the second set of convictions could not stand because evidence of the conviction of the applicant in relation to certain counts involving C should not have been led in the second trial. Consequently, it made no submissions against the orders sought by the applicant, namely, that leave to appeal against the three convictions be allowed, that they be quashed and that a new trial be had in respect of counts 16 to 18.

It is necessary to mention a number of background matters. The first is that at the listed contested committal hearing on 19 November 1997, the applicant pleaded guilty to five representative charges of sexual offences committed by him against his daughters and his wife's niece. The applicant had been charged with a greater number of offences but as a result of a plea bargaining process, the prosecution was prepared not to press the other charges if the applicant pleaded guilty to the five representative charges. The applicant was advised by his then counsel and by his solicitor to plead guilty. I will come back later to the circumstances in which the applicant came to plead guilty.

Because of these developments, the matter was listed in the County Court as a plea hearing. In anticipation of that taking place, the defence provided to the Crown copies of psychiatric reports it proposed to tender as part of the plea in mitigation of sentence that was to be made on behalf of the applicant. The documents showed or appeared to indicate that the applicant had been receiving treatment as a sexual offender.

When the matter came on before the court on 10 March 1998 for plea in mitigation and sentencing, the applicant's counsel told his Honour that his client intended to change his plea to not guilty. This decision was made unilaterally by the applicant and not as a consequence of advice by his legal advisers. In the light of that development, his Honour listed the matter for trial on 31 August 1998. The copies of the psychiatric reports referred to earlier then remained with the Crown. Although I will deal with the matter more fully later, it is convenient to mention now that on 13 March 1998, his Honour ordered the Crown to return the copies of those reports to the defence. Accordingly, they were handed back to the applicant's solicitors and there is no suggestion that the Crown had previously copied them and retained such copies for itself. It is common ground, however, that its representatives had read the copy reports and were aware that the applicant had or might have received treatment from a psychiatrist or a psychologist as a sexual offender.

On 31 August 1998, the presentment containing 18 counts having been filed, the applicant, through his new counsel applied to his Honour for leave under clause 13, Schedule 5 of the Magistrates' Court Act 1995, to cross-examine the complainants (other than the grand-daughters), namely, the applicant's daughters and his wife's niece. His Honour granted the leave sought and on 4 and 7 September 1998, they were cross-examined in the Magistrates' Court by counsel for the applicant.

Upon arraignment, on 14 September 1998, the applicant pleaded not guilty to the 18 counts. In the circumstances mentioned earlier, his Honour directed that an acquittal be entered on the first four counts and ordered severance of the three counts relating to the grand-daughters. The applicant's counsel also sought severance of the remaining counts and a separate trial in respect of each daughter. His Honour's refusal of that application forms the basis of one ground for leave to appeal against conviction.

Before evidence was given at the applicant's first trial, his counsel sought a direction from his Honour that the Crown be precluded from leading evidence that the applicant had pleaded guilty in the Magistrates' Court. In relation to that application, his Honour heard evidence on a voir dire from the applicant and his former counsel and on 17 September 1998, ruled that evidence of the applicant's plea of guilty could be adduced during the trial. As a consequence, an agreed statement of facts relating to the applicant's plea of guilty was read into evidence. This ruling forms the basis of another ground of the application for leave to appeal. Before the applicant gave evidence, his Honour ruled that the Crown was entitled to cross-examine the applicant and adduce evidence on the question whether he had sought psychiatric treatment as a sexual offender. The judge so ruled notwithstanding that the proposed cross-examination and evidence would be based on information gleaned by the prosecution from the copy reports to which I referred earlier. This ruling also forms the basis for one of the grounds of the application for leave to appeal.

Most of the sexual offences with which the applicant was charged involved his behaviour towards C and it is fair to say that two of the counts involving that daughter (counts 8 and 9) are concerned with the most heinous of all the allegations. His conviction on counts 8 and 9 attracted the longest sentences of 2 years and 4 years respectively. One of the grounds of the application for leave to appeal against sentence was that the term of imprisonment imposed in relation to count 9 was excessive and disproportionately long. I propose, therefore, to summarise first the evidence given by C in relation to counts 8 and 9 and then deal with the other counts relating to her. After that, I shall summarise the evidence concerning the other complainants.

On an occasion in 1974 when C was aged 8 (and while she was in her pyjamas) she took a bowl of cereal to the applicant who was in bed. When he had eaten it he directed her to kneel by the bed and then scratched the palm of her hand with his fingers asking: "Do you know what this means?". When C said she did not, the applicant said "It means I want to put it in". He then pulled back the sheets to expose his erect penis. Because his son then came in to the room to bring him coffee, the applicant covered his body with the sheet. When the son had left, the applicant took his daughter's hand, wrapped it around his penis and moved it up and down with both hands. When C objected, the applicant merely told her to "keep pulling it" and that ""It feels good, doesn't it?". In respect of that offence, the applicant was sentenced to 2 years' imprisonment.

On the same occasion, when the daughter stopped masturbating the applicant because, as she said, she became tired, the applicant pushed her head down on his penis and made her mouth touch it. She clenched her teeth and pulled away. The applicant then grabbed his daughter again and pulled her head down and inserted his penis into her mouth. As a result, she vomited. The applicant demanded that she get a towel and clean it up. After C cleaned up the mess and got dressed, the applicant called her back. He pointed to coins on the bedside table and told her they were hers. The applicant was sentenced to 4 years' imprisonment on count 9.

This count relates to the occasion when the applicant ran his hands over C's body, placed them underneath the waistband of her underpants and tried to play with her vagina. He was sentenced to 1 year and 6 months in respect of that count.

On yet another occasion when C was aged 9 or 10, she accompanied the applicant and her three brothers on a fishing trip in a small boat. At some stage during that trip, the applicant made the boys sit in the front seat of the boat and face in that direction and not look back. She said in her evidence that her brothers feared the applicant and obeyed his instructions. The applicant then undid the zipper of his trousers, took C's hand and moved it along his penis and told her to keep on stroking it. He then took two pieces of squid from the bait, cutting them on the board, put them together in the shape of a vagina and said "Look at this, what does this look like?" and suggestively applied his finger to it. In respect of that count, the applicant was sentenced to 2 years' imprisonment.

There was a further occasion during this period when C was almost 9 years of age and the applicant called her into his bedroom and requested that she lie down on the bed beside him. He then undid his trousers and pulled out his penis and played with it. He asked C to "let me put it in, just once let me put it in". C refused but the applicant repeated his request. In respect of that count, the applicant was sentenced to 1 year and 6 months' imprisonment.

These counts concern the applicant's conduct towards his daughter C when she was aged between 14 and 19 years. Count 13 involved the applicant putting his tongue in her ear and proceeding to rub his erect penis against her back, despite her protestation. For this he was sentenced to 6 months' imprisonment. Counts 14 and 15 alleged that the applicant kissed C in a sexual manner with his tongue. No evidence was led in respect of count 14 so that his Honour directed a verdict of acquittal on that count. In respect of count 15 he was sentenced to 3 months' imprisonment.

This count relates to the applicant's daughter A. When she was aged 9 or 10 the applicant knelt down by the couch on which she lay, "nibbled" her ear and started to kiss her. He then put his hand into her pants touched her vagina and inserted his finger into it. A screamed out not to touch her private parts. When she threatened that she would tell her mother, he put his hands in his pocket and gave her a handful of coins telling her not to do so. The applicant was sentenced to 12 months' imprisonment in relation to this count.

These counts relate to the applicant's daughter B. They involved kissing her through her clothing over her right breast when she was 10 years of age (in respect of which the applicant was sentenced to 6 months' imprisonment which was cumulated upon the four-year term of imprisonment imposed in relation to count 9) and forcing a mussel into her mouth in a sexual manner by using his tongue whilst in the kitchen of his home (in respect of which the jury returned a verdict of not guilty).

I set out below the sentences imposed by his Honour in relation to each count in respect of which the jury had returned a verdict of guilty.

6 6 months cumulative upon the sentence in respect of count 9

Thus, the total effective sentence imposed on the applicant was 4 years and 6 months with a non-parole period of 2 years and 9 months.

The Crown also led evidence of uncharged acts of the applicant of a sexual and non-sexual nature. It included evidence of the applicant regularly playing tickling games with his daughters and in the process touching their private parts, kissing them with an open mouth in a sexual manner and putting or trying to put his tongue into their mouths and ears. Evidence was also given about his strong and often violent disciplinary and bullying acts in relation to the children.

The Crown relied, inter alia, on evidence which it claimed constituted admissions made by the applicant to his daughters in respect of his sexual abuse of them. One item of such evidence was a letter that he sent to his daughters dated 25 October 1994. The letter that was sent to C was tendered as Exhibit 1. In it, the applicant apologised "for all things I have done to you and the family". He went on to say that he "cannot go back to undo or change the past", that "I would like to say something more to each of you, but I am sending all the same letter because I love you all equally". The prosecution also relied on what the applicant said to B during a telephone conversation between them in late 1993 when she discussed with him what he had done to her in the past. The applicant's response was: "That was kindergarten stuff". During that conversation his daughter raised the incident involving C by asking "What about the oral sex?" to which the applicant replied: "That well, I'm not going to say anything ..". In addition, reliance was placed by the Crown on the applicant's plea of guilty in the Magistrates' Court and his undertaking of a sexual offender programme.

The applicant denied ever sexually abusing his daughters. He also denied giving his daughters coins in return for sexual favours, but did say that it was his habit to give the children "shrapnel" (small change) when it built up in his pockets.

The applicant stated that before he pleaded guilty in the Magistrates' Court, his counsel had given him advice to the effect that there was a real prospect that more than five charges would be proved against him which would mean that he would be considered a serious sexual offender and sentenced accordingly. He was advised that a sentencing discount might be available for an early plea of guilty which would have the added benefit of sparing the witnesses the ordeal of cross-examination at the committal and trial. He said that he felt pressured and just wanted to get it all over with and be reconciled with his family. Hence, he agreed to plead guilty. Later, his counsel advised him to reconsider his position and it was then that he gave instructions to plead not guilty.

During cross-examination, the applicant admitted that he had seen a psychologist and started a sexual offender program at the psychologist's instigation. He said that the program was discontinued because he did not admit to any sexual offences.

The applicant seeks leave to appeal against conviction and sentence on grounds which were amended pursuant to leave granted by the Registrar on 12 April 1999. The amendments included the addition of grounds 1(b) and 1(c) which related to the application for leave to appeal against conviction. Not all grounds, however, were ultimately pressed. I propose to deal with the grounds in the order in which they were argued.

This was the principal ground argued by Mr. Salek who appeared for the applicant. The amended ground alleges that his Honour failed to instruct the jury that they were not to reason that if the applicant committed an assault on one of the complainants, he was the kind of person who was likely to have assaulted the others. In the course oral submissions, however, Mr. Salek confined his argument under this ground to the contention that his Honour failed to give the jury a propensity warning in respect of the evidence of the applicant's charged conduct. The substance of his argument was that this conclusion follows from the fact that his Honour instructed the jury not to engage in propensity reasoning, but did so only in the context of the evidence of the applicant's uncharged acts. In those circumstances, Mr. Salek submitted, the jury might have misunderstood the warning as being confined to the uncharged acts and as entitling them to engage in propensity reasoning in respect of the evidence of the applicant's charged conduct.

For the reasons given below, it is my view that a fair reading of his Honour's charge does not lead to the conclusion that he confined his propensity warning to the evidence of the applicant's uncharged conduct or that the jury would have so understood the charge. It seems clear enough that in a case such as the present, which involves multiple sexual offences allegedly committed by one offender against a number of victims, as a general rule a propensity warning should be given to the jury in conventional terms in respect of the complainants' evidence of the applicant's conduct towards them including sexual acts, charged and uncharged (R. v. T. (1996) 86 A.Crim.R. 293, per Southwell, A.J.A. (with whom Callaway, J.A. and Smith, A.J.A. agreed) at 299-300; R. v. J. (No.2) [1998] 3 V.R. 602, per Callaway, J.A. at 640-2; R. v. T.J.B. [1998] 4 V.R. 621, per Callaway, J.A. at 633). The question of whether his Honour discharged this obligation involves an analysis of the relevant parts of his Honour's charge. In the course of explaining to the jury what his Honour termed as "evidentiary matters", he said this:

"The next matter of evidence to which I want to turn is what are called uncharged acts, that is, things that happened or are said to have happened that do not form the foundation of any of the charges before you. Each of the complainants has spoken of other acts of a sexual nature perpetrated upon her by her father that are not the subject of any count on the presentment you have. Each has also spoken of the behaviour of her father towards his family. If you accept that evidence and that is a matter for you, how can you use it? Firstly, you may not use it and I cannot emphasise this enough, to reason from it that the accused is the sort of man who would do the acts alleged in the presentment you have before you. But you can use evidence of uncharged sexual acts, if you accept it, as establishing a sexual relationship that makes a complainant's allegation more likely to be true. Thus if the evidence of the uncharged acts was accepted by you as showing that the accused was inclined to sexual acts with a particular daughter or one or more daughters, then you might well think that the evidence of a particular daughter concerning a particular sexual activity which is charged against the accused on the presentment is the more credible or believable. In other words, it bears upon the likelihood that the offence charged was, in fact, committed. In addition, evidence of uncharged conduct, if accepted by you, may also be used by you to place the offences alleged in a true and realistic context and so assist you to evaluate them. For that context can itself bear upon the probability or otherwise of the Crown's charge having been committed.

In that context you may consider not only evidence of uncharged sexual conduct but evidence of uncharged non-sexual acts or behaviour by the accused towards his family, and in this case the Crown relies upon the conduct of the accused in allegedly dominating his family so far as appears from the evidence of the complainants as it has appeared before you.

If that is clear then the next matter is how do you deal with the fact that all of the daughters have given evidence before you of what was done to them. Each of the daughters have given evidence that the accused had dealt with her sexually. While you are obliged to consider each count separately, and cannot convict on any count unless you are satisfied it is proved beyond reasonable doubt, you are nevertheless entitled to consider the evidence of all of the daughters taken together in determining whether any of them is telling the truth."

Mr. Salek submitted that in the last paragraph of the re-produced passage, his Honour was speaking only of charged acts yet failed to warn the jury against propensity reasoning in relation to them. In my view, however, this paragraph is not confined to evidence of charged acts; it deals both with charged and uncharged conduct. In that passage, his Honour draws no distinction between the categories of the applicant's sexual behaviour towards his daughters.

I mention for completeness that his Honour then went on to speak of the dangers of convicting the applicant on the evidence of the daughters alone and later, he gave the jury a strong separate consideration direction which included the following passage:

"... It would be quite wrong for you to say that simply because you find the accused guilty or not guilty on one count then he must be guilty or not guilty, as the case may be, of another. Each count must be considered separately in the light of the evidence which applies to it and you must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt that he is guilty of this crime?'"

It is clear enough from the reproduced parts of his Honour's charge that he explained to the jury the basis on which the evidence of the applicant's uncharged acts was before them and how they could use that evidence in their deliberations. His Honour also told them in clear terms that they must not engage in propensity reasoning on the basis of that evidence. But the mere fact that the propensity warning was given in the context of uncharged acts does not mean, as was contended for by Mr. Salek, that the jury was thereby told that the warning had no application to the evidence of the applicant's charged acts (and that, therefore, they could engage in propensity reasoning in relation to that evidence). In my view, a fair reading of the relevant parts of the charge taken in the context of the whole of the charge, shows that no distinction was drawn by his Honour between charged and uncharged acts for the purpose of the operation of the propensity warning. Although given in the context of uncharged acts, its terms draw no distinction between the uncharged and charged acts of the applicant. This is not surprising since there was no apparent reason for his Honour to draw such a distinction when instructing the jury not to engage in propensity reasoning. Furthermore, when referring to the jury's entitlement to consider the evidence of all the daughters as to how the applicant dealt with them sexually, his Honour also drew no distinction between the charged and uncharged conduct of the applicant.

It is true that his Honour could have been more specific about the matter now in issue, but for reasons I have given, I am not satisfied that the jury would have interpreted his Honour's propensity warning as was contended for by Mr. Salek.

It seems clear enough that the applicant's counsel at trial, who is an experienced advocate, also did not consider that his Honour's propensity warning was confined to uncharged acts. He took exception to that part of the charge which dealt with the propensity warning, but not on the basis that his Honour omitted to give it in relation to the charged acts; so far as is relevant, the essence of his complaint was that in directing the jury in respect of uncharged acts, his Honour did not emphasise sufficiently that they should not substitute the relationship evidence for the evidence of offences charged. In that context, he relied on what Callaway, J.A. said in R. v. Best, at 615, where his Honour referred to what he had said in that regard in R. v. Grech [1997] 2 V.R. 659, 614. Such an exception having been taken, the jury was further directed on that particular point.

In these circumstances, it is my view that his Honour sufficiently warned the jury that they should not reason that if the applicant committed an assault on one of the complainants, he was the kind of person who was likely to have assaulted the others.

Consequently, in my view, this ground of appeal must fail.

This was the next ground argued by Mr. Salek. He submitted that his Honour should have severed the presentment relating to the daughters so that the counts involving one daughter would be tried separately from the other counts on the presentment.

It was not submitted, however, that the counts ought not to have been joined in one presentment. It seems clear enough that the offences formed part of a series of offences of the same or similar character within the meaning of Rule 2 of the presentment rules in the Sixth Schedule of the Crimes Act 1958, so that there was a proper joinder of the relevant counts for the purposes of s.371 of the Crimes Act (R. v. Demirok [1976] VicRp 19; [1976] V.R. 244. See also Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29, 39; R. v. Kray [1970] 1 Q.B. 125, 130-1; R. v. Collins (1994) A.Crim.R. 204, 208).

Since the counts charged the applicant with sexual offences for the purposes of s.372(3AA) and since they have been properly joined on the one presentment, it is presumed by that sub-section that they are triable together. Notwithstanding such a presumption, it is clear that the court has a discretion to order separate trials of any of the counts on the presentment ( s.372(3); R. v. TJB, at 626.)

It was contended by Mr. Salek that the trial judge should have exercised his discretion to order separate trials. He put the following arguments. First, it was contended that there was no underlying unity between the eight counts involving C, the two counts involving B and the one that was concerned with A. It was also submitted that the prejudice to the applicant from the evidence as to what the applicant did to C in terms of sexual abuse would be overwhelming and no direction by the Court would sufficiently mitigate it. It was pointed out that the evidence in relation to those acts covered a range of sexual offences which were allegedly perpetrated over a lengthy period, whereas the alleged acts of the applicant in respect of the other two daughters were much more confined in terms of the number of acts, the type of conduct and the period of time during which they occurred.

In my opinion, however, there was an underlying unity (Thompson v. R. [1989] HCA 30; (1989) 169 C.L.R. 1, 39-40) in the evidence of the three daughters so as to warrant a joint trial. As the trial judge said, each was the daughter of the applicant and was sexually abused while she was residing with him. Nearly all were so abused before they were even teenagers. The applicant dominated the children and was an authoritative figure in the household so far as they were concerned. In the case of two sisters, he gave each money after he had sexually abused her to an extent where she was particularly upset by his acts. Furthermore, the applicant used similar methods in relation to some of his sexual behaviours towards his daughters, such as placing his hands inside their underwear.

That evidence was relevant to the question of the relationship that existed between the applicant and each of his daughters. Further, the jury was entitled to have regard to the totality of the daughters' evidence in relation to the charged acts for the purpose of determining whether they were telling the truth. Thus, it had probative value sufficient to justify a joint trial and in my view, its probative value exceeded its prejudicial effect, so that his Honour did not err when he refused to order severance of the presentment relating to the applicant's daughters.

It follows that it is my view that this ground has not been made out.

It will be recalled that his Honour told the jury that in determining whether a relationship existed between him and his daughters, they could have regard to uncharged non-sexual acts of the applicant, more particularly, the evidence of his domination of his children through the infliction of corporal punishment and threats. As I understood Mr. Salek, he first contended that his Honour erred in so directing the jury because non-sexual uncharged acts cannot properly form part of the relationship evidence. In my view, however, there is no substance in that contention. Propensity evidence is not limited to sexual offences. It extends to other discreditable conduct reflecting the bad character of the accused (R v. Tektonopoulos, [1999] VSCA 93, per Winneke, P., at 8; R. v. Best, per Callaway, J.A., at 608).

It was then submitted that in any event, his Honour failed to identify the non-sexual uncharged conduct of the applicant. It was said that the description by his Honour of that conduct, namely, domination by the applicant of his children, was too broad and gave rise to a risk of impermissible prejudice to the applicant's case. In my view, however, his Honour sufficiently identified the relevant conduct as being his disciplinarian behaviour towards the children as described in the evidence of his daughters. They gave evidence about it in specific terms by reference to events, such as the use of the strap by the applicant and the fact that the children were too frightened to disobey his instructions. In my view, it was not incumbent upon his Honour to set out in his charge, a summary of that evidence as was impliedly contended for by Mr. Salek.

It was also submitted by him, as I understood it, that his Honour's direction to the jury as to the use of non-sexual uncharged acts was contradicted by his Honour's later statement that the applicant was not on trial for being a strict disciplinarian or bad father. In my view, however, there is no inconsistency between those statements. The evidence of the applicant's non-sexual uncharged conduct could be taken into account by the jury to determine the context in which they were to assess whether the applicant had committed the acts with which he was charged. In making the observation that the applicant was not on trial for being a strict disciplinarian or a bad father, his Honour was doing no more than effectively directing the jury not to be prejudiced against him by reason of those facts (assuming that they were satisfied of them) and not to convict him of the offences charged merely because they concluded that he was such a person. In my opinion, it was a proper direction to give to the jury and was advantageous to the applicant.

In any event, the applicant's counsel had an opportunity to draw those so-called defects to his Honour's attention at the end of the charge and have his Honour re-direct the jury on those points. No exception, however, was taken and it is too late for the applicant to complain about it now.

It was further contended by Mr. Salek that his Honour failed to tell the jury that when C and B were cross-examined by counsel for the applicant in relation to the uncharged non-sexual conduct of the applicant, it was for the purpose of seeking to establish that they were untruthful. If that constitutes a complaint about his Honour's charge, it seems to fall outside ground 1(c) which is concerned with an attack on the judge telling the jury that they could take into account for certain purposes, evidence of the applicant's uncharged non-sexual conduct. Be that as it may, this complaint could have been raised with his Honour by way of exception to the charge and clarified and, if need be, corrected then and there. This was not done by counsel for the applicant and it has not been suggested that this was due to an oversight on his part. It is now too late to raise the matter.

Thus, in my view, this ground of appeal must also fail.

I have already mentioned that the applicant pleaded guilty at the proposed committal hearing in relation to five of the charges that were brought against him. He did so after he had received advice from his counsel and his solicitor that in the circumstances, he should plead guilty. The applicant was also given the usual caution by the magistrate. At the trial and over the objection of counsel for the applicant, the judge permitted the prosecution to lead evidence of the guilty plea.

His Honour heard evidence from the applicant and his former counsel on a voir dire and concluded that the plea of guilty was made voluntarily. He also refused to exercise his discretion to exclude evidence of the plea on the claimed basis that its prejudicial effect outweighed its probative value.

Mr. Salek's principal argument was that the plea was rendered involuntary by reason of incorrect legal advice that had been given to the applicant by his former counsel. The applicant was advised at the committal stage that if the matter proceeded to trial it was likely that more than five charges would be proved against him in which case the court would be obliged to cumulate the prison sentences in respect of each charge resulting in a significant period of imprisonment. It is common ground that this advice was wrong; even if the applicant had been so convicted, the court retained a discretion whether to cumulate the sentences. Mr. Salek argued that the applicant relied on this aspect of the advice in deciding whether to plead guilty and since the advice was erroneous, the plea was rendered involuntary. He also contended that in the circumstances, it would be unfair to allow the Crown to lead evidence of the plea of guilty.

For the purpose of determining whether the plea was voluntary, the totality of the circumstances surrounding the giving of the legal advice must be examined. I should mention at this point that it was not suggested by Mr. Salek that the applicant's will was overborne and by reason of that, he pleaded guilty. The advice tendered to the applicant by his former counsel was not limited to that which was erroneous. It included advice that it was counsel's strongly held view that a jury would accept most if not all the allegations made against him. She also advised that a significant discount in sentence would be given for an early plea of guilty and that an early plea would be the best course of action because that would place him "in the ball park" for a non-custodial sentence. This and associated advice were tendered to the applicant orally and in writing (Exhibit A). In her letter, counsel went on to say that she was of the strong view that he would receive a significantly longer term of imprisonment at the conclusion of a trial than he would for a plea of guilty.

On the voir dire, the applicant essentially contended that he was pressured into pleading guilty and that he did not fully understand the ramifications of doing so. He also claimed that he did not properly hear or understand the warning given to him by the magistrate. His Honour rejected the applicant's evidence where it conflicted with that of his former counsel and in particular, his claim that he was not aware that he was pleading guilty to the allegations of sexual abuse of his daughters and that he did not hear or understand the magistrate's warning.

After hearing the applicant and his former counsel on the voir dire, his Honour found that he was satisfied beyond reasonable doubt that the applicant pleaded guilty in the exercise of a voluntary and deliberate choice, well understanding what he was doing. His Honour also concluded that the erroneous advice did not nullify that plea nor did it make it unfair to admit evidence of it. What drove the applicant to plead not guilty was the prospect that such action would produce a non-custodial or a relatively short, prison sentence. His Honour also concluded that the probative value of the plea far outweighed any prejudice that may be caused to the applicant by its admission. Accordingly, he allowed evidence of the plea of guilty to be led before the jury.

In my view, there was ample evidence on which his Honour could make such findings. In particular, his Honour was entitled to conclude, as he necessarily did, that the incorrect legal advice which was tendered to the applicant by his former counsel did not render the plea involuntary. There was no mention by the applicant in his evidence that he particularly relied on that aspect of her advice or that he regarded that aspect of her opinion as being particularly important when compared with the rest of her advice or that he made his decision to enter the plea primarily on the basis of that aspect of the legal opinion. The advice concerning the compulsory cumulation of sentences was but one aspect of the total advice tendered to the applicant. His own evidence made it clear that he pleaded guilty because he believed that gave him the best opportunity of securing a non-custodial sentence. In cross-examination, he said that he was advised that things would be better for him if he pleaded guilty and that he accepted the advice and pleaded guilty in order to help his own position.

In light of this, there is no basis for contending that the error as to part of the legal advice given to the applicant rendered the plea which was otherwise voluntary, involuntary.

His Honour's conclusion that the plea was made voluntarily meant that it amounted to an admission of all the ingredients of the offence charged against him and, in accordance with the caution administered by the magistrate, became available to be used in evidence against him at his trial (D'Orta-Ekenaike v. R. [1998] 2 V.R. 140, 144). The evidence of the guilty plea was clearly relevant to the prosecution case and was admissible. For the reasons given by Winneke, P. in D'Orta-Ekenaike v. R., at 145, the applicant was aware from the moment he entered that plea that it was likely to have evidential consequences at any subsequent trial.

The question that was next raised was whether that evidence should have been excluded in the exercise of judicial discretion because its prejudicial effect allegedly outweighed its probative value. His Honour refused to exercise his discretion in this respect and, in my opinion, he was right to do so. The evidence of the guilty plea was highly probative in this case bearing in mind that the applicant's defence was that he had not sexually assaulted his daughters at all. Such probative value was, as the President said in D'Orta-Ekenaike v. R., at 146, "potent". In my view, its probative value clearly outweighed its prejudicial effect. I note that no complaint was made by the applicant on the appeal about his Honour's charge to the jury in relation to the evidence that was led to establish that the applicant had pleaded guilty. In my opinion, therefore, his Honour's discretion on this issue did not miscarry.

Consequently, this ground of appeal must also fail.

Cross-examination re sexual offender treatment (Ground 3)

This ground is concerned with his Honour's ruling that the Crown was permitted to cross-examine the applicant as to whether he had received psychiatric or psychological treatment as a sexual offender. It will be recalled that his Honour ruled on 13 March 1998, that the Crown had to return to the defence the copies of the psychiatric reports which were given to it in anticipation of the originals being tendered in support of the then proposed plea in mitigation. After the copy reports were given to the Crown, the applicant indicated that he would plead not guilty and sought their return. His Honour took the view that they were given to the Crown for a specific purpose which did not eventuate. In the circumstances, he said, their retention by the Crown would constitute an abuse of process. Moreover, according to his Honour, unfairness to the applicant may eventuate if the Crown retained the documents. For example, it could have used the documents to cross-examine him. In the circumstances, the judge ordered the Crown to return them to the defence. That order was complied with.

But the Crown had become familiar with the contents of the reports before they were returned to the applicant. That is unsurprising since they were given to it for the purpose of its officers becoming aware of their contents so that they could formulate the Crown's attitude to their proposed tender. Thus, the Crown learned and remained seized of information that the applicant had received psychiatric treatment as a sexual offender. It intended to cross-examine him to establish that he had in fact received such treatment. On the face of it, the undertaking of such treatment was inconsistent with the applicant's defence that he had not sexually assaulted his daughters. Hence, the cross-examination would be relevant to a critical issue before the court.

At the trial, the applicant's counsel contended that such cross-examination would amount to an abuse of process. His Honour ruled, however, that the Crown was entitled to cross-examine the applicant and so use against him the information it gleaned from the copy reports which were formerly in its possession. His Honour did not regard such use of the information as amounting to an abuse of process. In coming to that conclusion, his Honour drew a distinction between the Crown using the documents for cross-examination purposes and using the information which it had gained from reading them.

It was submitted by Mr. Salek that his Honour erred in allowing the prosecution so to cross-examine the applicant. There is no material difference, so he submitted, between the copy reports and the information contained in them, so that if his Honour ordered them to be returned because, inter alia, the Crown could not use the documents to cross-examine the applicant, the Crown should not have been allowed to use the information gained from the reports to cross-examine him during the trial. Put another way, it was submitted that his Honour's first ruling was correct and that his second ruling was inconsistent with the first and, therefore, was wrong.

Whether or not there is inconsistency between the two rulings, in my view, his Honour did not err in allowing the Crown to use the relevant information to cross-examine the applicant. Whatever may be the position about the use of the actual documents, it seems clear that the applicant waived any privilege as to their contents when he gave them to the Crown for the purpose of it becoming familiar with their contents. That being so, he can not now complain about the Crown's use of that information. Such use of that material did not, in my view, amount to an abuse of process. In my view, the cross-examination was plainly relevant and the probative value of the evidence which was to be adduced outweighed its prejudicial effect.

Consequently, this ground of appeal also fails.

In relation to the application for leave to appeal against sentence, Mr. Salek rested on the written submissions which he had made available to the Court. He submitted first that some part of the sentence of 6 months' imprisonment imposed in relation to count 6 which involved B should have been made concurrent (and not cumulative as his Honour ordered) with the sentence of 4 years' imprisonment in relation to count 9 which involved C.

There was, however, no relevant relationship between the offences that were the subject of counts 6 and 9. Put another way, the acts giving rise to those two convictions were not so closely related that they could reasonably be said to have arisen out of the one incident or transaction. They were separate incidents and involved separate victims and occurred at different times. Consequently, each conviction required his Honour to fix an appropriate sentence. No reason was advanced by Mr. Salek why any part of the sentence relating to count 6 should have been made concurrent with that applicable to count 9. In my view, it was open to his

Honour to cumulate the sentence imposed in relation to count 6 with that imposed in respect of count 9.

Mr. Salek's next submission was that the sentence in respect of count 9 was manifestly excessive, being double that of the next highest sentence of 2 years' imprisonment imposed in respect of counts 8 and 11. Whilst acknowledging that the conduct of the applicant covered by count 9 was the most heinous of all his charged acts, Mr. Salek nevertheless contended that the disparity between the sentence imposed in relation to count 9 and the other sentences was not proportionate to the disparity in the heinousness of the conduct which was the subject of count 9 and the other counts.

It is not surprising that Mr. Salek acknowledged that the conduct relating to count 9 was the most heinous of all the charged acts. The offence involved the applicant using physical force against his eight year old daughter to make her have oral sex with him which caused her to vomit. His callousness was demonstrated further by his demand that she clean up after herself and then attempting to placate the child by giving her a small amount of loose money. There is no evidence that the applicant has shown any remorse in relation to this or any of the other offences so as to warrant a sentencing discount. As his Honour pointed out in his sentencing remarks, the maximum sentence prescribed for the offence of indecent assault for the relevant period was 5 years' imprisonment. It is trite that the question of whether a sentence is manifestly excessive does not admit of much elaboration (per Batt, J.A. in R. v. Cardona [1998] 2 V.R. 126, 135). In my view, it was open to his Honour in determining the sentence to be imposed in relation to this count to have regard, as his Honour did, to general and specific deterrence. It was also appropriate to have regard to the need to reflect in the sentence denunciation of the applicant's conduct. In my opinion, it was open to his Honour to impose the sentence of 4 years in relation to this count even if, on one view, that may be regarded as being on the high side. Moreover, the difference between that sentence and the sentences in relation to the other counts adequately reflects the relative seriousness of the offences.

It was also submitted by Mr. Salek that his Honour did not review the aggregate sentence as is required by Mill v. R. (1988) 166 C.L.R. 59, to determine whether it was appropriate. His submission was, in effect, that if his Honour had so reviewed the aggregate sentence, he would or should have found it to be excessive. The premise on which this submission is based is that the aggregate sentence was excessive. Mr. Salek did not advance any reason for that contention. In my view, given the applicant's charged conduct, the aggregate sentence was within the range open to his Honour. There is no basis for Mr. Salek's contention that his Honour did not review the aggregate sentence in order to determine whether it was appropriate.

Mr. Salek's fourth ground was that the sentences are manifestly excessive. In connection with that submission, Mr. Salek pointed to the fact that the applicant is 63 years of age and had otherwise led a blameless, but productive life. It was also submitted that he is suffering ill-health and has been disavowed by his family, save for one son. But these and other matters were put to the sentencing judge on behalf of the applicant in the course of the plea made in mitigation of sentence. As is evident from his Honour's sentencing remarks, he gave due consideration to all matters so put to him, including the victim impact statements which show the lasting detrimental effect the applicant's conduct had on his daughters. They continue to feel degraded and humiliated and their terrible experience is ever present during their daily lives. The offences were committed at a time when the daughters were young girls, in nearly all cases before they were even teenagers and involved a serious abuse of trust that was reposed in the applicant as their father. In the circumstances, the sentences called for the application of general and specific deterrence as well as an expression of denunciation of the heinousness of the applicant's conduct. In my view, in the circumstances, the sentences are not manifestly excessive.

For these reasons his Honour's sentencing discretion did not miscarry.

For the above reasons, it is my view that orders should be made in the form below or to that effect:

(1) (a) That the application for leave to appeal against convictions on 23 September 1998 on counts 5, 6, 8, 9, 10, 11, 12, 13 and 15 be refused.

(b) That the application for leave to appeal against sentence in so far as it relates to the sentences imposed in respect of the said counts be refused.

(2) That upon the application for leave to appeal against convictions on 29 September 1998 on counts 16, 17 and 18 -

(b) the appeal be treated as instituted and heard instanter and allowed;

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Parties

Cases Cited (1)