R v Deruiter [2003] VSCA 66

Court of Appeal (Vic)|2003-06-04|Before: CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A.

CRIMINAL LAW - Conviction - Consciousness of guilt - Adequacy of jury direction - Sexual penetration with a child - Indecent act with a child - Whether verdict unreasonable or cannot be supported having regard to the evidence.

We have had the advantage of reading, in draft, the reasons for judgment prepared by Warren, A.J.A. We agree, substantially for the reasons her Honour gives, that leave to amend the grounds of appeal should be refused and that the application for leave to appeal against conviction should also be refused.

The applicant was presented in the County Court at Bendigo on two counts of committing an indecent act with a child under 16 years (counts 1 and 2) and one count of taking part in an act of sexual penetration with a child aged between 10 and 16 years (count 3).

The applicant pleaded not guilty. The jury returned a verdict of guilty on all three counts after a trial lasting two and a half days. On 26 April 2002 he was sentenced to nine months' imprisonment on each of counts 1 and 2. The applicant was sentenced as a serious sexual offender in relation to count 3 and sentenced on that count to two and a half years' imprisonment. The sentences were to be served concurrently. A non-parole period of 15 months was fixed. A declaration of pre-sentence detention of 47 days was made.

The applicant sought leave to appeal against conviction.

In late July 2000 the applicant lived at a caravan park in Rushworth. The applicant came to know two young boys, N, then aged 14 years, having been born on 2 June 1986 and T, then aged 17 years. N lived with his father, P, at Rushworth. N and T were friends and on the weekend of 28 and 29 July 2000 T stayed with N's family. Up until late July 2000 the applicant worked at a local piggery and was referred to by the two boys as "Piggy".

There was evidence at trial that on the Friday evening of 28 July 2000, N and T visited the applicant at his caravan for about half an hour. The applicant asked them

to return the next night. On the afternoon of Saturday 29 July 2000 N and T were riding their bicycles and called in to see the applicant at his caravan. N asked the applicant if a party planned that night at the applicant's caravan was going ahead. The applicant told the boys it was not but said that he would buy some bourbon and beer and the three would have a quiet drink by themselves. N asked if the applicant wanted him to bring his father. The applicant said "No." There was some suggestion that there was an enquiry by the two boys as to the availability of cannabis from the applicant. Ultimately, in his sentencing remarks the trial judge considered it unnecessary to reach a finding in this respect.

N and T left and returned after dinner, this time walking to the applicant's caravan. When they arrived the applicant was about to go and shower at the amenities block. The two boys waited while he showered. The three then drove to a hotel to buy alcohol. N and T waited in the applicant's car while he bought the alcohol. The applicant bought a 700 ml bottle of bourbon, a slab of beer, some Coca Cola and a packet of cigarettes at the Rushworth Hotel. The purchase occurred at approximately 8.03 p.m. The three returned to the applicant's caravan and commenced to drink. Each of N and T had two or three shots of neat bourbon and then continued drinking a mixture of bourbon mixed with Coca Cola, probably one or two drinks. Meanwhile, the applicant drank beer only. About a quarter of the bottle of bourbon was consumed.

The two boys were quickly affected by the alcohol. T started to feel ill and passed out where he was seated. The applicant commenced to play a pornographic video to N. They watched the film for about half an hour. After a while N felt overcome by the alcohol. He lay down on a bed and suffered spinning sensations and then passed out. At the time N was wearing a pair of jeans with a zip fly, a studded belt, two T-shirts and a jacket. At the time he passed out the lights of the caravan were on. N was awoken to find his penis being sucked by the applicant. This was the act charged on count 3. N saw the applicant put his penis into his mouth once or twice. N found the applicant placing N's hand on the applicant's erect penis. This was the act charged on count 1. The applicant started masturbating N's exposed penis and this was the act charged on count 2. The light of the caravan was out but the video was still playing and N could see by the light thrown from the screen. It was about 11.00 p.m. N pretended to stay asleep as he feared being hurt. At the time he still had his jeans on. The fly of the jeans was unzipped and his penis was exposed. N felt weak from the alcohol. He tried to move a couple of times and get up but was held back. The acts by the applicant on N continued for about 20 minutes. While the applicant was performing the acts he was lying on the bed next to N. The pornographic video was playing. T remained passed out in his seat.

N gave evidence at the trial and described the aforesaid events. He said that when the applicant performed the acts the applicant tried to kiss him on the mouth but he, N, clenched his teeth. N gave evidence that while the applicant was trying to masturbate and kiss him the applicant said: "Do you like it like that? Do you like this [N]?"

T gave evidence at trial essentially corroborating the evidence of N up until the point where he passed out in the caravan. T gave evidence that at one point he came to and saw the head of the applicant moving up and down over the crotch area of N. He said N was lying on the bed at the time. T said that N's belt buckle was undone and his trousers were open. He said that N was trying to struggle, to get away and to stop the applicant. T gave evidence that he heard N say "Stop it" and then say "Come on [T], let's go." At that point T said he passed out again.

N gave evidence that he asked the applicant to roll him a cigarette, at which point the applicant started to masturbate N. N said that then the applicant stood up, did up the fly of his trousers, fastened his belt and turned the light on. The applicant then rolled N a cigarette. N said he got up then, pulled his fly up and did up his belt buckle, next, he picked up the bottle of bourbon and a couple of stubbies of beer. T said N grabbed him by the arm, pulled him up and said "We've got to go." The boys left within ten minutes of N getting up.

The applicant and the two boys left the caravan and went to the applicant's car. The applicant then drove the two boys and dropped them off close by N's home. N said that after T had alighted from the car, the applicant said to him inside the vehicle "Don't tell no-one about this. If you want, I can make it a weekly thing." N gave evidence that the applicant offered to pay him $50 per week and to give him a mobile telephone. As N and T walked to N's house, N told T that the applicant had molested him. T said he knew.

N's father, P, was woken when the two boys returned. N was crying. He told his father that the applicant had molested him and subsequently the police were contacted, shortly after midnight.

In the early hours of Sunday 30 July 2000 N and T each made a statement to the police. N also gave to the police a bottle of bourbon, two beer stubbies and a bottle of Coca Cola.

On the night of Monday 31 July 2000, P went with another man to the applicant's caravan. P stabbed the applicant with a knife in the left arm, the left hand and in the chest. P gave evidence as to these matters and that he was later charged by the police as a result. The injuries apparently required the applicant to be hospitalised but there was no medical evidence as to the injuries inflicted. For the purposes of the plea the trial judge was informed that the applicant required 45 stitches as a result of the injuries.

On Wednesday 2 August 2000 the applicant accompanied the police investigating the complaints to the local police station, where he was interviewed. The record of interview lasted just on one hour. The interview was recorded and transcribed and formed part of the evidence before the jury.

In the record of interview the applicant denied the allegations of N and T. He denied committing any sexual offences. The applicant said in the record of interview that he had known the two boys a short time, about three weeks. He said they came to his caravan at about 5.30 p.m. on Saturday 29 July 2000 and asked for some cannabis. The applicant said he told them that he did not have any. The applicant said that during this visit T smoked some cannabis through a pipe. He said in the record of interview that the boys returned at about 8.00 p.m. the same evening and asked for cannabis again. He said he told them that he did not have any. The applicant said in the record of interview that he drove the two boys into Rushworth and dropped them off. He denied going to the hotel and purchasing alcohol or giving the two boys any alcohol. The applicant said that N started to play with the TV and video remote control and that he, the applicant, took the control away because there was a pornographic video in the video player. The applicant said that he had some beer and a bottle of bourbon that he bought from the hotel earlier on the same Saturday night about 8.00 p.m. He said he bought the bourbon for his friends, Lenny Prosser and Shirley Johnson, as they were coming around to visit him. They did not come but he saw them on the Sunday morning at their place. He said he left the bottle of bourbon behind on his fridge and it later was missing. The applicant said that it remained untouched in his caravan until it was stolen on 1 August 2000.

Other evidence was given by neighbours of the applicant as to his whereabouts during 29 July 2000 and the incident when he was stabbed by P. Evidence was given by Sammy Howard, a friend of the applicant and fellow resident of the caravan park. He knew the complainant from seeing him around the caravan park on occasions. Howard had also seen T once before the day of the incident at the caravan park. He said that on 29 July 2000 the applicant came over to his caravan at about 5.00 p.m. and they had a couple of beers. Howard said that the applicant left about 7.00 p.m. or 7.30 p.m. and it would have been dark. Howard said the applicant told him he was having a couple of friends over but did not identify the friends. Howard said that he heard the voice of N near the caravan of the applicant at about 9.00 p.m. that night. He did not hear the applicant go out that night in his vehicle.

Evidence was led for the Crown by Leonard Alexander Prosser, the friend of the applicant who was staying with his defacto partner, Shirley Johnson, at a caravan park at Tatura. On 29 July 2000 the applicant had lunch with them at their caravan park. Prosser said that he told the applicant that they were leaving the next day and the applicant offered assistance in packing up. Prosser said the applicant left on 29 July about 4.15 p.m. Prosser said there was no mention during the day on 29 July that Prosser and his partner would go to visit the applicant that night. He said they had arranged to go to his sister's that night. Prosser also said that he was not a drinker save to have a social drink sometimes. He said he was unable to drink due to his medication. He gave evidence that he had a drink of bourbon with the applicant one Saturday night at the hotel at Rushworth when they went there for dinner. It was before Saturday 29 July. Evidence was also given by Prosser's defacto partner, Shirley Johnson. She said that the applicant came over to their place on Saturday 29 July and left at 4.15 p.m. She said that she and Prosser arranged to go out that evening. She said they told the applicant they were going to see Prosser's sister. Johnson said that she had never drunk Jack Daniels bourbon and Coke.

A statement to the police by Sandra May Voisey was tendered by the Crown without objection. She stated that she was a joint owner of the Rushworth Hotel. She stated that she recalled a regular customer named "John" attending the bottle shop and purchasing some items paid for by way of EFTPOS transactions on 29 July 2000. The receipt was produced and traced to the bank account of the applicant. The defence admitted at trial that the EFTPOS receipt was for a total purchase of $78.50 at the hotel at 8.03 p.m. In her statement Voisey said that a bottle of bourbon would sell for about $33, a slab of beer for about $31, a bottle of Coke for about $3.50 and cigarettes for $11.90.

The applicant applied to amend the grounds of appeal by adding four further grounds. For the purposes of the argument, the proposed grounds were treated and considered as if they were included in the grounds of appeal. We postponed our ruling on the application to amend until we had considered the proposed grounds.

The first ground, being the original ground of appeal, was that in all the circumstances the verdict was unsafe and unsatisfactory. The ground was confined to Count 3, taking part in an act of sexual penetration with a child aged between ten and 16. The verdict was challenged on the basis that the evidence in support of penetration was insufficient to sustain a finding beyond reasonable doubt.

The evidence-in-chief of N in relation to penetration was, as follows:

"[N], how many times did the accused at the back of the court put his mouth on your penis?---Once or twice. Did your penis go into his mouth?---I don't really know. Probably a little bit. I don't know really, to be quite honest. But he - I could feel it on there, put it that way. You could feel his mouth on your penis?---Yes. Was it inside his mouth or not?---Yes, I think so."

The complainant's evidence in cross-examination was:

"What do you say happened then?---I say I woke up and found that person in the background sucking on my dick. Now, are you sure about that?---Positive. Couldn't be mistaken?---No way."

Later in cross-examination the complainant's evidence was repeated:

"When have you woken up?---I woke up when he was sucking on my dick. What's happened then? What's happened then?---How do you mean? Do you want me to explain what happened to me or what? Yes?---Right. Why didn't you say that?---Well, what happened was, he was sucking on my dick ... ."

In my opinion, when viewed as a whole, N's evidence was sufficient to justify the verdict. In so far as there may have been doubt or equivocation in the complainant's evidence-in-chief, that was removed entirely by the answers he gave during cross-examination. Furthermore, T gave evidence that at one point he saw the applicant's head moving up and down over the crotch area of N. In my view it was plainly open to the jury to be satisfied beyond reasonable doubt in reaching their verdict on count 3. I do not consider that there is any basis as required by the authorities[1] to regard the verdict as unsafe and unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence.[2]

The remaining grounds of appeal were the proposed grounds, but for convenience, treated as substantive grounds.

The second ground was that the learned trial judge erred in leaving to the jury certain lies as being capable of demonstrating a consciousness of guilt on the part of the applicant, or alternatively if those lies were capable of founding a consciousness of guilt, the directions were inadequate. The three lies alleged were first, the denial of the applicant that he attended the hotel with the complainant and T; secondly, the assertion of the applicant that he purchased a bottle of bourbon for visitors who were going to come around; and thirdly, the assertion of the applicant that Lenny Prosser and Shirley Johnson were going to come around as they were leaving the next day.

The focus of the challenge of the applicant was that the trial judge failed to direct the jury that it was necessary that they be satisfied beyond reasonable doubt that the lies were deliberate and could be characterised as admissions against interest. In this respect the submissions for the applicant were misconceived in the light of the requirements of Edwards v. R.[3] and the position as clarified by Callaway, J.A. in R. v. Kotzmann.[4] There his Honour stated:

"In Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 Deane, Dawson and Gaudron, J.J., applied the reasoning in Shepherd's case to lies evincing a consciousness of guilt. Their Honours said at 210: Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt. [Footnote omitted.]

(a) there is a good deal of evidence, apart from the lie, implicating the accused, but it is not sufficient on its own to establish his guilt beyond reasonable doubt; (b) applying the judge's directions about the lie, we think it is more likely than not that the accused did tell it out of a consciousness of guilt of this offence and not for some other reason but, if that were the only issue in the case, we could not be sure; but (c) taking all the evidence together (`strands in a cable') we are satisfied to the criminal standard. See, for example, R. v. Zheng (1995) 83 A. Crim. R. 572 at 574 and R. v. Renzella [1997] 2 V.R. 88 at 92, but compare R. v. Laz [1998] 1 V.R. 453 at 468. It has to be remembered that such a lie is simply an implied admission. It can form part of an accumulation of detail like any other admission."

The observations of the Chief Justice and Brooking, J.A. in R. v. Camilleri are also relevant.[5]

In so far as the leaving of the three lies to the jury was challenged on the basis that the jury was required to be satisfied beyond reasonable doubt, such challenge was misconceived. Kotzmann and Camilleri make the matter plain. In any event, in the course of his charge the learned trial judge specifically directed the jury that they were required to be satisfied of consciousness of guilt beyond reasonable doubt. His Honour appears, therefore, to have taken the precaution, as trial judges sometimes do, of directing the jury of the need to be satisfied beyond reasonable doubt notwithstanding the principles stated in the authorities. That is often done by trial judges out of an abundance of caution.

It was further submitted for the applicant that, in any event, the alleged lies were not material or could not be said to display a consciousness of guilt. In my view the lies were clearly material as they may be viewed as an attempt to counter the suggestion that the applicant planned to get the two boys drunk. It was also submitted that an inference could not be properly drawn that the statements were in fact lies. The submission was difficult to support as, on their face, the three lies were matters stated by the applicant to the police but were inconsistent with evidence of other witnesses. There was also complaint on behalf of the applicant that the direction of the learned trial judge was inadequate as there was no listing of possible reasons why the alleged lies may have been told by the applicant. The possibility of being implicated in under age drinking was raised in this court. The learned trial judge referred the jury to the position of the Crown, namely, that the applicant was aware that he should not truthfully answer questions "which might connect the boys with the liquor purchase, and in particular whether they had all gone down to the hotel together when he purchased the alcohol." Despite the statement by his Honour, it might be said that the matter of under age drinking was not raised below with respect to an explanation for the lies. In any event, his Honour was not asked to direct about that or any other possible explanation for the lies. Moreover, the learned trial judge emphasised, in the course of his charge, that the jury must be satisfied that the only reasonable explanation for the telling of the three lies by the applicant was his consciousness of guilt of the crime and not because of some other reason. Furthermore, with respect to this ground, I observe that no objection whatsoever was taken by the defence at trial of the putting of the three lies to the jury as showing a consciousness of guilt or the manner in which the learned trial judge directed the jury on the subject. I am of the view that it was appropriate for the learned trial judge to leave the three lies to the jury as demonstrating a consciousness of guilt and, further, that the directions of the learned trial judge were sufficient.

There was also a complaint that the learned trial judge directed the jury upon consciousness of guilt in such a way that the jury could treat alleged lies of the applicant, other than the three identified lies, as capable of establishing guilt. Again, no objection was taken below. It was submitted that when the learned trial judge referred to the position of the Crown, namely, that the applicant knew he should not truthfully answer questions that might connect the two boys with the liquor purchase and whether they had gone to the hotel with the applicant when he purchased the alcohol, it may have caused the jury to form a view about lies other than the three lies specifically alleged with respect to consciousness of guilt. Nevertheless, his Honour made it clear that the prosecution were relying only on the three lies and distinguished in his charge between lies evincing a consciousness of guilt and lies going only to credit.

In my view the charge of the trial judge does not reveal any error as submitted and I consider, therefore, that ground two is not made out.

The third ground of the application was that the trial judge erred in not giving any directions about two other lies: first, the assertion of the applicant that the bottle of bourbon remained untouched until 1 August 2000, when it was stolen; and, secondly, the denial of the applicant that he made arrangements for the two boys to return to his caravan on the evening of 29 July.

These lies were not relied upon by the prosecution as demonstrating a consciousness of guilt. Accordingly, they were not the subject of any direction as to consciousness of guilt by the trial judge but his Honour was careful in the charge to identify the only lies that were relied on as evincing a consciousness of guilt and to distinguish them from lies going only to credit. In my view this was not a case where there was a risk that the jury would nevertheless use other lies as admissions against interest.[6]

Ultimately, these matters only went to the credit of the applicant. The learned trial judge sufficiently guarded against misuse of the alleged lies by way of an Edwards direction and the additional remarks his Honour made. In any event, once again, I observe that no objection was taken in relation to these matters at trial or exception stated at the completion of the judge's charge. I do not consider that the ground is made out.

The fourth ground relied upon was that on two occasions the learned trial judge erred in misdescribing an item of evidence in the charge to the jury. On the first occasion the judge said: "[N] appeared to say that he and [T] went around to find out if the party was still on that night. The accused said it wasn't but an arrangement was made for them to go back later to have a few drinks." In this respect, the alleged misstatement involved a misreading of the charge. The learned trial judge accurately summarised the evidence of the complainant. On the second occasion the trial judge said to the jury in the charge: "The accused thought the boys came over at 8.00, they asked for dope. The accused said he had none ... They left after about half an hour and the accused said he drove them back to the IGA store." There was criticism that the learned trial judge did not accurately summarise the evidence as to the time of arrival of the two boys. Emphasis was placed on some answers of the applicant in the record of interview that put their time of arrival closer to 9.00 p.m. It was submitted that the answers of the applicant were supported by the evidence of Sammy Howard who said he heard the complainant's voice about 9.00 p.m. Hence, it was argued, the trial judge in his charge did not do justice to the totality of the evidence and, in particular, the record of interview. It was argued that the jury may have concluded that the accused told another lie about the boys' time of arrival. Thus, the argument went, the applicant was prejudiced because of the alleged discordance with the evidence of Howard. In my view the suggested discordance was not of any significance. Doubtless, that is why no exception was taken below. In any event, the jury heard the whole of the evidence and, in my view, is unlikely to have made a mistake in this respect. In my view the fourth ground is not made out.

The fifth ground was that the trial judge erred in not informing the jury adequately or at all of the dangers of relying on voice identification evidence. The testimony of Sammy Howard was the relevant evidence. It was submitted that a direction ought have been given to the jury as to the use of the evidence of Howard that he heard the voice of N. Various authorities concerned with voice identification were cited.[7] However, the authorities are concerned with cases where identity of the accused is in issue. In this case there was no issue as to the identity of the complainant. The evidence of both the complainant and his friend, T, was that they were present at the applicant's caravan. In my view, therefore, the ground is not made out.

As observed, each of the grounds other than ground one consisted of the proposed grounds. It follows from the views I have expressed that I do not consider that the proposed grounds had merit. Accordingly, I consider that the application for leave to amend should be refused. In relation to the original ground of appeal, for the reasons stated, I consider it is not made out. I consider that that application, too, should be refused.

[1] See M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493 - 495; Jones v. R. (1997) 191 C.L.R. 439 at 450 - 452; MFA v. R. (2002) 77 A.L.J.R. 139 at [25] - [26].

[2] Crimes Act 1958, s.568(1).

[6] Cf. Zoneff v. R. (2000) 200 C.L.R. 234 at [24].

[7] e.g. R. v. Callaghan [2001] VSCA 209; (2001) 4 V.R. 79; Bulejcik v. R. (1996) 185 C.L.R. 375.

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