R v Dove [1999] VSCA 80

Court of Appeal (Vic)|1999-05-20|Before: BROOKING, BATT and CHERNOV, JJ.A.

The applicant pursuant to notices given on 22 December 1998 seeks leave to appeal against conviction and sentence.

The notice touching conviction set out eight grounds, but all except two were abandoned, namely the first: that the judge erred in admitting evidence of complaint to S and M; and the eighth: that the verdict of guilty of indecent assault was unsafe and unsatisfactory. The seventh ground, that the verdict of guilty of indecent assault was inconsistent with the verdicts of not guilty of rape and not guilty of penetration of a person of impaired mental functioning, was not argued independently but was relied on as a particular of ground 8. The latter ground was put at the forefront of the argument for the applicant and so I take it first.

First, the complainant agreed in cross-examination that at the committal hearing she had agreed that she had said that what happened in the bushes was that the applicant tried to have sex with her; that if a man pulled out his penis and rubbed it and made white stuff come out that would be trying to have sex with her; that that was what she meant when she said that he tried to have sex with her; that that was what he had done; and that when she told S what had happened she told him that the applicant had tried to have sex with her. She further agreed in cross-examination that she had been telling the truth; that that was what had happened between her and the applicant; and that was all that had happened.

Secondly, having agreed that she had a top and a bra on, she answered the question "How did he kiss your breast if you had a top and a bra on?" by saying "He lifted it up".

In support of ground 8 it was submitted that there were two real issues of fact for the jury to decide: penetration in relation to counts 1 and 2, and indecent assault in the form, put by the Crown and his Honour, of kissing the breast in relation to counts 3 and 4; that, by reason of the kissing of the breast being said to have occurred while the applicant was penetrating the complainant's vagina, those two issues were so closely intertwined that the verdicts of not guilty on counts 1 and 2 did not allow of a verdict of guilty on count 3. By way of elaboration it was submitted that the credibility of the complainant was critical to the guilty verdict (as may be accepted); that the jury must have rejected her evidence of penetration; that there was nothing in her evidence or the surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to count 3 than in relation to counts 1 and 2, strong reliance being placed on the passages in Jones v The Queen (1997) 191 CLR 439 at 453 and 455; and that her credibility was not buttressed in relation to count 3 by direct evidence of complaint to S or M of any kissing of the breast. It followed, the submission concluded, that the conviction must be set aside as unsafe and unsatisfactory because, to apply the test laid down in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and confirmed in Jones, it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty on count 3.

I do not accept these submissions. Before turning to the specific matters raised, two observations should be made. First, for good reason, courts are reluctant to accept submissions that verdicts are inconsistent in the sense that no reasonable jury applying their mind properly to the facts could have arrived at the conclusion. Courts will ordinarily accept such submissions only where the different verdicts represent an affront to logic and commonsense: MacKenzie v The Queen (1996) 190 CLR 348 at 366-368. Here, in my view, the verdicts are not inconsistent, there being open a proper way of reconciling them, as I discuss later. Secondly, his Honour had given the jury a full, if standard, direction as to the separate trial and separate consideration of each count.

Now, in the light of his Honour's charge, I do not accept that the two factual issues of penetration and indecent assault were inextricably intertwined. Nor do I accept that the jury must have rejected the complainant's evidence of penetration. Rather, as it seems to me, the jury must have rejected as fanciful the applicant's version, particularly in the light of his poor performance under cross-examination, for otherwise they would have acquitted on count 3 also, and they may then have reasoned as follows: We accept the complainant's evidence. We were particularly impressed by her accurate observation and recall of facts, such as the type and colour of the applicant's clothes, and of simple actions and their attendant circumstances, such as walking down to and up from the creek. But we bear in mind her impaired mental functioning, the apparent adoption by her in cross-examination of a meaning of "having sex" which may not involve penetration, and the inconclusive (not, it should be noted, negative) evidence as to whether a sexual assault, i.e. penetration, and indeed ejaculation internally, occurred. Although we think that penetration occurred, as the complainant said in her VATE and in re-examination, whether or not with ejaculation internally, we have some doubt, and cannot be satisfied of it beyond reasonable doubt. The applicant may merely have pulled her down and ejaculated without penetrating her. But, even if that be so, we are quite satisfied of the occurrence of the indecent assault, particularly when, without hesitation, she gave in cross-examination exactly the answer to the suggested difficulty of how the applicant kissed her breast when she had a top and bra on that one would expect if that occurred. Further, the applicant's own evidence, we think, in truth corroborates or supports her evidence of sexual activity. The evidence of complaint to S and M buttresses the complainant's evidence, even though it does not specifically refer to kissing of the breast.

Such reasoning would, in my view, have been proper. I do not accept the response for the applicant that the possibility of such reasoning is speculative or extreme. It seems to me to be real. It is for the applicant to exclude it if the decision of the duly constituted tribunal of fact (the jury) is to be set aside as unsafe or unreasonable. That the jury acted cautiously and properly is suggested by two questions that they asked about the indecent assault alleged. It follows, in my view, from what I have said that the passages from Jones relied on for the applicant are not apposite here. Compare R v KET [1998] VSCA 73 at [26] to [29] and the cases there cited. The verdicts on counts 1 and 2 do not in the circumstances of this case mean that the complainant's credit was destroyed or damaged to a significant extent. The verdicts are not inconsistent: they do not affront logic or commonsense. The conviction on count 3 is not unsafe or unsatisfactory, in other words neither the first nor the third limb of s.568(1) of the Crimes Act 1958 is satisfied.

I turn now to ground 1. Save possibly in one minor respect, no argument was addressed in support of the ground as worded. That is, his Honour's ruling to admit the evidence of complaints to S and M was not impugned in written or oral submissions. Rather, under the rubric of this ground, different arguments about the complaints were mounted. It was accepted that his Honour had given an unexceptionable direction in general terms as to the use to which evidence of recent complaint might be put and an unexceptionable warning to scrutinize the complainant's evidence because of her impaired mental functioning. It was said, however, first, that the judge should have given a direction in accordance with Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 465 and Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 esp. at 448, to the effect that in evaluating the complainant's evidence about the indecent assault the jury should take into account that she had not complained of the indecent assault at the earliest reasonable opportunity. (Section 61(1)(b) of the Crimes Act would, however, have had to have been complied with.) Secondly, it was said that the evidence of complaint was not such that, within the words of R v. Saragozza [1984] VicRp 15; [1984] V.R. 187 at 191, "the consideration of commonsense or common experience" rendered it admissible in relation to count 3. Alternatively, the jury should have had the lack of direct complaint of indecent assault identified by his Honour, it was submitted.

There are a number of answers to these arguments. I pass by the fact that they are not covered by the ground in order to deal with matters of more substance. No Kilby direction nor any identification of the lack of direct complaint of indecent assault was sought and no exception to non-direction in those respects was taken. Nor was the evidence objected to on the basis now argued, but only on the basis of lack of recency and, perhaps, of spontaneity. These considerations show or at least suggest that there is nothing in the arguments.

There is indeed, as it seems to me, a fallacy underlying each of them. This is that a complaint must be of the particular sexual offence in question. In Saragozza it was held that, whilst a grievance or accusation must be expressed, it was unnecessary in a rape prosecution that it be a complaint of rape. The Full Court there left open whether it must at least be of a sexual nature. Here, the complaints were clearly of that kind. Here, too, where the complaints were of rape, one would not expect an indecent assault committed during the alleged rape to be specifically mentioned: the greater would include the lesser. In any event, as Saragozza shows, specificity is not required. Importantly, the criterion for admissibility there stated at 199 was, I consider, satisfied in relation to the indecent assault alleged here, that criterion being consistency in behaviour on the part of the complainant considered from the viewpoint of commonsense or common experience. The complaints were clearly admissible in relation to counts 1 and 2, and subsequent acquittal on those counts cannot enable their admissibility to be reopened. But, for the reasons I have given, I consider them admissible in relation to count 3 itself.

It follows from this that, consistently with his Honour's ruling (with which I agree), a complaint relevant to count 3 was made as soon as could reasonably be expected in the circumstances: R v. Freeman [1980] V.R.1 at 5 and 8; R v. Young [1998] 1 V.R. 402 at 424-5. There is, therefore, no question of delay and Kilby is irrelevant. (I should second a submission for the respondent that the VATE recorded at about midday on 13 November 1997 contained in any event a specific complaint of indecent assault and was, in the circumstances, still made at the first reasonable opportunity. I do not need to consider the correctness of that submission. If it is correct that the VATE was, not unnaturally, not referred to as such a complaint by his Honour in his charge would be an omission favourable to the applicant). Finally, there was no need to inform the jury that there was a lack of direct complaint of indecent assault for, as I have said, specificity is not required.

I should in fairness say that the arguments deployed under the rubric of ground 1 were put in part at least to support the argument on ground 8. It was said that there was no need to go to them because all concerned at the trial had implicitly agreed that the two factual issues were so bound up that they must both be decided the same way, and that this application should be determined on that basis; but that, if the issues were to be disentangled, the arguments applied. I have already dealt with the contention underlying ground 8. But on the present point I add that I do not consider the arguments under ground 1 sound, so that they do not support the argument on ground 8.

In considering the application touching conviction I have confined myself to the indecent assault propounded by the prosecutor below and left by his Honour to the jury. I record that the evidence, including that of the applicant, disclosed two other indecent assaults. But it is unnecessary to spell them out or consider them, for the verdict could not be upheld on the basis of an indecent assault not left to the jury.

I turn to the application relating to sentence. The grounds stated in the notice of application assert that the judge failed to give sufficient weight to personal circumstances of the applicant, placed insufficient weight upon his prospects of rehabilitation, and placed too much weight upon specific and general deterrence and that in all the circumstances the sentence imposed is manifestly excessive. Those grounds were argued together and with commendable brevity. It was accepted for the applicant that specific and general deterrence for persons in positions of trust, such as the applicant, should assume significant importance. But it was contended that the applicant should have been allowed a significant discount given the circumstances and in particular, first, his contribution over a long time in the field of care for the disabled at low pay and not from base motives, and secondly, the fact that according to the applicant his offence occurred when he was weary or worn out in part by that contribution. Reliance was placed on the evidence of M and Dr Murray. As a result the sentence was, it was contended, manifestly excessive.

I have considered that evidence and the references tendered on the plea. I would in no way depreciate the value of the contribution made by carers of disabled persons, the problems and frustrations they face, and the low pecuniary rewards our society offers them. But all this was put cogently to his Honour, along with the applicant's parlous personal circumstances, and was clearly taken into account by him. Further, those considerations cannot be allowed to obscure the nature and circumstances of the offence, committed in breach of trust, against a person in the applicant's care and described by his Honour in his careful sentencing remarks as having "childlike trust in the applicant". In my view, the sentence was clearly within the range open to his Honour in the circumstances disclosed before him.

For the reasons I have given, I would dismiss both applications.

The order of the Court is that the application for leave to appeal against conviction and the application for leave for appeal against sentence are dismissed.

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