R v Fetherston [2006] VSCA 278

[6]

4 In each of counts 2 to 5 the acts in question were alleged to have occurred

between 15 November 2003 and 12 February 2004. The acts referred to in counts 2 and 3 were alleged to have occurred in a carriage of Puffing Billy in which the applicant and the complainant were sleeping overnight. Those mentioned in counts 4 and 5 were alleged to have occurred at a motel in Glen Waverley. In counts 6 and 7, the acts were alleged to have occurred on or about 9 December 2003, at a Bed and Breakfast in Belgrave.

5 The applicant was arraigned and pleaded not guilty to each count.

6 On 2 June 2005, the jury returned verdicts of guilty on counts 1, 2, 6 and 7. It returned verdicts of not guilty on counts 3, 4 and 5. The applicant was remanded for sentencing and the matter adjourned for that purpose.

7 On 30 August 2005, the plea in mitigation was heard. The matter was then adjourned to 13 September 2005 for sentence.

8 On 13 September 2005 the applicant was sentenced to three years' imprisonment on count 1, the abduction charge. He was sentenced to 12 months' imprisonment on each of counts 2, 6 and 7. In each instance, eight months of the term of imprisonment was ordered to be served cumulatively upon count 1. This gave a total effective sentence of five years' imprisonment. A non-parole period of three years was fixed. At that time the applicant had been in prison for 104 days and the appropriate declaration was made. A direction was also made that he had been sentenced for registrable offences under the Sex Offenders Registration Act 2004. A declaration was made that he was sentenced as a serious sexual offender pursuant to section 6F of the Sentencing Act 1991. He was also ordered to provide a forensic sample pursuant to section 464 ZF (2) Crimes Act 1958.

9 By notice dated 27 September 2005 the applicant sought leave to appeal against conviction and sentence. On 18 March 2006 he filed a Full Statement of Grounds of Appeal against conviction setting out six grounds of appeal. Ground 2 is no longer relied upon. The remaining grounds of appeal are as follows:

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10 I will consider the grounds in the order in which they were raised by Counsel for the applicant.

Ground 3(a)-(d): directions on evidence of uncharged acts.

11 The complainant gave evidence that while he lived at the Belgrave house, the applicant had "sucked [his] penis... about 40 times" and that he did the same to the applicant on about 30 of those occasions. Those acts did not include the acts the subject of counts 2 to 7. The latter acts were alleged to have occurred at other locations.

12 Grounds 3 (a) and (b) raise issues as to the adequacy of the directions given relating to the use of this evidence as propensity evidence.

13 Ground 3(a) alleges that error occurred because the learned trial judge did not give a propensity warning in her initial directions and further directions in the body of the charge. While she gave a "separate consideration of the counts" direction and directions about the use that might be made of the evidence of uncharged acts she did not include a propensity warning as such in the body of the charge. Counsel submits that in failing to do so the learned trial judge erred. Reliance is placed on R v Grech[1] and R v BAH (No 2).[2] In those cases it was held that the trial judge should, in a case like the present, direct the jury that it must not reason that, because the applicant engaged in sexual conduct with the complainant, he was the kind of person who was likely to have done so on the occasions charged.[3]

14 The prosecution submits that a propensity warning was in fact given in further directions to the jury and that this remedied whatever deficiency there may have been in the original directions. It is also submitted that the sufficiency of that warning is borne out by the fact that no suggestion was made by counsel for the applicant at the trial that the directions given were inadequate.

15 The applicant takes up the adequacy of that warning in Ground 3(b). It is argued that the redirection, given in response to a jury question a day into its deliberations, differed from earlier directions in that a propensity warning had now been included but it failed to explain to the jury that the redirection did so differ.

16 What was said in the redirections needs to be considered in the context of what occurred at the trial.

17 After giving directions as to prior inconsistent statements, the learned trial judge turned to the evidence of sexual activity between the applicant and the complainant which was not the subject of charges before them - the evidence of the 30 and 40 occasions. Her Honour explained to the jury that admitting that evidence was an exception to the normal rule which would exclude such evidence. She explained that there were two reasons for receiving the evidence. The first was that if the jury accepted that evidence, the jury could use it to determine whether there was a sexual relationship in existence between the applicant and the complainant at the relevant time. She went on to say that if the jury was satisfied that there was such a relationship in existence then the jury could use that in deciding whether to accept the allegations of the complainant which were the subject of charges. She went on to say that the law recognised what is sometimes referred to as "the guilty passion of an adult for a child". Her Honour stated if the jury found that to be established by the evidence, the jury could use it as capable of making more credible the complainant's evidence about the particular sexual activity which he alleged on the particular occasions he had alleged. Her Honour went on to give a second reason for receiving this evidence - namely, to place the evidence of the alleged offences in a more complete and realistic context. She stated that if the jury accepted the evidence then the jury may be better placed to appreciate the significance of what might otherwise be isolated acts occurring for no particular reason. She then emphasised to the jury that the evidence could be used only for those purposes and that in the long-run, to convict, the jury had to be satisfied of the guilt of the accused of the actual charges brought. She warned them not to substitute evidence of some other instance for one that was charged. She then repeated the explanation for the law allowing the evidence to be received and repeated the direction that the jury needed to be careful not to substitute the evidence of uncharged acts for the evidence presented directly relevant to the charges on the presentment.

18 Thus at this point, her Honour had described two permitted uses of the evidence and told the jury it could not be used for any other purpose. She had also warned the jury not to substitute the evidence for evidence directly relevant to the charges. No criticism has been made of those aspects of the charge in this appeal.

19 Shortly after these directions (and directions about complaints) the jury left the court and counsel were asked if there were any exceptions. Counsel for the applicant expressed an exception in the following terms

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23 Her Honour responded saying "that's fairly obvious" but she was happy to "throw that in". She asked the learned prosecutor if he had any problems with that and he said he did not. There was discussion then of another matter, following which the jury returned at 10.16 am.

24 The learned trial judge immediately took up the request from the jury for an elaboration of her reference to guilty passion of an adult for a child being admissible. She did so first by reminding the jury of the context of the uncharged acts and what they were - acts not subject of anything on the presentment. She then repeated that that evidence was admissible as an exception to the rule excluding such evidence. She repeated the reasons previously given for the exception. She emphasised the importance of remembering that the first question for the jury was whether it accepted the evidence. She also emphasised that just because it was admissible did not mean that what was said to have occurred did occur. The jury had to decide whether they did occur. She then stated that, if the jury accepted the evidence, it could use it to determine whether there was a sexual relationship between the accused and the complainant. She stated again that they could use that finding if they were so satisfied to assist them in deciding whether to accept the allegations of the complainant which were dealt with in the presentment - the specific charges of sexual penetration on Puffing Billy, at the motel and the Bed-and-Breakfast. She stated that the law recognises "what is sometimes termed as the guilty passion of an adult for a child". She said that if the jury found that to be established by the evidence, the jury could use it as being capable of making more credible the evidence of the complainant that the sexual activity which he alleged did take place on the particular occasion identified in the presentment. She also repeated the second reason - placing the evidence relating to the offences in a complete and realistic context. Again she emphasised that they first had to decide whether they accepted that evidence before using it as part of the context. She then stated:

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26 It is clear from the transcript that at no stage did counsel for the accused seek a propensity warning such as was given by the learned trial judge in the passage just quoted. Further, no exception was taken at any stage to the directions given about the appropriate use of the evidence of the uncharged acts. Her Honour left the bench at 10.32 am. She returned to receive the jury verdict at 3.21 pm that day.

27 Whatever danger there was of the evidence of uncharged acts being used for a general propensity purpose and adversely to the accused, her Honour plainly addressed it before the jury had completed its deliberations. It is true that the jury had retired to consider its verdict and was deliberating but it was plainly given in time because the question that gave rise to the warning showed that the jury was considering the evidence of the uncharged acts at that time. The warning was adequate for the purpose of ensuring that the evidence was not used improperly. Accordingly, grounds 3(a) and 3(b) are not made out.

28 The errors alleged in grounds 3(c) and 3(d) are that the directions implied that the uncharged acts need not proved to the criminal standard and that her Honour should have directed the jury that before the evidence of uncharged acts could be used against the applicant, the jury had to be satisfied beyond reasonable doubt of that evidence.

29 In the relevant parts of her charge the learned trial judge instructed the jury that it had to be "satisfied" that the uncharged acts occurred before they could be used in the manner described above. She did not, however, expressly refer to a standard of proof that might be required before the jury could accept the evidence of the uncharged acts for use against the applicant.

30 Counsel for the applicant submits that such a direction was required because no distinction could realistically been drawn between the charged acts and the uncharged acts apart from an attempt to identify some specific occasions in the case of the charged acts. Counsel submits that in reality the evidence of the uncharged acts was inseparable from the evidence of the charged acts. Counsel also argues that realistically if the jury had a doubt about the generalised allegations of uncharged acts it could not convict the applicant of any of the charged allegations.

31 In support of this argument, counsel relies on the following passage in the reasons for judgment in R v FJB:[4]

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40 The primary focus and emphasis of this section of the charge was on the allegations raised by defence counsel about the denials and the failure to complain for some time pointing to inconsistency of conduct which counsel argued was damaging to the credibility of the complainant. The argument for the accused raised fairly and squarely the question of whether this conduct was inconsistent with the happening of the offence. A direction on recent complaint was not required because, notwithstanding her Honour's introductory remarks, the Crown was not seeking to rely upon the complaints to show consistency of conduct. The use of the evidence relating to complaints was expressly limited to the testing of the complainant's credibility by examining the question of his inconsistency. The question of consistency only arose if the primary inconsistency argument was unsuccessful. At no time was the jury told it could use the evidence of complaint to bolster the credibility of the complainant.

41 As to the second criticism, again, considered in isolation, the quoted opening passage leaves open the possibility of using the fact of complaint to prove the facts stated in the complaint - at least for those who might understand the reference to "self-serving and hearsay evidence". That possibility, however, was not expressly identified and the learned trial judge made it clear in the remainder of the directions, and her concluding remarks on the issues, that the evidence relating to the lack of, and delay in making, complaints was to be used only for the purpose of determining whether the complainant had acted in a manner inconsistent with someone who had been sexually abused.

42 The third criticism relates to the adequacy of the Kilby directions given about the relevance of the complaint history to the complainant's credibility. It is argued that they were inadequate and that they were swamped by the directions the judge gave to meet the requirement of s.61(1)(b) Crimes Act 1958 (Vic) that she inform the jury:

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The learned trial judge also made it clear later in the charge that it was critical to the Crown case that the Crown establish that the accused had the necessary intention at the time of the initial taking - the departure from the Edmistons and not "an hour later, a day later." It would follow that, if the jury took the view that the complainant had already taken himself away prior to the alleged taking or despite the actions of the applicant, the jury would bring in a verdict of not guilty. No express direction was required.

50 In any event, the argument relies upon a narrow and, in my view, incorrect interpretation of the expression "taking away". Counsel for the applicant submits that there was no taking away by the applicant because the complainant had already taken himself away from his parents and intended never to return to them. The argument proceeds on the basis that a child must be in the possession of the person having lawful charge at the time of the taking away. Section 56(1) Crimes Act, however, refers to a taking away "against the will of a person [here the parent] who has lawful charge of the child". Thus it does not require the child to be in the possession of the person having lawful charge.

51 The meaning of the expression "taking away" was discussed at the trial , in particular, in the course of an unsuccessful no case submission at the conclusion of the prosecution case. The learned trial judge was referred to two cases, the first of which is the more relevant - R v Mejac[9] and R v Stanton.[10]

52 R v Mejac was a case where a girl of 14, being pregnant to the prisoner, asked him to take her away from her parents saying that, if he didn't, she would go alone. He agreed and took her to Victoria as his wife. He made the arrangements for travelling and accommodation. He was charged with, inter alia, abduction. The offence in the Tasmanian Criminal Code was expressed in terms of taking away "out of the possession and against the will of her father or mother or other person having the lawful charge or care of her". In that matter Crisp J rejected the argument that it was necessary for the alleged abductor to have instigated the taking away. He commented:

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53 In the present case, the complainant was cross-examined about the circumstances of his departure from the Edmistons and the involvement of the applicant. He stated that the Edmistons wanted him to leave and go home but he did not want to go home because he thought he would get into big trouble and was concerned about that. He said he left the Edmistons because he knew the police were coming to look for him and it was getting too risky. He agreed that he could have gone home but didn't want to. He said he wanted to go but he was scared of getting into trouble and of getting locked up. He agreed it was his choice not to return home. He also agreed that he had nowhere to stay after he left the Edmistons' house and before he started living in Belgrave. He had no money and he just had the clothes that he was wearing. Critically, he agreed in cross-examination that he went along with Mr Fetherston because he was going to arrange alternative accommodation for him. Asked about the plan developed to pretend that he was Mr Fetherston's son, he denied that he came up with that plan but agreed that it was arrived at after discussions between the two of them. He agreed that he went with Mr Fetherston because he was using him as an alternative source of accommodation.

54 Thus it was clear that the complainant had no money and no accommodation and was in the position where he had to leave the Edmistons' house. It is true that, contrary to the wishes of his parents, he had previously formed the intention of leaving them and at the critical time did not want to return to them, but it was the applicant who provided him with the plan and the means of continuing to remain away from them. At the relevant time, his parents were in "lawful charge" and what occurred was contrary to their wishes. In those circumstances, the departure of the complainant with the applicant from the Edmistons involved a taking away by the applicant.

55 As noted above, in charging the jury, the learned trial judge expressed the question for the jury as being whether the acts of the applicant were an effective cause of the complainant accompanying the applicant to another place. This effectively and simply explained the concept of "taking away" for the purposes of the case.

56 The concept, "taking away", should be interpreted in this way because the offence is intended to protect children from others, particularly when they are at their most vulnerable - as here, having left home and having no money or accommodation. The potentially very wide scope of the offence that would otherwise flow from that construction is confined by the requirement that the accused have the necessary intention at the time of the taking away.

57 It follows that, in this case, the propositions that the prosecution had to prove were that, at the time of the departure from the Edmistons, the accused had the necessary intention and that he was an effective cause of the complainant accompanying him. Those issues were adequately addressed by her Honour in her charge.

58 The other issue raised in this context by the applicant is whether error arose because the learned trial judge did not direct the jury that it must be unanimous as to the act of taking away, the situation being one where the prosecution was relying upon more than one " taking away".

59 The prosecution case, however, was not put on the basis of more than one "taking away". It went to the jury on the basis that the taking away occurred when the applicant left with the complainant from the Edmistons' house with the necessary intention. In addition, at no time did the applicant through his then counsel seek to have an alternative left with the jury. This is understandable. There was nothing to be gained from such an approach. In fact it was likely to make conviction easier if the Crown had the option, for example, of going to the jury on the basis that it was the taking of the complainant to the Belgrave house that was the abduction; for as counsel for the applicant pointed out in argument, the jury could have had some doubts as to whether the earlier "taking" to Puffing Billy was done with the necessary intention having regard to the evidence of the limited extent of the first physical contact at the Puffing Billy - the touching of the complainant's hair.

60 Neither the Crown or the accused appear to have departed at the trial from the position that the taking, if it occurred, was constituted by taking the complainant from the Edmistons. In those circumstances it would have been inappropriate for the learned trial judge to give directions in the manner suggested. The original direction about unanimous verdicts sufficed.

Ground 6 - duplicity and uncertainty

61 The duplicity argument turns on the issue considered in Ground 5 - whether the case was put by the Crown to the jury involved more than one act of taking away. I refer to my comments on this issue under the previous ground. If the Crown had failed to satisfy the jury beyond reasonable doubt that the departure from the Edmistons constituted a taking away with the necessary intention, the Crown case would have failed. There was no duplicity or uncertainty in the verdict.

Ground 1 - verdict unsafe and unsatisfactory

62 For the applicant it was submitted that the matters listed in the statement of grounds resulted in deficiencies such that the verdict of guilty on each count was unsafe and unsatisfactory.

63 In my view, applying the relevant test, it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty Jones v The Queen.[13] A reasonable jury could properly have accepted the essence of the complainant's evidence notwithstanding the particular criticisms that were made. This appears to have been what occurred.

64 The acquittals on counts 4 and 5 are plainly explicable on the basis that, accepting the complainant's own evidence, evidence on which the Crown relied, it was not possible to demonstrate that the offence alleged did in fact occur at the time and place alleged in the presentment. In relation to count 3, also an acquittal, the complainant failed initially to mention the events in the course of giving a chronology of events. He later mentioned it in the course of giving evidence about other matters but in a way that was contradicted by the bulk of his evidence about what occurred at Puffing Billy. Her Honour also made a strong comment critical of the evidence given by the complainant on count 3. His evidence on the other counts did not suffer from such problems. For these reasons, the acquittals on counts 3, 4 and 5 cannot be directly transposed into a doubt on the other accounts. These and the other matters listed were matters which were used to challenge the credibility of the complainant generally. They were matters for the jury to consider but it cannot be demonstrated that the existence of those issues made the verdict of guilty unsafe and unsatisfactory.

65 The complainant's account was strongly supported by the facts that were common ground and other evidence.

66 It was not disputed that the applicant offered and provided accommodation assistance and his own company during the relevant period. What was in issue was his intention in doing so and whether the alleged sexual acts occurred. The Crown case on those issues was strongly supported by the undisputed evidence of relevant circumstances. This evidence, in combination, gave rise to a strong inference that the intention of the applicant in offering accommodation and assistance to the complainant was to engage in sexual activity with the complainant. I refer to:

• the age of the complainant;

• the fact that the applicant offered accommodation but did not in fact have accommodation to offer at that time;

• the length of the period with which he associated with the complainant in a very personal way;

• his agreeing to contribute approximately $200 to $250 a fortnight to the housekeeping;

• the secrecy he apparently maintained so far as his wife was concerned;

• the secrecy maintained with the people at Belgrave by the pretence of being the father of the complainant;

• his failure to make any contact with the complainant's parents to allay their fears even though he knew the complainant had ceased to communicate with them;

• the independent evidence that on a number of occasions he shared the bed of the complainant; and

• his physical and verbal affection towards the complainant in the company of others at Belgrave.

67 There was also evidence given by an independent witness, Robyn Licence that on one occasion she was in the bedroom at Belgrave with the complainant and the applicant and that the applicant had asked the complainant if he was going to sleep in the bed with him. Her evidence was that the complainant had said "no". She said that the applicant had responded more firmly "... no, I'm your father and you're sleeping in the bed with me". She also gave evidence that she had seen the applicant while embracing the complainant, rub his penis against the lower part of the complainant's body. The cross-examination on those matters was directed to casting doubt on the reliability of her observations and her memory and to suggesting that they were innocent events. At no time, however, was it put to her that the events to which she had referred did not happen.

68 The strong inference as to the applicant's intentions was not countered by any contradictory evidence because the applicant had not made a statement to the police and he did not give evidence at the trial.

69 In respect of this ground, the applicant also relies upon the argument already dealt with in relation to grounds 5 and 6. I refer to my above comments in relation to that argument. In relation to count 1, however, counsel for the applicant argues that the verdict was unsafe and unsatisfactory because there was a conflict within the evidence of the complainant about when the first sexual advance was made and that there was, therefore, no safe evidentiary basis upon which count 1 could rest. Counsel argues that the evidence was contradictory in that in his statement he said that it was two weeks after the move to Belgrave that the applicant first made a sexual advance towards him. However, he gave evidence that the first act of penetration occurred at Puffing Billy on the second night after leaving the Edmistons' house. It is said that it would not be safe to infer that the intention to engage in sexual penetration existed at the time of the taking away because of the inconsistency and because of the fact that, if the two week alternative were adopted, the purported act of taking away was so remote in time from the first act of penetration.

70 In my view, the argument is not supported by the statement and by what occurred in his cross-examination. In cross-examination, he first confirmed that his evidence was that something happened between himself and the accused on the second night on Puffing Billy at Belgrave. He was questioned about what he said in his statement. So far as relevant, he said that:

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71 The issue appears to have been left there and there does not appear to have been any cross-examination of the complainant in which it was put that this was inconsistent with his earlier evidence about "something happening" at Puffing Billy on the second night after leaving the house of the Edmistons. The passage relied on in the complainant's statement is open to the interpretation that two weeks elapsed in the Belgrave house before any sexual activity occurred between them at that location. That interpretation remained open on the evidence. Counsel for the applicant is not, therefore, in a position to demonstrate that the complainant's evidence was inconsistent.

72 Counsel for the prosecution also submits that the reference to the first "sexual advance" was not in fact inconsistent with the first sexual act having occurred on the

Puffing Billy. In that instance there was no advance, what occurred was that the applicant was alleged to have sucked the penis of the complainant while he was asleep. At no time in the complainant's evidence about that incident did he suggest that this was a sexual advance by the applicant. It was not preceded by any form of sexual advance. The cross-examiner, himself, described the two incidents differently.

73 As to the other issue raised, it may be said that, assuming the first sexual advance occurred two weeks later, it was not so remote as to make it unsafe to draw the conclusion that the taking away was motivated by a desire for sexual activity with the complainant.

74 For these reasons the applicant cannot demonstrate that the matters he raises render the verdict unsafe and unsatisfactory when they are viewed in the context of the evidence adduced and, as noted above, in the absence of evidence addressing the inferences arising from the conduct of the applicant.

75 The remaining matter relied upon was that it was not open on the complainant' s account to find the applicant guilty of the offence alleged in count 1 - the abduction offence. Reliance was here placed upon the issues raised on the no-case submission - issues with which I have already dealt.

Conclusion

76 For the foregoing reasons, the applicant has failed to substantiate the grounds of appeal he relies upon. The application should be dismissed.

R v Fetherston [2006] VSCA 278 - VSCA 2006 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties

Cases Cited (4)