R v G A E [2000] VSCA 18

R v G A E [2000] VSCA 18 - VSCA 2000 case summary — Zoe

[24]

I now turn to consider whether in addition to the evidence relating to the manse counts, the evidence pertaining to the Daylesford and Kyneton counts would also be admissible in relation to the P counts and vice versa. In my view, the Daylesford evidence would be relevant to the P counts. Just as in the case of the manse evidence, the evidence pertaining to the Daylesford counts would go towards establishing the applicant's modus operandi or the special way in which he gained access to young boys from parishioner families. In each case, he procured access to the boys and isolated them from their parents because of his position as Minister of their Church which gave him an elevated moral status in the eyes of those parishioners. In the case of P, for example, he obtained custody of the boy and his friend on a basis connected with his ministry, taking them to the screening of a film at a venue organised by a religious organisation and then back to the manse. This gave the appearance of a Minister looking after the welfare of his parishioners, but in fact it isolated the young boys from their parents for the real purpose of enabling the applicant to satisfy his sexual desires. He engaged in a like pattern of behaviour in respect of the two brothers in relation to the manse counts. Similarly, in relation to the Daylesford counts, he created the appearance that his conduct was part of his function as Minister of their Church, namely, keeping contact with parishioners and looking after the spiritual and general welfare of their children. In this way, he gained access to the two boys in their bedroom, away from their parents on the pretext that he would read them a story or otherwise establish an appropriate relationship with them. He thus gained access to them in circumstances which were not available to others. This alleged conduct in relation to the Kyneton count was the continuation of his earlier conduct with the two brothers and the same considerations apply to it as the other counts. Each of the episodes revealed a contrivance on the part of the applicant to gain access to the children away from their parents for the purpose of satisfying his sexual desires.

[49]

It is necessary to explain briefly, the context in which this issue arose. As I have mentioned at the outset, counts 1 to 12 allege sexual misconduct by the applicant with M in his Daylesford home during the period which is specified in the presentment as being between 2 March and 20 August 1981. Nearly all the counts in the presentment describe the alleged offences as having taken place between those dates "on an occasion other than that referred to [in other counts which alleged similar offences]" (emphasis added). It is self-evident that the word "occasion" as used in the presentment seeks to distinguish between the offence that was the subject of one count and similar offences which are the subject of another count or other counts. The particulars of each count contain a brief summary of the act which is said to constitute the offence and, notwithstanding that they state that the commencement of the relevant period is 1 March 1981 (which I assume is a typographical error and the intended date was 2 March 1981) the period in the particulars during which it is said that the offences took place, is the same as that stated in the presentment. Thus, neither the presentment nor the particulars alleged in respect of any count that the offending conduct occurred on any particular day (or during any particular episode). But the particulars go on to refer to, and thereby incorporate by reference, a paragraph of the statement of the relevant complainant (which was to be the basis of his evidence). The statement describes the sexual acts performed by the applicant with the complainant in the context of sequential episodes during each of which, it is said, a number of such acts were committed. Thus, in respect of each alleged offence, the witness describes in his statement the circumstances which took place and, importantly for present purposes, the episode during which it occurred (thereby distinguishing the charged act from any uncharged acts of a similar nature about which M, for example, gave evidence). In order to illustrate these matters, I set out by way of example the terms of the presentment relating to count 9 and the particulars provided in relation to it.

[57]

At the trial, M's evidence-in-chief broadly followed his statement except that it did not support the allegations in count 4 (the first alleged act of anal penetration by the applicant of M), count 5 (masturbation) and count 7 (oral rape), in respect of which the applicant was acquitted by direction as I will explain later. Because of the importance for present purposes of counts 3, 8 and 9, it is convenient to mention here that the only counts which alleged that the applicant committed anal penetration of M were counts 4 and 9. Count 12 was concerned with M being forced by the applicant to commit anal penetration of him and in respect of that offence, the jury returned a verdict of not guilty. Counts 3 and 8 were the only counts on the presentment that alleged simulated intercourse with M. It will be recalled that M also gave evidence that the applicant performed on him uncharged sexual acts, approximately once per week for a period of about five months, a total of "roughly" 14 or 15 times including masturbation, oral, anal and attempted anal sex. During the cross-examination of M, it was demonstrated that he had a faulty recollection as to the timing of the offences. He conceded that he was not certain of the order in which some of the sexual acts took place. For example, he agreed that he did not remember during which of the episodes the act of anal penetration took place; he said that it could have been during the second, third, fourth or fifth episode. The witness said that he had a recollection of most of what happened but did not know the order in which it occurred. He was similarly confused about which of the episodes the applicant sought to engage with him in simulated sexual intercourse. He said that it could have been "the third, fourth or fifth" episode. In one sense, given that no complaint was made in relation to the applicant's alleged sexual misconduct towards the complainants until 1997, it is not surprising that the witness could not recall the timing of the events with sufficient precision to identify confidently during which episode the act in question took place. I mention for completeness that S also gave his evidence of the applicant's sexual conduct towards him in the context of identifiable episodes, but no relevant complaint about his evidence was made by Mr. Tehan under cover of this ground.

[73]

There is little doubt that the re-direction put the Crown's case in a different way to that which was presented by it up to that point in time. But in my view, it did not bring about a fundamental or material change to its case. First, the Crown continued to rely on the same acts as constituting the particular offence. In respect of count 9, for example, the prosecution continued to rely on M's evidence of the circumstances in which he said the (only) act of anal penetration took place. There was no other evidence of anal penetration by the applicant other than his general evidence that in the course of uncharged acts the applicant committed "anal" penetration on him. But such evidence lacked any specificity. The only evidence which dealt with the circumstances in which such anal penetration occurred was M's evidence (of the act which constituted the offence charged by count 9). The relevant point for present purposes is that the Crown at no stage relied in respect of count 9 on any act of anal penetration by the applicant other than the one described with some specificity by M. Secondly, the Crown's principal contention that the relevant acts took place during the period specified in the presentment and the particulars, did not change. Thirdly, although the prosecution led evidence of the applicant's sexual misconduct by reference to sequential episodes, it was not an essential element of the offence or of the Crown case that any particular act occurred during any particular episode. The applicant's counsel, in effect, recognised that it was not an essential element of the Crown case that the offending conduct occurred during a particular episode. As I have mentioned previously, he did not contend in his final address to the jury that, because M conceded in cross-examination that the act of anal penetration by the applicant may have occurred during any one of the episodes, they could not be satisfied beyond reasonable doubt that the prosecution had made out its case.

[74]

Furthermore, although the re-direction essentially reflected the prosecutor's submission as to how the jury's question should be answered by his Honour, the submission was made not so much to bring about a change to a fundamental aspect of the Crown case, but to avoid a potentially latent ambiguity in the presentment and associated problems that might arise from his Honour's then proposed answer. The prosecutor's initial submission that his Honour should answer the jury's question merely by explaining to them the different ways in which "occasion" was used in the presentment and then at the trial, did not find favour with his Honour. Rather, his Honour considered an alternative answer, namely, telling the jury that provided they were satisfied beyond reasonable doubt that the offending act which related to a particular count was committed within the period of the presentment, they could find the applicant guilty of it even if they were not satisfied that it occurred during any particular episode. It was at that point that the prosecutor expressed concern that if the issue were put to the jury in that way and bearing in mind the concession of M in cross-examination, there was a risk that in the circumstances, this may be productive of a latent ambiguity in the presentment, the risk of the jury relying on evidence of uncharged acts to convict the applicant and uncertainty of the verdict. All these vices were present in S v. R[30], with the result that the trial had miscarried. In order to overcome these potential difficulties, the prosecutor in effect elected in respect of count 9, for example, that the first act of anal penetration by the applicant of M would constitute the offending conduct for the purposes of that count and in respect of counts 3 and 8, the first and second acts respectively of simulated sexual intercourse by the applicant would amount to the offending conduct for the purposes of those counts, thereby giving specificity to the act which was to be the subject of each relevant count (to the exclusion of other like acts). Thus, the re-direction reflected the election by the Crown as to which offending act of the applicant was to constitute the relevant count. It was not sought for the purpose of belatedly altering the Crown case given the concessions by M in cross-examination.

[77]

In my view, the claim that the re-direction did not provide sufficient particularity and certainty to let the applicant know what case he had to meet, is without foundation. The particulars of the acts referable to each of the counts and which were alleged to have been committed by the applicant, remained unchanged. By specifying that the conduct relating to count 9, for instance, was "the first occasion" on which such an act was committed, merely reflected the prosecutor's selection of "one instance [of such conduct] to the exclusion of others" and thereby provided a sufficient measure of particularity[32]. In Lewis, the applicant was charged with a number of counts in relation to his daughter while she was between 7 and 13 years of age. The prosecution alleged a course of conduct of sexual abuse by the accused and the counts were selected as representative of a series of offences. The particulars of the counts set out the (frequent) circumstances of the accused's particular abuse of his daughter but it was stated that "this count relates to the first occasion of this type of sexual abuse". This Court held that by identifying in the particulars the first occasion of the alleged series of acts to the exclusion of others and electing to prove beyond reasonable doubt that it occurred, the prosecution provided the measure of particularity required to indicate the case the accused had to meet. Tadgell, J.A. (with whom Ormiston and Charles, JJ.A. agreed) said[33] that the fact that "first occasion" might have been at any time within the specified period did not make the count bad or preclude a valid conviction upon it. His Honour pointed out that the reasoning of Dixon, J. in Johnson v. Miller[34] supported the view "that it may be appropriate to identify a transaction by reference to the order of its occurrence in a series, whether or not any other transaction in the series is the subject of a charge". Thus, by specifying the "first occasion" on which the relevant conduct occurred for the purposes of the particular count, the prosecution in this case selected one act to the exclusion of others and in so doing stated definitively which act was to be treated as the subject of the particular count. There is, therefore, in my view, no basis for contending that the re-direction somehow converted a presentment of sufficient particularity to one which was insufficient in that respect. Consequently, no prejudice was suffered in my view by the applicant on that score.

[79]

I also cannot accept Mr. Tehan's submission that the re-direction created the risk that the jury would convict the applicant of the relevant counts on M's evidence of uncharged acts to which I have referred earlier. First, it will be recalled that the evidence of uncharged acts was given in the most general terms and contained no specificity as to the circumstances of the sexual misconduct. By way of contrast, M's evidence of the anal penetration of him by the applicant on which the Crown relied in support of count 9, included a description of how the offence was committed. Next, as Tadgell, J.A. said in Lewis[36], in the context of considering whether sufficient particulars of the offence have been provided by the Crown given that evidence of uncharged acts may also be given during the trial, that "once the Crown is tied down to one transaction, to the exclusion of any other, as the subject matter of any one count, appropriate instruction to the jury will provide, so far as provision can be made, for the jury's proper consideration and use of the evidence. The authorities which allow for the admission of evidence of `uncharged acts' must necessarily assume that, in cases where such evidence is given, the jury will be told how they may use it.". His Honour recognised in that passage that an appropriate direction to the jury will contain the risk of impermissible reliance on uncharged acts. It is to be assumed that the jury will follow the judge's directions and use the evidence of the uncharged acts accordingly[37]. In this case, the trial judge charged the jury so as to relate the evidence of the charged acts to each relevant count and he gave them two warnings as to the use of evidence of uncharged acts. It is readily apparent that the jury in this case approached their responsibilities seriously as is evidenced by the number and scope of the questions which they wanted answered by his Honour in the course of their deliberations. In my view, their behaviour showed that they fully participated in the trial as judges of the facts and fully appreciated that they were bound by the judge's directions to them on issues such as the limited way in which they could use the evidence of uncharged acts. Given all the circumstances, it is most unlikely that the re-direction would have caused them to disregard the judge's two relevant warnings and instead, with the result that they relied improperly on the evidence of uncharged acts in order to convict the applicant. Thus, in my view, there is no basis for contending that the re-direction created the risk that the jury would act on evidence of uncharged acts.

[82]

In my view, the jury's question did not necessarily reflect that some members concluded that the offence occurred otherwise than during the identified episode. It might be that some jurors were, at that point, not certain that the act took place on the day of the episode. But it is also possible that there was merely a disagreement amongst them as to whether they could convict unless they were unanimous that the relevant act took place during the particular episode and that no concluded view had been reached by them as to whether it did or did not so take place. Be that as it may, the jury were told by his Honour on two occasions that their verdict had to be unanimous. On the second occasion they were reminded of that obligation after there was an unauthorised communication on that issue between the jury foreman and his Honour's tipstaff to which further reference will be made later. For the moment, however, the relevance of that point is that given the circumstances in which the jury was reminded by his Honour for the second time on the issue of unanimity, it is unlikely that they would have forgotten or disregarded that obligation. Thus, again taking count 9 as an example, given their verdict, it can be fairly assumed that the jury were unanimous in their conclusion that the applicant did commit the act of anal penetration on M in the circumstances described by M. Similarly, assuming that the jury were mindful of their obligation to be unanimous and given the terms of the re-direction, it can also be fairly concluded that they were unanimous that the act charged by count 9 took place the very first time that the applicant committed an anal penetration of M. The jury might well have been so satisfied without necessarily concluding in which episode that act occurred. It was sufficient, given the re-direction, that they were unanimous that it did occur and that the first time it took place constituted the offence charged by count 9. Thus, there was the requisite degree of unanimity amongst the jurors and there was sufficient identification of the particular occasion when the act occurred for the verdicts not to fall foul of the requirements stipulated by Dawson, J. on those issues.

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