R v Glennon

R v Glennon - [2005] VSCA 262 - VSCA 2005 case summary — Zoe

1 In 1999 the applicant faced three trials for sexual offences against children alleged to have been committed between 1973 and 1991. At the first trial he was convicted on 20 counts of indecent assault, three counts of attempted buggery of a person under 14 and one count of buggery. There were six complainants aged between 10 and 16 at the time of the offences. At the second trial he was convicted on one count of gross indecency, five counts of indecent assault and three counts of rape. At the third trial he was acquitted on one count and the jury were discharged in relation to the balance of the counts. A new presentment was filed over and the trial was adjourned.

2 On 17th December 1999 the applicant was sentenced for the offences of which he had been convicted at the first and second trials. He applied for leave to appeal against conviction and sentence in relation to both trials. The applications succeeded in part.[1] A new trial was directed in relation to the counts the subject of the second trial. The total effective sentence of eight-and-a-half years' imprisonment imposed in relation to the counts the subject of the first trial was affirmed and a non-parole period of six-and-a-half years was fixed.

3 Presentment C0001839 was filed over on 22nd July 2003, preferring two counts of indecent assault (counts 1 and 3) and one count of rape in relation to a complainant whom I shall call "JC". That presentment related to the new trial directed by the Court of Appeal. Presentment C00041839.1 was filed over on 21st August 2003, preferring 16 counts of indecent assault (counts 1, 2, 3, 5, 6, 8, 9, 14, 15, 17, 19, 20, 22, 23, 24 and 25), one count of taking part in an act of sexual penetration with a child under ten (count 4), six counts of gross indecency (counts 7, 12, 13, 18, 21 and 26), two counts of taking part in an act of sexual penetration with a child aged between ten and 16 (counts 10 and 11) and one count of rape (count 16). There were three complainants, boys whom I shall call "CK", "JW" and "RW". That presentment related to what would have been the third trial in 1999.

4 In the remainder of this judgment I shall refer to the trial on presentment C0001839 as "the first trial" and to the trial on presentment C00041839.1 as "the second trial".

5 At the conclusion of the first trial on 8th August 2003 the jury found the applicant guilty on both counts of indecent assault and the count of rape. At the conclusion of the second trial on 10th October 2003 the jury found the applicant guilty on all counts except counts 2, 6 and 22. The learned trial judge heard a plea for leniency and, on 22nd October 2003, sentenced the applicant, on presentment C0001839, to 18 months' imprisonment on each of the counts of indecent assault and five years' imprisonment on the count of rape. His Honour sentenced the applicant, on presentment C00041839.1, to terms of imprisonment of 18 months on each of the counts of indecent assault except one, where a sentence of two years' imprisonment was imposed, and 12 months on each of the counts of gross indecency and to terms of imprisonment ranging from three to seven years on the counts of taking part in an act of sexual penetration with a child under ten, taking part in an act of sexual penetration with a child aged between ten and 16 and rape. Directions for cumulation resulted in a total effective sentence of 18 years' imprisonment on those two presentments. Further directions for cumulation, taking into account the sentence he was already serving, meant that the applicant would serve a further 20 years' imprisonment commencing on 22nd October 2003. A new single non-parole period of 15 years, commencing on that date, was fixed pursuant to s.14 of the Sentencing Act 1991.

6 The applicant seeks leave to appeal against his convictions at the first trial, his convictions at the second trial and the sentence.

First trial

7 There were nine grounds of appeal in the notice of application for leave to appeal against conviction, but grounds 1, 2, 5, 7, 8 and 9 were not pursued. Leave was sought to add six additional grounds. The Court permitted those grounds to be argued but reserved its ruling on the application for leave to add them. It will sometimes be convenient to refer to them as grounds rather than proposed grounds. The grounds that were argued read:

[4]

"3. The learned trial judge erred in admitting the evidence of the witnesses Woodward and Danaher to the effect of children other than the complainant 'sleeping' in the applicant's bedroom.

4. If the evidence referred to in ground 3 was admissible, the learned trial judge erred in failing to exclude it as a matter of discretion.

...

6. The failure of the learned prosecutor to call Vicky Dickason as a prosecution witness caused a miscarriage of justice.

...

10. A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, direction to the jury to consider each count separately; and in particular, the judge failed to direct the jury that a finding of guilt on one count did not dictate the verdict on the other counts.

11. A miscarriage of justice resulted from the failure of the trial judge to give any, or any sufficient, warning against propensity reasoning; and in particular -

(a) the jury were not directed that they should not reason that because the applicant had committed one of the charged offences he was the kind of person likely to have committed another such offence;

(b) the jury were not adequately instructed as to the use that they could make of the evidence of the uncharged acts;

(c) the jury were not warned against reasoning that if the applicant had committed any or all of the uncharged acts, he was the kind of person likely to have committed the charged offences.

12. The learned trial judge erred by failing to give an adequate Kilby warning as to the use that might be made of the delay in complaint.

13. The learned trial judge erred by failing to direct the jury that if the jury were to accept the evidence of Woodward and Danaher, the applicant was still to be accorded the full benefit of his earlier acquittal.

14. The learned trial judge erred when questioning the defence witness Dickason by suggesting to this witness that if a prosecution witness gave evidence contrary to Dickason's evidence, he would 'be telling lies on oath'.

15. A miscarriage of justice arose by virtue of an aggregate of errors."

[5]

8 The background to the first trial sufficiently appears from R. v. Glennon [No. 2]. Having regard to my conclusion below, there is no need to say more about the facts than will be apparent from my discussion of the grounds.

9 Mr Boyce argued grounds 10 and 11 first. Evidence had been given of four uncharged acts, but the jury were directed only that they must not substitute that evidence for evidence of the offences charged. They were not told the reason the evidence was admitted, except that it was "part of the narrative" and "interwoven with the facts ... relied on for the counts", and they were not warned against propensity reasoning. In other words only the second of the three components of the direction customarily given in relation to uncharged acts was given, or the first and second components if the references to narrative and interweaving with the facts are regarded as sufficient to satisfy the first. The three components of the customary direction were set out in R. v. Grech.[2] The authorities are numerous.[3] Their most recent reaffirmation is to be found in the joint judgment of Warren, C.J., Maxwell, P. and Harper, A.J.A. in R. v. BAH (No. 2).[4]

10 At first sight, the omission of the propensity warning is surprising. Two of the uncharged acts (the applicant's allegedly supplying pornographic material to the complainant and allegedly fellating him) occurred on the same occasion as the charged acts, but his allegedly "cupping" the complainant's genitals and attempting to fondle his genitals took place the day before and the day after respectively. Putting aside the possibility that the uncharged acts that occurred on the same occasion as the charged acts were part of the res gestae, the evidence of the uncharged acts was "[p]ropensity evidence" within the meaning of s.398A of the Crimes Act 1958, as that expression was interpreted in R. v. Best.[5] Its probative value had to be such that it was just to admit the evidence despite any prejudicial effect it might have on the accused. In the present case the evidence was admitted not to establish a relationship but to provide a context of intelligibility for the charged acts. There is no challenge to its admissibility.

11 The reason a propensity warning was not given appears from the transcript. The judge discussed the matter with counsel and explained that he did not propose to give more than an anti-substitution direction. Counsel acquiesced in that course. Mr Hill submitted that it was appropriate: it was fanciful to think that the jury would reason that, because the applicant engaged in all or any of the uncharged acts, he was the kind of person who was likely to have committed the two indecent assaults and the rape; either the jury were going to believe JC or they were not; and defence counsel may have had a good forensic reason for acquiescing, namely a desire not to alert the jury to the possibility of propensity reasoning.

12 I accept Mr Hill's submissions, subject to one qualification. There is a marked risk of propensity reasoning in cases of paedophilia. Ordinarily a warning is necessary in such cases, but it was open to the judge to consider that the warning was not necessary in the present case. Defence counsel's position was significant. Nevertheless at least two items of propensity evidence, not contemporaneous with the charged acts, were received in evidence without the jury's being warned not to reason from them that the applicant was the kind of person who was likely to have molested JC as charged. The omission of a propensity warning means that a stage was set on which other problems in the trial might assume an added significance when we come to ground 15.

13 It is convenient to turn next, out of the order of counsel's address, to grounds 3, 4 and 13. Two witnesses, Woodward and Danaher, gave evidence of having seen children sleep in the applicant's room at Karaglen on an occasion previous to the evening of the charged offences. Their evidence was led in rebuttal of evidence that it was expected another witness, Dickason, would give to the effect that children almost never slept in the applicant's room. The occasion of which Woodward and Danaher spoke was an occasion in relation to which charges had been preferred and the applicant had been acquitted at a previous trial.

14 The judge accepted, as counsel submitted, that the applicant had to be given the full benefit of that acquittal.[6] His Honour considered, however, that the jury could accept the evidence of Woodward and Danaher that they had seen children sleep in the applicant's room without calling the acquittal in question or undermining it. He explained the problem to the jury in the following terms:

[11]

R. v. Kotzmann itself was such a case. I have reluctantly concluded that this is such a case too.

19 The omission to give a propensity warning, although justifiable in itself, was unusual and left the jury without any warning against propensity reasoning. The Crown alleged sexual offences of a repellent character committed against a boy aged 12. The risk of propensity reasoning in such a case is grave. Then the jury were told that the applicant's acquittal on another occasion did not mean that he was innocent. Finally, whatever credit remained to the sole defence witness after she had been cross-examined was undermined by a question from the Bench. It is a terrible thing to invite JC to give his evidence again, and it may well be that he will not be required to do so; but, despite the judge's strenuous efforts to be fair to the applicant, I am persuaded that he did not receive the trial required by law.[11] The convictions sustained by the applicant on the first presentment will have to be quashed, the sentences passed thereon set aside and a new trial directed.

20 In those circumstances the other grounds may be briefly dispatched. If the new trial proceeds, a Kilby[12] warning should be given in conventional terms. It need not be elaborate.[13] It would be better not to say that the jury may take the complainant's delay in complaining into account only if the complainant did not have good reasons to delay or hesitate in complaining. Theoretically the victim of a sexual offence may have good reasons for delay but the delay may still be taken into account in deciding whether to accept his or her evidence. It would be preferable for the evidence of Woodward and Danaher not to be led. Its probative value is limited and its potential for causing trouble is considerable. Ms Dickason was not an eyewitness, nor was she in a position to give evidence as to JC's presence at the camp. The Crown will not be obliged to call her if the prosecutor considers that her evidence is unreliable.

21 I would grant leave to add the proposed grounds 11, 13, 14 and 15 but refuse leave to add the proposed grounds 10 and 12.

Second trial

22 There were 17 grounds in the notice of application for leave to appeal and notice had been given of a further eight proposed grounds. Grounds 1 to 7, 9, 10, 15 and 17 and proposed grounds 18 to 20 and 23 were not pursued. Again the Court permitted argument to be put but reserved its ruling on the proposed grounds. Again it will sometimes be convenient to refer to them as grounds. The grounds that were argued read:

[16]

25 It would have been better to say more clearly that evidence of a relationship between the applicant and one complainant was relevant to the offences said to have been committed against that complainant and not, of course, to the offences said to be committed against another or others; but I do not accept that the omission to make that point clearly should be upheld as a ground of appeal. In the first place, the passage in the charge I have set out above was followed immediately by a propensity warning. That is why Mr Boyce was constrained to argue not that the jury might have reasoned that, because of an offence against (say) CK, the applicant was more likely to have committed an offence against JW or RW but that they were likely to reason from the relationship between the applicant and CK. Secondly, no exception was taken. The substance of the charge was clear to counsel at the trial and it would have been clear to the jury. Thirdly, when his Honour returned to this point at the end of the charge, he said, "If you accept that evidence, you can use it in so far as it helps you to understand the nature and extent of the relationship between Glennon and [CK] or Glennon and [RW]."[17] In itself that may be equivocal, as Mr Boyce submitted in reply, but it reinforces my conclusion that the substance of the charge was clear to those at the trial.

26 Turning to grounds 12 and 13, a number of complaints were made about the direction the judge gave concerning probability reasoning. (The nature of such reasoning has been explained before, most recently in R. v. DCC.[18] I need not do so again for the purposes of this judgment.) His Honour gave the jury a simple example. No doubt the example could have been improved, but I do not think for a moment that it misled them. Next, this part of the charge contained one of two obvious slips. His Honour said, "But if the Crown doesn't satisfy you that there was no such collusion, no such fraudulent plan between the complainants, then you can proceed and may use [probability reasoning]".[19] Plainly, "doesn't" should have been "does". The jury would easily have made the transposition.

27 Another complaint was that the judge told the jury that the Longman warning applied when considering the evidence of each complainant as similar fact evidence in relation to another or others. That was said to be circular. All that his Honour meant was that the same dangers, arising from delay and failure of memory, applied and the jury should give that evidence the same strict scrutiny.

28 I come finally to a complaint that cannot be so briefly dispatched, although it is just as lacking in merit. (That is not to imply any disrespect for counsel's argument. This was a difficult case, to which Mr Boyce had evidently given careful thought. He advanced every argument that could properly be advanced on behalf of the applicant.) The complaint is that the judge did not give the jury the directions required in relation to innocent infection as opposed to collusion. The directions reflected a passage in R. v. Glennon [No. 2]. It will be as well to set that passage out. I said[20]:

[19]

"We have heard that it is part of the defence that the complainants have colluded, they have got their heads together, that the second and third complainants in time, that is, [JW] and [CK], have made their statements purely to support [RW] in what he said, presumably by reason of some plan, and that [RW] - he started off to get compensation, made the allegations and then the other two have planned to back him up - that is one proposition that has been floated. Well, the Crown have to dispel that beyond reasonable doubt. If they don't, well, you couldn't use the reasoning in question. Indeed, let me go one step further. Not only could you not use the reasoning, if they have got their heads together and falsely and deliberately through a plan made false allegations against Glennon, not only must you not use the reasoning, but you must acquit of all counts. So the Crown has to exclude the possibility of collusion, the reasonable possibility of collusion. If the Crown doesn't prove beyond reasonable doubt that there is no such collusion, no such fraudulent plan, if the Crown doesn't prove there is no such plan beyond reasonable doubt, then you must acquit. Clearly, you couldn't use the reasoning, you wouldn't need to, you would just have to acquit. But if the Crown doesn't [sc. does] satisfy you that there was no such collusion, no such fraudulent plan between the complainants, then you can proceed and you may use the reasoning; but then the Crown has also got to disprove beyond reasonable doubt some innocent basis for the complainants all making similar complaints such as media publicity or rumour or some other explanation which I haven't thought of. You would have to be satisfied beyond reasonable doubt that the similarity of complaint wasn't due to an innocent explanation of that nature before you could use the reasoning. In that event, if you weren't satisfied that you could exclude an innocent explanation, you couldn't use the reasoning, but it doesn't automatically mean that you must acquit as the case if it was a false plan. So if there remains at the end of your reasoning the possibility that there is some innocent or collusive explanation for the similarity of complaints, then you can't use the reasoning in question and the onus is on the Crown to disprove those possibilities." (Emphasis added.)

[24]

36 Counsel submitted that the words I have italicized invited the jury to convict the applicant not on the basis pleaded in the presentment but on the basis that, although he neither committed an act of gross indecency nor procured it, he was a party to it in some other way. The risk was said to be acute in relation to counts 7, 13 and 26, of which the victim had no recollection and in relation to which the Crown had to rely on another witness. No exception was taken. I accept Mr Hill's submission that the point is sufficiently met by the fact that the jury were provided with a chart briefly describing the particulars of each offence.

37 Nothing need be said about grounds 16 and 25. I have read the relevant part of the charge and, with respect, I do not consider that it was unbalanced. On the contrary, the judge summarized the arguments by reference to the issues. There were no errors or defects the aggregation of which would show this trial to have miscarried.

38 I would grant leave to add the proposed ground 24 but refuse leave to add the proposed grounds 21, 22 and 25 and refuse leave to appeal against the convictions sustained by the applicant at the second trial.

Sentence

39 The grounds of appeal against sentence are that the sentence offends the principle of totality and is manifestly excessive in all the circumstances. No complaint is made of the individual sentences. The complaint is solely as to the directions for cumulation.[21] No specific error was assigned but, it was submitted, the total effective sentence was outside the range.

40 The applicant had served approximately four-and-a-half years of the sentence of eight-and-a-half years referred to in [2] above. Accordingly, as Mr Boyce said, the sentence imposed on this occasion translated into a total effective sentence of 241/2 years' imprisonment with a non-parole period of 191/2 years or, if one takes account of the six years the applicant served in prison between 1991 and 1997 for earlier offences,[22] into a total effective sentence of 301/2 years' imprisonment with a non-parole period of 251/2 years. The applicant would be well into his 80th year by the time he served the sentence. Both the common law and s.5(2AA)(a) of the Sentencing Act preclude us from speculating as to whether he may be released on parole.

41 The sentences imposed on presentment C0001839 accounted for two-and-a-half years of the sentence imposed on both presentments. The sentences imposed on that presentment will have to be set aside. The sentences imposed on presentment C00041839.1 would, if undisturbed, result in a total further term of imprisonment of 171/2 years commencing on 22nd October 2003 and a total effective sentence of 28 years' imprisonment for all the offending beginning with the 1991 sentence.

42 I would not direct more cumulation in relation to the offences of which the applicant was convicted at the second trial.[23] The issue is whether it is outside the range to require the applicant to serve a further 171/2 years' imprisonment commencing on 22nd October 2003. Whether or not that sentence is affirmed, a new non-parole period will have to be fixed.

43 There is no doubt that a stern sentence was, and is still, required:

[27]

1. Grant leave to add the proposed grounds 11, 13, 14 and 15 in relation to the first trial but refuse leave to add the proposed grounds 10 and 12.

2. Grant leave to appeal against the convictions sustained by the applicant on presentment C0001839 and treat the appeal as instituted and heard instanter.

3. Allow the appeal, quash the convictions sustained by the applicant on that presentment, set aside the sentences passed thereon and direct a new trial to be had.

4. Grant leave to add the proposed ground 24 in relation to the second trial but refuse leave to add the proposed grounds 21, 22 and 25.

5. Refuse leave to appeal against the convictions sustained by the applicant on presentment C00041839.1.

6. Grant leave to appeal against sentence and treat the appeal as instituted and heard instanter.

7. Allow the appeal in part.

8. Affirm the sentences passed on presentment C00041839.1 but set aside the directions for cumulation in relation to those sentences and, in lieu thereof, direct that two-and-a-half years of the sentence imposed on count 11, six months of the sentence imposed on count 13, two-and-a-half years of the sentence imposed on count 16 and six months of the sentence imposed on count 23 be served cumulatively upon each other and upon the sentence imposed on count 4, but that otherwise all the sentences passed on that presentment be served concurrently, making a total effective sentence on that presentment of 13 years' imprisonment.

9. Set aside the directions for cumulation in relation to the sentence

the applicant was serving and, in lieu thereof, direct that the sentence of 13 years' imprisonment be served concurrently with the balance of the sentence the applicant was serving on 22nd October 2003 except for 18 months of the balance of that sentence, upon which the sentence of 13 years' imprisonment is to be served cumulatively, resulting in a total further term of imprisonment of 141/2 years commencing on that date.

10. Fix a new single non-parole period of 101/2 years commencing on 22nd October 2003.

[29]

48 In R v DCC[28] Callaway, J.A. held that a propensity direction should ordinarily be given when evidence of uncharged sexual acts is led in a trial to establish the relationship between the alleged offender and the victim, but as his Honour explains in his reasons, which I have read in draft, the evidence of uncharged acts in the trial under Presentment C0001839 was not led for that purpose. Rather, the evidence was led to give an intelligible context to the counts on the presentment[29]. Had the evidence not been led then the jury would have been presented with an artificial account of the circumstances in which the complainant JC said the offences occurred, and it is likely that the complainant's evidence would thereby have been unfairly diminished. The failure of defence counsel to request a propensity direction, when the judge rehearsed with counsel the directions he proposed to give to the jury, strongly suggests that counsel perceived no danger of injustice by its absence.

49 Given the circumstances in which the offences were said to have occurred, in particular the confined period over which both the charged and uncharged acts were said to have taken place, I consider that the risk of the jury employing propensity reasoning, concerning the uncharged acts, in deciding their verdicts was much reduced, indeed was negligible in this case. Had it not been for the other factors in the case which Callaway, J.A. has highlighted, I would not have regarded the absence of a propensity direction as having given rise to a perceptible risk of a miscarriage of justice[30]. Unfortunately, in what was otherwise a very well conducted trial those other factors, in particular the unfortunate choice of language employed in the direction concerning the applicant's 1984 acquittal, combined with the absence of a propensity direction to produce that risk. For these reasons, and for the reasons stated by Callaway, J.A., I agree that the application for leave to appeal against conviction in the trial under presentment C0001839 should be granted, the convictions be set aside and a new trial be ordered.

50 For the reasons given by Callaway, J.A. I agree that the application for leave to appeal against the convictions on presentment C00041839.1 should be refused. I agree, too, that the application for leave to appeal against sentence should be allowed in part, and the appellant be re-sentenced as proposed by his Honour. I also agree with his Honour's proposed orders with respect to both trials concerning the applications to amend the grounds of appeal.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties