R v J M A [2007] VSCA 105

1 I have had the advantage of reading in draft the reasons of Buchanan JA. I too would dismiss each application, for the reasons which his Honour gives.

2 The applicant seeks leave to appeal against his conviction on two counts of sexual penetration of a child under the age of 16 years and one count of an indecent act with a child. He also seeks leave to appeal against the sentence imposed upon him.

3 The applicant is aged 59 years. He was aged 56 years when the offences were alleged to have occurred. The complainant was then aged between four and five years. The applicant and his wife were neighbours and close friends of the parents of the complainant. The complainant's father frequently left her in the care of the applicant.

4 The offences were said to have come to light on Sunday 31 October 2004 when the complainant and her parents visited the applicant at his house. In his evidence at the trial, the complainant's father said that the applicant took the complainant out to a shed at the rear of the house, in which he kept birds. The complainant's father said he walked into the shed to find his daughter lying on a table. Her dress had been pulled up and her underpants down. The applicant was crouched beside her, his mouth close to her vagina. The complainant's father gave evidence that he asked the applicant what he was doing. The applicant replied, "Oh, I am doing nothing wrong." The applicant said the father should ask his daughter. When he did so, the complainant said, "He was touching my puppet", a term which her mother taught her to use to refer to her vagina.

5 The complainant, her father and the applicant went into the kitchen and joined the wife of the applicant and the mother of the complainant. The complainant's father said that the applicant told his wife, "Look, this has got to come out, might as well come out now. He thinks that I touched his daughter." The

complainant repeated the statement, "He was touching my puppet."

6 The matter was reported to the police. The applicant was charged with three counts of sexual penetration (counts 1, 3 and 5), three counts of an indecent act with a child (counts 2, 4 and 6), two of which were alternatives to counts 1 and 5.

7 The complainant gave unsworn evidence at the trial pursuant to the provisions of s 23 of the Evidence Act 1958 by means of a VATE video tape. She said that before her father entered the shed, the applicant "put my dress up and put my underwear down." She said, "He was touching my puppet ... he touched my puppet with his tongue." She said the applicant touched her puppet with his tongue "when dad goes to the physio and goes shopping ... it happened today, and happened yesterday and yesterday and yesterday and yesterday and yesterday." On one occasion she said he touched her puppet with his puppet. "He put it next to mine." On three occasions the complainant said that the applicant put his tongue in her vagina. On other occasions she said the applicant "Put his tongue to my puppet." She said, "And sometimes he - and when he's licked my puppet he gets a towel to wipe my puppet." The complainant also said that the applicant "put his puppet into my puppet" and "put his fingers on my puppet." The complainant said that the applicant told her not to tell her parents. He said, "You do this when you are married."

8 The complainant's mother gave evidence. She said that on 31 October 2004 she was in the kitchen of the applicant's house with the applicant's wife. Her husband, the complainant and the applicant came into the kitchen. The applicant seemed upset and said that the complainant's father thought he had touched his daughter's vagina. The applicant said that he only kissed her tummy. When asked by her mother, the complainant said that the applicant had touched her puppet. The mother's evidence was corroborated by the applicant's wife.

9 Dr Paxton gave evidence that she examined the complainant at the Royal Melbourne Hospital on 1 November 2004. The complainant was accompanied by members of her family and a policewoman. She said that she asked the complainant what had happened and the complainant said that the applicant had put her on a blanket, put her dress up, her underwear down and touched her puppet and licked it. She said it happened all the time when she was at the applicant's house when her father was at the physio. She also said that the applicant used to take off his pants and put his puppet into hers. The applicant told her not to tell her parents because you only did it when you were married. Dr Paxton took swabs from the complainant's body and examined her. There was no evidence of any bruising or laceration. Dr Paxton said the physical examination findings were normal, but said that she did not think that excluded orogenital or genital to genital contact.

10 A forensic scientist gave evidence that she made a DNA analysis of underpants taken from the complainant. A swab from the gusset of the underpants revealed DNA of a male and a female. The swab was compared with samples taken from the complainant and the applicant and statistically analysed. The expert said:

"A result of the statistical analysis showed that it would be expected to be at least 1,450,000 times more likely that the DNA profiles would match if it arose as the result of contributions from both [the applicant] and [the complainant], than if it arose as a result of contributions from [the complainant] and an unknown male chosen at random from the Victorian Caucasian population."

11 The applicant gave sworn evidence. He said that while he was in the shed feeding the birds, the complainant sat down on a little desk and "sort of went backwards and lifted her legs up and her dress came up with it at the same time." Just before she put her legs down, the applicant said he bent down and tried to blow on her stomach. He looked up and saw the complainant's father near the door. The complainant's father asked him what he was doing to his daughter, and he replied "Nothing." The applicant said that he had looked after the complainant at his house. On two occasions he kissed her on the tummy.

12 The jury found the applicant guilty on the counts of penetration alleged to have been constituted by the insertion of the applicant's tongue into the vagina of the complainant. The jury acquitted the applicant on the count which alleged he inserted his penis into the vagina of the complainant and found him guilty on the alternative count of indecent assault, which the Crown alleged was constituted by laying his penis on the applicant's vagina.

13 After a plea, the applicant was sentenced to be imprisoned for a term of five years on count 1, to a term of three years on count 4 and to a term of six years on count 5. The sentencing judge noted that the applicant was sentenced as a serious sexual offender in respect of count 5. Her Honour ordered that four years of the sentence imposed on count 1 and two years and three months of the sentence imposed on count 4 be served concurrently with the sentence imposed in respect of count 5, creating a total effective sentence of seven years and nine months' imprisonment. Her Honour fixed a non-parole period of five years and six months.

14 The first ground of the application for leave to appeal against conviction was that the trial judge erred in permitting the Crown to lead evidence from Dr Paxton of her conversation with the complainant. Although defence counsel did not object to the evidence at trial, it was now said that the evidence had no probative value or alternatively that the probative value of the evidence was outweighed by its prejudicial effect, and accordingly the evidence should have been excluded.

15 Dr Paxton gave expert testimony as to whether the actions alleged to have been performed by the applicant resulted in observable signs on the body of the complainant. She said that there were none, but also said that result was not inconsistent with orogenital or genital to genital contact. In my opinion that evidence could only be properly understood if the doctor recounted the basis of her opinion, namely, the complainant's account of what the applicant did to her. Similarly, in Ramsay v Watson[1] the High Court held that evidence of what men told an examining doctor was admissible as "part of the material on which he formed the opinion that he gave in evidence."[2]

16 The complainant's statements to the doctor were not evidence that could prove the events she recounted, but were admitted to explain the doctor's opinion. It was, of course, necessary for the complainant to give evidence of the events, for otherwise the doctor's opinion would have had no value, for it would have lacked any basis.[3] Doctor Paxton's evidence did go further than was necessary to explain and place in context her professional opinion insofar as she repeated the complainant's statement that the applicant told her not to tell her parents, as people only acted in that way if they were married. In my view that did not result in a miscarriage of justice, for the trial judge instructed the jury that Dr Paxton's evidence was "not evidence of complaint."

17 An associated ground of the application was that the trial judge failed to give a sufficient direction to the jury with respect to Dr Paxton's evidence. The trial judge said, in the course of her charge:

"[T]he evidence of the doctor, Dr Paxton, as to what [the complainant] said to her is not evidence of complaint in the way that I have just described. Dr Paxton gave evidence of questions that she asked of [the complainant] and answers that she gave her and that evidence was led to provide background to the medical examination which then took place and to provide a basis to the opinion which Dr Paxton expressed to you. That is the only use to which Dr Paxton's evidence can be put about what [the complainant] said to her. It is not evidence of complaint."

Counsel for the applicant contended that the trial judge erred in failing to instruct the jury that the evidence of the complainant's statements to the doctor was not evidence of the facts.

18 The trial judge correctly stated what use could be made of the evidence. She said that was the only use to which the evidence could be put. She also said that "the evidence is only what is said in this Court." In my view it followed, without the need for elaboration, that the jury could not view the complainant's statements as evidence of their truth. If the jury had used the evidence for that purpose, they would have disobeyed her Honour's clear instructions. It is not surprising that no exception was taken to this aspect of the charge.

19 The next ground of the application was that the trial judge should have explained the burden of proof that lay on the Crown by contrasting the criminal standard with the civil standard of proof.

20 The trial judge instructed the jury several times during the course of her charge that the Crown was obliged to prove the elements of the offences beyond reasonable doubt. Her Honour did not attempt to explain the meaning of the phrase "beyond reasonable doubt". It is well established that "it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and ... popularly understood formula."[4] Trial judges may contrast the criminal standard of proof with the standard of proof in civil proceedings[5] and on occasions do so. I have some doubt, however, whether it assists a jury to understand the meaning of the words "beyond reasonable doubt" to tell them what it does not mean.[6]

21 In Green v R[7] Barwick CJ, McTiernan and Owen JJ said:

"Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case."[8]

Similarly, in Thomas v R Windeyer J said, "it is not [the jury's] task to analyse their own mental processes."[9] In my view there is some risk that a jury invited to contrast the concept of "beyond reasonable doubt" with "satisfaction on the balance of probabilities" may indulge in analysis of their mental processes.

22 At all events, I think the trial judge did not err in failing to make the comparison. In the end counsel for the applicant conceded that the absence of the comparison by itself did not impeach the verdicts, but rather contributed to verdicts which were unsafe.

23 The fourth ground of the application related to the counts of sexual penetration. It was complained that there was no evidence, or no sufficient evidence, of penetration. Counsel for the applicant submitted that the complainant's evidence was vague and equivocal. The complainant used different expressions to describe the contact between the applicant's tongue and her vagina. She spoke of "touching", putting his tongue "to" her vagina and "licking" her vagina. The complainant did, however, state clearly on three occasions that the applicant put his tongue "in" her vagina. The trial judge correctly told the jury that "the slightest penetration of the vagina is sufficient ... that there must be penetration to some extent, however slight", and that the vagina was defined in law as including the external lips. The complainant's evidence as to licking by the applicant was that it was vigorous, for she described him using a towel afterwards to mop his face and her vagina. In my view there was evidence which the jury could accept as establishing penetration.

24 The fifth ground of the application was that the verdict of not guilty on count 3 was inconsistent with the verdicts of guilty on counts 1 and 5. It will be recalled that count 3 alleged penile penetration, while counts 1 and 5 concerned lingual penetration.

25 The acts constituting count 3 on the one hand and counts 1 and 5 on the other hand were different in nature, and the complainant's evidence with respect to count 3 could be viewed as raising some doubt. She said that it did not hurt her and, when asked in cross-examination, "Did [the applicant] put his puppet into your puppet?" said "I don't remember." In his address to the jury counsel for the applicant pointed out that penile penetration might well have caused physical damage which Dr Paxton could have observed. In my opinion there was a basis upon which the jury were entitled to entertain a reasonable doubt as to whether count 3 was established, without being compelled to reach the same conclusion with respect to counts 1 and 5.

26 The sixth ground of the application was that the verdicts on all counts were unsafe and unsatisfactory in that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

27 At the forefront of the case advanced on behalf of the applicant under this ground was the submission that, by reason of her age, the complainant could not meaningfully give evidence at the trial. In my view that proposition was not established. We have viewed two VATE tapes and the video film of the applicant's evidence at the trial. Although but a child in years, and naturally reluctant to dwell upon the intimate details of the applicant's conduct, the complainant's evidence was assured, thoughtful and apparently honest. Her evidence was supported in important respects by the analysis of DNA samples, the evidence of her father as to his observations in the shed and the adults' evidence of the statements made by the applicant immediately after being discovered in the shed with the complainant. I think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

28 The applicant was granted leave at the hearing of the appeal to add a ground alleging that the trial judge erred in failing to direct the jury that an element of the offence of sexual penetration was that the act of penetration be committed intentionally.

29 The trial judge told the jury:

"The next part of that first element or ingredient is that the accused wilfully committed the indecent act, and that simply means that the act must be intentional and deliberate, as opposed to accidental. There is no suggestion here that the acts were accidental, as you are well aware, the defence response to the prosecution allegations are that the acts did not occur at all."

No exception was taken to this aspect of the charge.

30 At the hearing of the appeal, counsel for the applicant conceded that it was not an issue at trial that the penetration may have been accidental. Counsel relied upon the decision of this Court in R v AJS[10]. In that case the accused was convicted on one count of incest by digital penetration. He gave evidence at trial that he had been rubbing the girl's stomach because she was suffering stomach cramps. He said that he was not aware of touching her in the vaginal area and denied that he had penetrated her vagina. The trial judge, in her charge to the jury, made no reference to the element of the crime of incest that it was an intentional act. Intent was one of the principal issues at the trial. The Court said:

"In our view, the failure to direct the jury about proving intent beyond reasonable doubt was, in the circumstances of this trial, an error of such a fundamental nature that it went to the root of the proceedings. The applicant's defence was that any contact with the complainant's vagina was accidental. The question of intention could not have been more pivotal."[11]

That is not the present case. Here there was no issue that the applicant accidentally penetrated the complainant's vagina. The issue was whether or not the applicant applied his tongue to the complainant's vagina. In my opinion the ground has not been established.

31 For the foregoing reasons I would refuse leave to appeal against the convictions.

32 As to sentence, it was not alleged that the sentencing judge fell into specific error. Rather, the complaint was that the individual sentences, the total effective sentence and the minimum sentence were manifestly excessive, and, effectively as a particular of that ground, that the sentences attached undue weight to the seriousness of the offences and general deterrence and gave insufficient weight to the age, state of health and previous exemplary character of the applicant.

33 The applicant had no prior convictions. He was born in Malta and came to Australia at the age of 15 or 16 years. He had a good work history. He was

employed by the same employer for 25 years before being injured at work in April 2004. The sentencing judge accepted that the applicant suffered depression as a result of his inability to work. A doctor's report dated 11 April 2005, which was tendered in the course of the plea, stated that the applicant "lives in chronic pain" as a result of the injuries he sustained to his back and shoulder. His future prognosis was poor. The sentencing judge also noted that there was a risk that the applicant's interest in his house would be confiscated.

34 The maximum sentence for penetration of a child under the age of 16 years was 25 years' imprisonment. The maximum sentence for an indecent act with a child under the age of 16 years was 10 years' imprisonment. These offences were serious examples of the crimes. The victim was very young and completely in the power of the applicant. She and her family trusted the applicant. General deterrence is an important consideration in sentencing for crimes such as these. It is also important that the crimes be denounced by the courts. Vulnerable children are entitled to the protection of the law.

35 Having regard particularly to the applicant's age and hitherto blameless life, the sentence might be described as stern. In my view, however, the crimes themselves do not enable it to be concluded that the sentences were not capable of being imposed in the exercise of a reasonable sentencing discretion. Accordingly, I would refuse leave to appeal against sentence.

36 For the reasons given by Buchanan JA, I would refuse leave to appeal against the convictions and sentence imposed on the applicant.

[1] [1961] HCA 65; (1961) 108 CLR 642.

[2] Above at 648.

[3] See Ramsay v Watson, above at 649.

[4] La Fontaine v R (1976) 136 CLR 62 at 71 per Barwick CJ.

[5] See R v Neilan [1992] VicRp 5; [1992] 1 VR 57 at 71 per Young CJ, Booking and Marks JJ.

[6] Cf R v Blanch (unreported, 17 August 1988, New South Wales Court of Criminal Appeal) at p 4.

[7] [1971] HCA 55; (1971) 126 CLR 28.

[8] Above at 32.

[9] [1960] HCA 2; (1960) 102 CLR 584 at 606.

[10] [2005] VSCA 288; (2005) 12 VR 563.

[11] Above at 570 per Maxwell P, Nettle JA and Redlich AJA.