R v K E T [1998] VSCA 73

5. The applicant was ultimately presented for trial in the County Court at Melbourne in February of this year on the 14 counts to which I have referred. The presentment alleged:

(a) three counts of indecently assaulting SL between 1 January 1997 and 28 May 1997 (counts 1 to 3 on the presentment);

(b) three counts of indecently assaulting MD between October 1978 and December 1982 (counts 4 to 6 on the presentment);

(c) one count of raping MD between January 1982 and October 1983 (count 7 on the presentment);

(d) six counts of indecently assaulting JD between November 1979 and December 1985 (count 8 to 13 on the presentment);

(e) one count of indecently assaulting CL in December 1981 (which was the final count numbered 14 on the presentment).

13. After a trial lasting some two weeks, during the course of which the applicant gave sworn evidence, he was on 10 March of this year convicted on counts 4 to 6, (the indecent assaults of MD), and counts 8 to 10, (three of the indecent assaults of JD). He was acquitted of the remaining eight counts on the presentment, that is, counts 1 to 3, (the alleged indecent assaults of SL), count 7, (the rape of MD), and counts 11 to 13, (three alleged indecent assaults against JD), and count 14, (the alleged indecent assault of CL).

16. On 11 March of 1998 the trial judge sentenced the applicant as follows: count 4, to a term of imprisonment of three months; count 5, to a term of imprisonment of three months; count 6, to a term of imprisonment of five months; count 8, to a term of imprisonment of three months; count 9, to a term of imprisonment of six months; count 10, to a term of imprisonment of five months. His Honour ordered that the sentences on counts 5, 6, 9 and 10 be served cumulatively upon each other and upon the sentence imposed on count 1. The total effective sentence therefore was 2 years and one month. His Honour ordered that the applicant serve a minimum period of 18 months before becoming eligible for parole.

19. The applicant has sought leave to appeal against both the convictions recorded and sentences imposed. Mr Tehan QC who appeared in this Court for the applicant has, in substance, argued that the convictions should be set side on the grounds that they are unsafe and unsatisfactory, firstly because the convictions are inconsistent with the verdicts of acquittal and also because the convictions were secured by evidence which was so old and imprecise and unconfirmed as to render them unsafe on that account.

22. These submissions were advanced respectively by Mr Tehan in support of grounds 1 and 2 and 4 and 5 of the grounds of appeal. No argument has been addressed to this Court in support of Ground 3 in the Notice of Appeal. Mr Tehan has also submitted that the sentences imposed are manifestly excessive and that in imposing the sentence which he did the learned judge placed too much weight on the aspect of specific deterrence.

25. Before turning to Mr Tehan's arguments in support of these grounds it is desirable to briefly describe the facts disclosed in the evidence.

28. Counts 1 to 3 alleged indecent assaults against SL in 1977. By the time of the trial the offences were therefore over 20 years old. The offences were alleged to have occurred in the first half of 1977 immediately before the wedding of the applicant and his then bride-to-be, "Jennifer", the aunt of SL. SL was to be a bridesmaid at the wedding and the applicant and Jennifer had arranged for a dress to be made and fitted for her. SL alleged that the assaults occurred on three separate occasions in the applicant's car when he was driving SL to the dressmaker. The assaults consisted of fondling by the applicant of her breasts whilst the applicant was driving the car. SL had initially told the police that these assaults had occurred in 1975 but had subsequently changed her story when told that the wedding was some two years later. The applicant gave evidence that he had never assaulted SL; that when SL had been taken for dress fittings his fiancee, Jennifer, had always been with him, and that there were only two occasions, in any event, when SL had been taken to the dressmaker. Jennifer, who is now separated from the applicant, confirmed the applicant's testimony that she had been with the applicant on each occasion upon which they had driven SL to the dressmaker.

31. Counts 4 to 7 were the alleged assaults and rape upon MD. They commenced in or about 1978 or 1979 when MD was approximately 10 years of age. MD gave evidence of many sexual interferences by the applicant other than those charged which both preceded and occurred during the time when the charged acts were alleged to have occurred.

34. Count 4 was said to have occurred at Christmas time at her grandmother's house in Stewart Street, when the applicant and Jennifer had given her a strapless dress. She said she was in the back yard and the applicant had put his hands down the dress and fondled her breasts. The applicant denied these events.

37. Count 5, she said, occurred about a year later when the applicant was visiting her parents' house. She had returned from school wearing her school tracksuit and had gone into the loungeroom. The applicant had come in, closed the door and rubbed his hand up and down in the vicinity of her vagina. Again the applicant denied that these events had occurred.

40. The events alleged in count 6 occurred when her mother was away in about 1981 or 1982 and MD was at her grandmother's house in the care of the applicant and her Uncle Clarence. MD was in the bedroom of the house when the applicant entered and locked the door. She said he came over to her when she was sitting on the bed and commenced to rub himself against her. He took out his penis and rubbed it against her arm. He ejaculated onto her skirt. She had been upset and went into the lounge where Clarence was sleeping. He woke up and had noticed that she was visibly disturbed. Again the applicant denied that these events had occurred.

43. Count 7, the alleged rape of MD, was again said to have occurred in the bedroom of her grandmother's house. It happened, she believed, during holidays in 1982 or 1983. She said that she had told the applicant she was going to tell her father what he was doing to her. He became very aggressive and rough, forcing her onto the bed. He picked up a coathanger and "scrunched up one end" of it and pushed it into her vagina. She said he was angry and she was emotional. It did not last long and she could not recall whether it hurt. She was very disturbed and later noticed blood spots on her underwear. MD said that thereafter the applicant regularly made sexual advances to her; it would happen, she said, almost every Sunday when the family congregated at the grandmother's house.

46. Counts 8 to 13 alleged indecent assaults against MD's sister, JD. In respect of all counts, the applicant denied that the assaults had occurred. The first of such assaults, she said, occurred at the grandmother's house in or about 1980 when she was about 8 years of age. She had entered the bedroom when the applicant was changing the nappy of one of his children. When he had done that, he pulled JD to him and fondled her breasts and vagina.

49. The second event (count 9) occurred, she said, again in the bedroom of the grandmother's house. The applicant took her there, closed the door, and put his foot against it whilst he put his hand under her pants and inserted his finger into her vagina.

52. Count 10 was yet again an event which occurred at the grandmother's house. She recalled it was a Sunday and the applicant had taken her to the bedroom and whilst putting his hand on her vagina, had torn her panties. He had then taken her into the diningroom where a number of people were sitting at the table. He called for her to sit on his lap and when she said she did not want to, her mother told her not to be silly. She went and sat on the applicant's lap and, under cover of the tablecloth, the applicant inserted his hand into her pants and his finger into her vagina.

55. JD described a further assault (count 11) which occurred in 1983 or 1984 when she had gone to stay at the house of the applicant and her Aunt Jenny. She said she had slept with the applicant and Jenny in their bed and that, in the morning, Jenny had given her a breakfast tray to take to the applicant. He was under a doona. She said he removed the doona and he took her hand and placed it on his penis. He pushed her hand up and down the penis.

58. Jennifer said that there was never an occasion where JD had slept in the bed with her and the applicant.

61. JD described a further incident (count 12) said to have taken place in 1985 when the applicant's family was at her place and she was with the other children in her mother's bedroom playing on the bed. The applicant came in and, as she said, tried to insert his finger in her vagina, but she stopped him by kicking him.

64. The final indecent assault which JD alleged (count 13) was again said to have occurred in 1985 when the applicant came over to her mother's house to put "Contact" in the cupboards. She said she had had a shower and was scantily clad. The applicant came into the bedroom where she was and fondled her breasts and vagina. Her mother said that she remembered the occasion but, although there had been a complaint from MD at the time, there was none from JD.

67. The final count (count 14) alleged an indecent assault against CL in 1981 when she and her sister were staying at the applicant's house. She said it was Christmas holidays and she was 11. She was sleeping in the family room with the applicant, she said, and she remembered waking up and he had his finger in her vagina. Jennifer, the applicant's ex-wife, said that on the weekend CL stayed at the house, the applicant was away shooting.

70. It is against the background of that summary of the evidence that I can now turn to Mr Tehan's argument on this appeal. It is true, as he submits, that these offences are old and that the evidence given in respect of them by the complainants is uncorroborated and given by persons who are now of mature age about events which occurred when they were children. Those features of the case are an increasingly familiar phenomenon in the courts in recent years, as changing societal values have encouraged people who have been victims of assault in the domestic context to speak out. It must of course be recognized that the delays which so frequently attend prosecution of offences such as these can rarely be laid at the door of the complainants who so often are disinclined or fearful of speaking out against a person who is within the family circle. Nonetheless, it must also be recognized, as Mr Tehan has so cogently submitted, that the prosecution of criminal offences remote in time from their commission imposes upon the courts a commensurately heavy burden to ensure that proper directions are given in order that the trial of the accused is a fair one. It has not been contended in this appeal that the directions given by the trial judge in this case were otherwise than full and appropriate to achieve its purpose. The learned judge brought it home with clarity to the jury that the evidence here was uncorroborated and was being given at a time when the applicant had, to all intents and purposes, been deprived of the capacity to put it to the test. Accordingly, the judge told the jury that before they could convict the accused on any count on the presentment they would have to be satisfied beyond reasonable doubt that the applicant had assaulted the girl in question and that "that would mean rejecting beyond reasonable doubt the possibility that the accused's version was correct". His Honour told the jury that in this case, where it was "word against word", it would be dangerous for them to convict upon the evidence of a complainant alone unless, after subjecting that evidence to thorough scrutiny, they were nonetheless satisfied of its truth and accuracy. His Honour further told the jury in careful terms that this process was to be engaged in by them in respect of each count on the presentment to which separate consideration was to be given.

73. It would seem clear from the jury's verdict that they paid heed to these instructions because, after deliberating for more than a day, they acquitted the applicant of all the counts in respect of which SL was the complainant, the only count where CL was the complainant, three of the counts where JD was the complainant, and the count of rape in respect of which MD was the complainant. It is submitted by Mr Tehan that the verdicts of guilty on the remaining counts are, however, unsafe and unsatisfactory because they are inconsistent with the verdicts of acquittal; not in the legal or technical sense that the inconsistency is apparent on the face of the record, but in the sense that no reasonable jury, applying their minds properly to the facts of the case, could have arrived at the different conclusions which they did. (R. v. Bacash [1981] VicRp 86; [1981] V.R. 923 at 929; R. v. Nanette [1982] VicRp 8; [1982] V.R. 81 at 83; R. v. Dell'Albani (1990) 49 A.Crim.R. 294 at 296.) To succeed on the ground of this type of inconsistency, it is for the applicant to satisfy the court that the verdicts returned by the jury, having regard to the way in which the case was left to them by the trial judge, cannot rationally stand together. This is no easy task for an applicant to assume because where, as here, the jury has been told, and strongly told, that separate consideration must be given to each count and to the evidence which has been given in respect of the count being considered, the differing verdicts are usually explicable on the basis that the jury has been obeying that direction. (See R. v. Nanette, supra, per McInerney J at 87.)

76. Although Mr Tehan sought to draw what he submitted was a pattern of inconsistency from all the verdicts returned by the jury, it seems to me that, if there is to be found an inconsistency of verdicts of the relevant sort, it is necessary to concentrate on the differing verdicts returned on the counts in respect of which the one complainant was the principal witness. In this case that means that before the argument of inconsistency could be made good, the applicant would need to demonstrate that the relevant inconsistency exists between the guilty verdicts returned on the counts of indecent assault (counts 4, 5 and 6) where MD was the complainant and the not guilty verdict on count 7 (the rape count which involved the same complainant) and that there is a relevant inconsistency between the guilty verdicts on counts 8, 9 and 10 and the not guilty verdicts on count 11, 12 and 13 in respect of all of which counts JD was the complainant.

79. Mr Tehan's submission is that inconsistency of the relevant kind can be demonstrated between these groups of verdicts, first, because the acquittal on count 7 in the one case, and on counts 11, 12 and 13 in the other case, demonstrate that the jury must have regarded the complainants JD and MD as unreliable witnesses and, secondly, because an analysis of the verdicts, so it is said, reveals that the jury has approached its task "by seeking corroboration of the applicant's denial" rather than by concentrating on the question whether the complainant's uncorroborated testimony could be safely acted upon to prove her allegations beyond reasonable doubt. Such a process of reasoning, Mr Tehan contends, would be contrary to law. Although he did not present the point strongly, he suggested that the jury may have misled itself by misconstruing the directions of the judge when he told them that it would be dangerous to convict on the "uncorroborated evidence of the accuser", suggesting that the use of that word might have been misconstrued as a reference to the uncorroborated evidence of the "accused" (my emphasis).

82. Despite the well presented submissions of Mr Tehan, I am unpersuaded that they have been made good. Where, as here, the judge has directed the jury that they must give consideration separately to each of the charges and must acquit unless they can be satisfied on the whole of the evidence, including the denials of the accused, bearing upon such a charge, it does not seem to me that the fact that the jury has returned verdicts of acquittal on some of the charges necessarily implies, at least in the circumstances of this case, that the jury has regarded the particular complainant as an untruthful or unreliable or incredible witness. As Brooking, J. pointed out in R. v. J. (No.1) (1994) 75 A.Crim.R. 522 at 539-40:

"Regard must always be had [that is, in considering inconsistency of verdicts] to the possibility that the jury, which has convicted on a number of counts and acquitted on others, has accepted the complainant as truthful, but has admitted the possibility of faulty recollection in some cases."

86. These remarks were adopted and applied by Winneke P. and Charles J.A. in R v. J (No.2) (Court of Appeal, as yet unreported, 27/2/97 at 52). In cases where a factual inconsistency of verdicts is alleged, it should be steadily borne in mind that:

"the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly in the context of both criminal and civil trials reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury ... the appellate court may conclude that the jury took a "merciful" view of the facts on one count; a function which has always been open to, and often exercised by juries": Mackenzie v. R. (1996) 190 C.L.R. 348 at 367 (per Gaudron, Gummow & Kirby JJ.)

90. Mr Tehan sought to draw support for his contention, namely that the verdicts of acquittal on Counts 7, 11, 12, and 13 necessarily damaged the credibility of the complainants MD and JD in respect of all counts, from the decision of the majority in Jones v. R. [1997] HCA 12; (1997) 149 A.L.R. 598, particularly at 608. However, Jones's case, in my view, is a case which has to be looked at in the light of its own particular facts, as indeed all cases where this issue raised must be. In Jones's case three discrete acts of sexual penetration were alleged and the jury convicted the accused on two and acquitted on one, in circumstances where the acquittal, as the judgments made clear, must necessarily on the facts of that case have reflected upon the credibility of the complainant's evidence on the other two counts. Furthermore, it would seem from the judgments in Jones' case that special emphasis was laid on the prejudice flowing to the accused from the delay in complaint because it was apparent from the special facts of the case that there was a real risk that that delay had deprived the accused of what the majority judges had called "a cast iron alibi" (see p.610).

93. However, in my view, it would be wrong to draw from the decision of Jones' case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury's acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted. Indeed, in this case it would seem to me that the jury, by convicting the accused on six counts on the uncorroborated testimony of the complainants MD and JD, in all probability must have regarded them prima facie as witnesses of truth and that the verdicts of acquittal can be explained by the jury's rigid adherence to the instructions of the learned judge; namely that they should give the benefit of the doubt to the applicant on those offences where the evidence as a whole pointed to the possibility that they had not occurred either at the time or in the circumstances particularized in the relevant count. I refer in particular to the joint judgment in the case of R v. J (No.2), supra at p.51. It thus seems to me that the jury's verdict on the "rape" count can be explained by a lack of satisfaction on the issue of penetration and that a rational explanation for the verdicts on counts 11, 12, and 13 is to be found in the fact that the jury were not satisfied that the particular events described by CD had occurred either at the time or in the circumstances that she had recounted. But this does not mean, as I have said, that the jury necessarily regarded either MD or JD as generally untruthful witnesses. Indeed, in this case where there was much evidence to suggest that a guilty sexual relationship existed between the applicant and the two complainants, it is highly probable that the jury regarded their evidence generally as credible and reliable, as, indeed, is reflected in their preparedness to act on the complainants' uncorroborated testimony albeit in the face of strong directions given by the judge. Nor am I persuaded that the jury's verdicts demonstrate that they misled themselves by seeking corroboration of the accused's evidence as a precondition for returning a verdict of acquittal. That submission, in my view, flies in the face of the careful directions given and invites this Court to speculate on a basis which, in my view, cannot be found to exist.

96. The other ground argued by Mr Tehan was that this Court should regard the verdicts as unsafe because of the long delay between the commission of the offences and the lack of corroboration. It necessarily follows from what I have already said that these were matters which called for careful directions, which were given in this case. Of course, in cases like this where there has been a long delay carrying with it the inevitable prejudice, of which I have spoken, to the accused, an appellate Court must satisfy itself that the trial judge has, by direction, drawn the dangers to the jury's attention and given them the warnings which the law requires.

99. For the reasons stated, I am satisfied that the judge's directions fulfilled those criteria and, that satisfaction having been achieved, there can be no basis for contending that the verdicts are unsafe and unsatisfactory on the grounds contended.

102. I would, accordingly, dismiss the application for leave to appeal against conviction.

105. In so far as sentence is concerned, it is sufficient for me to note that no specific error has been made out. It was contended, although, as I perceived it, not strongly by Mr Tehan, that his Honour had given undue weight to aspects of specific deterrence. In my view, his Honour did not, and indeed the sentences which he imposed demonstrate this. Indeed, I think I should say the individual sentences imposed in this case are very merciful. The victim impact statements which were before his Honour demonstrate the misery which the applicant's conduct, engaged in in breach of the trust imposed in him, has wreaked upon its victims. Notwithstanding the good record of the applicant and the fact that there has been a long delay between the commission of the offences and the imposition of sentence, it seems to me that the applicant can count himself extremely lucky not to have received a sentence longer than the one which he did. Although it would not be appropriate for this Court in this case to impose any sentences other than those which the learned judge has imposed, it seems to me that the sentences which were imposed were at the very low end of the range of penalties open to his Honour.

108. I would, therefore, dismiss the application for leave to appeal against sentence.

122. The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are dismissed.