R v K R A [1999] VSCA 157

"I'm in effect making an application for a discharge of the jury, because if Your Honour was to say there ought to have been severance here because that evidence ... is not corroborative and is mutually inadmissible then an application for severance ... would likely succeed."

46. In this Court, Mr Hardy sought to develop the ground of appeal by submitting that the applicant's trial counsel had been misled into allowing the trial to proceed on the joined presentment upon the faith of statements which the prosecutor had made to the first trial judge to the effect that the evidence of the two complainants "may be" capable of corroborating each other. Mr Hardy agreed, we think, that the prosecutor's request of the trial judge to give a warning to the jury as to the use which they could make of B's evidence of unspecified acts of digital penetration did not logically lead to the result that the Crown had in any way "changed its stance" in a manner which re-opened the issue of severance. He submitted, however, that by the end of the evidence it was quite apparent that, in general terms, the evidence of one complainant was not capable of corroborating the other, that the Crown was so conceding, and that, accordingly, it was not only open to counsel to request his Honour to re-visit the question of severance, but that his Honour should have exercised his discretion in favour of the applicant and, in the circumstances which then existed, discharged the jury. Mr Hardy submitted that his Honour had erroneously exercised his discretion because he was overborne by considerations of procedural convenience rather than by legitimate considerations bearing upon the fair trial of the applicant. He submitted that, although s.372 of the Crimes Act requires a trial judge to exercise his discretion to sever a presentment on the individual merits of the case at hand, it was apparent that his Honour had failed in this case to properly consider the prejudice which had flowed to the applicant as a consequence of the joinder of counts alleging offences against the two complainants where the evidence of each was not capable of corroborating the evidence of the other. He, too, called in aid the considerations to which this Court had referred in the case of T.J.B. (supra).

49. In our opinion the applicant has failed to make out the ground of appeal argued. The fact is that this trial proceeded on the joint presentment after what seems to have been full consideration of the relevant factors by both Crown and applicant's counsel. Full argument had been made on application for severance before the initial judge, during the course of which the Crown had made clear its position that there should be a joint trial whether or not there was "cross-admissibility" of the evidence of the several complainants. The judge ruled that there should be partial severance of the initial presentment but that the trial should proceed on the counts involving R and B. There seems to us to have been good reason for this ruling and applicant's counsel's acceptance of it. Most importantly, the judge's discretion was exercised against the background of the amendments to s.372 of the Crimes Act. Section 372(3) remains in its traditional form and proves, relevantly, that:

"Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment ... the court may order a separate trial of any count or counts of such presentment."

53. By the Crimes (Amendment) Act 1987 (No.81 of 1997), sub-ss.(3AA) and (3AB) were added to s.372. They read:

"(3AA) Despite sub-section (3), and any rule of law to the contrary, if, in accordance with this Act, two or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together. (3AB) The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count."

57. The definition of "sexual offences" included the offences charged in this presentment. One does not need to go to the explanatory memorandum which accompanied the Bill introducing these amendments to understand that their purpose was to modify the rule of practice in this State (indeed in Australia) that allegations of sexual offences committed against different victims should, in general, be separately tried if the evidence in relation to one complainant is not admissible in relation to the others (Sutton v. R. (1984) 152 C.L.R.528 per Gibbs, C.J. at 531, Brennan, J. at 541-3; De Jesus v. R. (1986) 61 A.L.J.R.1 per Gibbs, C.J. at 3, Mason and Deane, JJ. at 6, Brennan, J. at 7). The application of the rule has been justified on a number of bases, predominant among which has been the view that judicial directions cannot realistically avoid the perceived prejudice to the accused and that, in any event, to permit a trial to proceed in the circumstances predicated by the rule is to pay little more than "lip-service" to the principle that, in general, evidence of propensity is inadmissible (cf. R. v. Boardman [1975] A.C.421 at 459, per Lord Cross of Chelsea). However, the fact remains that it was the manifest intention of the Parliament to modify this rule of practice by introducing the amendments to s.372 of the Crimes Act. That fact is borne out by the explanatory memorandum which stated (inter alia) that:

"This provision [inserting sub-ss.(3AA), (3AB) and (3AC) into s.372] is in accordance with the approach of the House of Lords in R. v. Christou [1995] A.C. 596 [sic] and overrules De Jesus v. R. [1986] HCA 65; (1986) 61 A.L.J.R. 1."

61. In R. v. Christou [1997] A.C.117, the House of Lords had answered in the affirmative a point of law of general public importance certified by the Court of Appeal, namely:

"Where an accused person is charged with sexual offences against more than one person and the evidence of one complainant is not so related to that of the other complainants as to render it admissible on the charges concerning those other complainants ... has the trial judge discretion to order that all charges should be tried together, having regard to the provisions of section 4 of the Indictments Act 1915 (as amended) and Rule 9 of the Indictment Rules?"

65. In that case, as in this, the appellant had been convicted of multiple sexual offences committed against two young complainants who were his cousins and, at relevant times, in his care. He was tried on multiple counts contained in the same indictment. Rule 9 of the Indictment Rules was cast in the same form as Rule 2 of the Presentment Rules contained in the 6th Schedule to the Crimes Act 1958; and s.5(3) of the Indictment Act (1915) as amended) was, in all respects, the same as s.372(3) of our Crimes Act. In Christou's Case, as in this case, it was conceded that the joinder was justified by the Rules. In answering the question posed for the House in the affirmative, Lord Taylor of Gosforth (who gave the leading judgment) considered a number of authorities, including De Jesus, Sutton and Boardman (supra) and concluded that the proper approach to the question of severance of multiple counts concerning different complainants was that taken by Lord Lane, C.J. in giving the decision of the Court of Appeal in R. v. Cannon (1991) 92 Cr.App.R. 16 at 23. In summarising his conclusions, Lord Taylor gave his reasons as follows (128-9):

"First, the statutory provisions undoubtedly give the trial judge a discretion. To hold that he must decide the question of severance in a particular way would be to fetter that statutory discretion. Again, in what cases would the fetter apply? To all sexual offences? Or only ... to sexual abuse of children? If so, children of what age? Would such a fetter apply only where children were giving evidence or equally (as here) where mature adults were giving evidence of abuse during their childhood? No satisfactory answer of general application can be given to such questions. Looking specifically at sexual abuse of children ... cases can vary greatly. A defendant may, for example, be indicted for discrete incidents of sexual abuse of different children in different places at different times, so that the allegations in respect of each count are in 'watertight compartments'. By contrast when, as here, the allegation is of a continuous course of conduct in one household involving two or more children over the same period and in similar circumstances, joint trial of all the counts may well be appropriate ... Lord Lane, C.J., in the quoted passage, refrained from specifying the factors a judge should consider when 'taking into account all things he should'. They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family; on the victims and their families; on press publicity; and importantly, whether directions which the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows ... that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately. Approaching the question of severance, as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order."

69. In this case it was, in our view, appropriate that the question of severance of the presentment should have been approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by the statutory amendments in favour of the more pragmatic approach adopted in the case of Christou. Of course it is true that the decision in Christou is not binding on this Court; nor is it correct to assert, as the explanatory memorandum does, that the effect of the amendments to s.372 is to "overrule De Jesus v. R.". However, it is clear from those amendments that courts in this State, when exercising the discretion given by sub-s.(3) of s.372 to order separate trials of several counts alleging sexual offences which are joined in the one presentment, are to be guided by the approach adopted in Christou. The burden of that approach is that severance is a matter for the judge's discretion and that, in exercising it, the judge should bear in mind that juries can be trusted to heed the judge's directions. There can be little doubt that those amendments loomed large in the exercise of the judge's discretion to order severance in the manner which he did, and in the acceptance by applicant's counsel of the judge's decision. There were in this case, however, other factors which, in our view, justified the decision to permit the counts alleging offences involving R and B to be tried together. Quite apart from the fact that these were offences alleged to have been committed by the applicant during a continuous course of conduct against two young girls in his care in the same household, proof of two of those offences against one of the girls depended upon evidence given by the other. It would, we think, have been an unfortunate exercise of the judge's discretion to have required one of the young complainants to have given evidence at two separate trials. Furthermore, it was apparent from the time of the committal proceedings that it was the defence of the applicant that K had colluded with the two complainants to make false allegations against him. That was an issue which was best decided at the one trial and in the presence of the two complainants.

72. We cannot accept the submission made to this Court that there was a "change of stance" by the Crown which rendered the trial unfair and which warranted the late application to sever the presentment, or that his Honour was in error in failing to accede to that application and, thus, in failing to discharge the jury. Although, of course, it is open to the trial judge to sever, or further sever, a presentment at any stage during the trial to prevent injustice, it seems to us to be somewhat spurious to suggest that it was not until the "11th hour" that it became clear to applicant's counsel that the Crown was not intending to allege that the evidence of one complainant was corroborative of the other. The Crown had never asserted that the joinder was warranted on the basis of "cross-admissibility" of evidence; nor had it suggested that the evidence of one complainant was corroborative of the other in its opening address, nor in its closing address. No one had raised the question at the close of evidence. A fair reading of the transcript suggests to us that the matter only came to the mind of applicant's counsel at the trial when the prosecutor asked the judge, in the interests of the applicant, to give to the jury a warning about the evidence of "uncharged criminal acts". It was only when his Honour suggested that he ought to give such a warning that counsel contended that the trial had become unfair for want of proper severance of counts. Whether or not there was merit in trial counsel's approach, it has been submitted to this Court that, on any view, the trial had become unfair to the applicant by reason of the joinder of counts alleging the commission of offences against multiple complainants in circumstances where it was accepted that the evidence of one was not admissible in proof of offences committed against the other. In support of his submission, counsel referred us to various passages in the judgments of this Court in T.J.B. (supra). For reasons to which we have already alluded, we cannot accept these submissions. Furthermore, we do not read the comments of this Court in T.J.B. as by any means compelling the conclusion that the judge was in error in failing to accede to the application to discharge the jury in this case. As we see it, the Court in T.J.B. recognised that the Parliament of this State had intended, by the amendments to s.372 of the Crimes Act, to alter the rule of practice which had previously existed (T.J.B., supra, at 628), and, whilst giving some guidance as to how the court's discretion might now be exercised, was careful not "to circumscribe it by judge-made rules" (supra at 630). Although the Court pointed out that it is usually to be assumed that the jury will comply with directions which they are given by a judge, there are "nevertheless cases where the risk of prejudice is unacceptable" (631). Whilst the Court suggested that such a risk will often be found in the case of offences "of an unnatural character or offences that arouse strong emotions or excite revulsion" (631), it should not, we think, be forgotten that the amendments to s.372 of the Crimes Act are specifically directed towards the joint trial of "sexual offences" and that the experience of this Court is that a large number of such offences tried in this State are offences which involve young children and, consequently, excite emotion and revulsion. Indeed it is difficult to imagine any such case which would not do so. Nor, in our view, should it be lightly assumed that juries are incapable of following instructions given to them by the judge in such cases. This case, as it seems to us, amply demonstrates that proposition, because, in acquitting the applicant on count 5, the jury has obviously heeded the judge's warning to ignore the evidence of "uncharged acts" given by B. In our opinion the presumption in favour of trying jointly sexual offences, contained in s.372(3AA) of the Crimes Act, is predicated upon the assumption that juries will heed appropriate warnings given to them by the trial judge.

75. There will, no doubt, be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed in the amendments to s.372. Each case will necessarily depend upon its own facts and, as in the case of all discretionary exercises, rarely will a decision in one case provide a precedent for another. In this case, there were good reasons, as we have stated, for the discretion initially to have been exercised in the manner in which it was, and nothing which happened in the course of the trial, in our view, disclosed any error on the part of the judge in refusing to further sever the presentment or to discharge the jury. Accordingly the application for leave to appeal against conviction must be dismissed.

78. We now turn to the question of sentence. We have entertained some disquiet, which we raised during the course of the hearing, about the fact that the applicant was charged and convicted of three counts of "maintaining a sexual relationship" with the same girl during a two-year period. We were informed by counsel, however, that the structure of s.47A (as it was at the relevant time) compelled the Crown to charge the three offences because each offence related to separate unlawful acts which attracted different penalties and sub-s.(4) geared the penalty for "maintaining a sexual relationship" to the penalty prescribed for sexual acts upon which the relationship was founded. We have also been told that the section has now been amended to provide a single penalty for the breach of s.47A. On reflection, it seems to us that the presentment was appropriately structured. The matter was debated before the first trial judge who, after hearing argument from counsel, so decided. The trial judge who sentenced the applicant was obviously sensitive to the concerns which we had when we first saw the presentment because he ordered that the sentences which he imposed on counts 1, 2 and 3 were to be served concurrently.

81. The sole ground of the appeal against sentence is that, as a total effective sentence, it is manifestly excessive. That is really an attack on the exercise of the judge's discretion to order cumulation in the manner which he did. In our view there is no basis for attacking this exercise of his Honour's discretion. The depravity and callousness of the applicant's behaviour against these two young girls called for condign punishment. His Honour was justified in cumulating the concurrent sentences which he imposed for the offences committed against B upon the concurrent sentences which he had imposed for the offences committed against R. Not only was the applicant to be regarded as a serious sexual offender, but cumulation was in our view required to mark the seriousness of the applicant's offending against the two separate complainants. No remorse has been shown by the applicant for his offending. Indeed the complainants have now been required to give evidence on no fewer than three occasions and, as the victim impact statements make clear, the two young complainants have suffered greatly as a result not only of the assaults which they were forced to endure at the applicant's hands, but also because of their repeated court appearances. These were matters which the judge did, and was entitled to, take into account, not for the purposes of increasing what was otherwise an appropriate sentence (which his Honour clearly did not do), but to assist him in determining what that sentence should be (s.95(1) Sentencing Act 1991). In the circumstances it seems to us that the sentence imposed was, if anything, merciful.

84. Accordingly, in our opinion the applications for leave to appeal against conviction and sentence should be dismissed.

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