R v K R M [1999] VSCA 91

Court of Appeal (Vic)|1999-06-09|Before: PHILLIPS, BATT and BUCHANAN, JJ.A.

The applicant also contended that in order to establish the commission of an offence under s.47A the prosecution was required to prove at least three individual offences in a manner that would support at least three individual counts. It was submitted that the evidence could not satisfy that requirement, and accordingly the count should not have been left to the jury. An alternative ground of appeal was that the trial judge erred "by failing to direct the jury that they would have to be satisfied that three identifiable acts of sexual penetration had occurred."

Section 47A creates an offence which may offend the sensibilities of an experienced criminal lawyer. Lack of particularity in a presentment and in proof can result in unfairness, for it largely deprives the defence of the ability to test the complainant's evidence against a context of surrounding circumstances, and, as Kirby, J. pointed out in KBT v. The Queen, at 432, it may "result in a trial involving little more than accusation and denial". If an accused is reduced to a general denial in pleading his defence, he is precluded from raising more specific and effective defences, such as the defence of alibi. See S. v. The Queen, above at 275, per Dawson, J. Nevertheless, in my opinion that is a necessary result of the provisions of s.47A. Section 47A(3) expressly dispenses with proof of the matters that enable particular occasions on which offences have been committed to be identified. In particular, and notwithstanding counsel's submission to the contrary, it was not necessary in this case for the jury to identify the occasion of each of the three acts relied upon by the Crown. Nor was it necessary for the trial judge to direct the jury that they had to discern three identifiable acts of sexual penetration. Compare , above, and ; Otherwise it is difficult to perceive any purpose served by the enactment of the section.

A related ground of appeal was that the trial judge erred in failing "to give the jury a propensity evidence direction in relation to counts 1 to 17 in the context of the evidence led in relation to count 18." The applicant contended that the trial judge should have directed the jury not to reason that because the applicant engaged in the sexual conduct the subject matter of count 18, he was the kind of person who was likely to have committed the crime the subject matter of other counts.

The trial judge directed the jury that they were to consider each count separately and were not to reason from guilt of one count to guilt on another count. He said:

"There are, as you well know, 18 different charges, or counts as they are technically called, against the accused, both on the - all on the one presentment as the formal document which is headed 'Particulars of Offence', and you have a copy of it - they are all on that one document called the presentment, and that is done for convenience, as it would obviously be highly inconvenient and absurdly expensive to hold a separate trial before a separate judge and jury on each of these counts.

However, you must not allow convenience to usurp justice. The accused man, [the applicant], is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to some of them or all of them, but it would be quite wrong to say that simply because you found the accused man guilty or not guilty on one count, he must be guilty or not guilty as the case may be, of another.

Each count must be considered by you separately, in the light of the evidence that applies to it. You must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt by the evidence, that the accused is guilty of this crime?' If the answer to that question is, 'Yes', then you would find him guilty; if it is 'No', then of course you would find him not guilty."

A propensity warning is not required simply because there are two or more counts on the one presentment charging similar crimes against the same victim. A warning is only required if some other factor is present which calls for the warning. See R. v. J. (No. 2) [1998] 3 V.R. 602, at 638-43 per Callaway, J.A. Examples of such factors are the admission of evidence of misconduct which is not the subject of a count (R. v. Dolan [1992] SASC 3638; (1992) 58 S.A.S.R. 501; R. v. Beserick (1993) 30 N.S.W.L.R. 510; Pfennig v. The Queen [1995] HCA 7; (1995) 182 C.L.R. 461, at 464-5; R. v. Vonarx, unreported, Court of Appeal, 15 November 1995; R. v. Grech [1997] 2 V.R. 609; Gipp v. The Queen (1998) 72 A.L.J.R. 1012) and the simultaneous trial of sexual offences committed against different victims (R. v. T. (1996) 86 A.Crim.R. 293). The question raised by this ground of appeal is whether the nature of the evidence led to establish count 18 was a factor which required the giving of a propensity warning.

The offences constituting count 18 were committed during the period of six months which ended on 18 March 1992, the 15th anniversary of the birth of the complainant. Other more specific counts of sexual misconduct, including incest, were alleged to have occurred at one time or another during the year to 18 March 1992. It was clear from the complainant's evidence that the acts the subject matter of the incest counts were not the offences on which count 18, the s.47A count, was based. The evidence in respect of the incest counts concerned events identifiable by a precise specification of the places and the circumstances surrounding the offences. No offences were alleged to have been committed after 18 March 1992.

The inclusion of a s.47A count might in a particular case require the giving of a propensity warning because the evidence led to support it is so general that it does "no more than establish a particular kind of propensity" (S. v. The Queen, above, at 276 per Dawson, J.). The evidence in S. v. The Queen might be thought to have been of that kind. The possible dangers of coupling a count under s.47A with other sexual offences specified with particularity were described by Kirby, J. in KBT v. The Queen, above, at 432.

However, in the present case I do not consider a propensity warning was required. Each of the counts and the evidence in support of it occupied its own identifiable ground. The evidence in support of count 18 came at the end of the complainant's evidence, and was readily distinguishable from the evidence relating to the other counts. The jury were directed in clear terms that each count and the evidence relating to it was to be considered separately and the jury were not to find the applicant guilty of one count because he was guilty of another count. As the evidence relating to each of the counts fell into distinct compartments, and was so dealt with by the trial judge in his charge, I am of the opinion that the direction given with respect to the separate consideration of each count was sufficient to prevent the jury reasoning that because the applicant was guilty of count 18, he was the kind of person who was likely to have committed the offence charged in another count. It would appear that the applicant's counsel at trial did not apprehend that the jury might misuse the evidence relating to count 18 for he made no complaint about the lack of a propensity warning. The evidence relating to count 18 lacked particularity, but it did not answer the description given to it by the applicant's counsel of "generalized evidence". It was evidence of individual acts which were clearly distinct from the acts founding other counts.

Other grounds of appeal concerned the trial judge's refusal to allow a copy tape-recording to be put to the complainant in cross-examination.

The complainant said in her examination-in-chief that in October 1992 the applicant

"claimed that he had a tape of me having sex or talking to someone - I don't know. He said that someone had secretly delivered it, anonymously delivered it, to the house and got into his hands ... He said he was going to show - play it to my Mum if ... [I did not] continue having sex with him."

The complainant said that she did not see or hear the tape. In the course of her cross-examination the complainant denied that she had used the technique of threatening others when things were going badly for her and denied that a 32 year-old named Gary had told her she was more than welcome to "crash" at his place at any time. Counsel for the applicant then sought to put to the complainant a tape-recording which counsel said contained statements by the complainant, which were inconsistent with her denials made in cross-examination. Counsel for the Crown objected to this course. During the discussion that followed it emerged that counsel for the applicant was relying upon an unauthenticated copy of the tape-recording. The trial judge said that he was against the application "until you can prove the timing of the tape, can produce the original tape ...".

After the close of the Crown case the applicant's counsel sought and was refused a ruling that he might lead evidence from the applicant of what he heard the complainant say on the tape-recording to prove prior inconsistent statements by the complainant. To the claim by counsel that he was seeking to call evidence simply of prior inconsistent statements going to credit, the judge said:

"Prior inconsistent statements do [go to credit], but here you've got a tape of unknown origin, unknown source, uncertain source, uncertain origin, illegally obtained, in all probability, and my answer remains no."

On this aspect of the application counsel for the applicant rested his case on the submission that the tape-recording was admissible and had been wrongly rejected at trial. It is not clear to me, on reading the transcript, that that is how it was put below. Be that as it may, that is how it was put to us and counsel conceded, in the course of argument, that the grounds of appeal relating to the tape-recording failed if the trial judge was correct in holding that the tape-recording had not been proved to be a recording of a conversation in which the complainant participated. In my opinion his Honour was clearly correct in so holding. Prior to the first ruling no evidence at all had been given in this trial to establish the provenance of the tape. That remained the position at the time the second ruling was made. Thereafter there was some evidence adduced from the applicant in cross-examination as to his making the original tape-recording adventitiously on an answering machine found at a rubbish tip and as to his making a copy. However, in my view that evidence fell short of establishing that an identified tape-recording contained a statement made by the complainant that was inconsistent with her evidence.

A document said by counsel to be a transcription of the tape-recording referred to in the evidence was supplied to this Court. Counsel for the Crown objected that the document had not been proved, and ultimately counsel for the applicant did not persist with his application that we should take it into account.

The final ground of appeal which was maintained was that the trial judge erred "in refusing leave to cross-examine the prosecutrix on her evidence that she had never seen another penis in her life."

The complainant said in the course of her cross-examination that she noticed first on the occasions of the offences committed when she was eight years old and then on the occasions of later offending that the applicant's penis was circumcised. The complainant was asked whether she noticed anything unusual about the applicant's genitalia. She answered:

"I'd never seen another penis in my life so I can't say that anything would have been different to me. I can't answer that. You are saying, 'Was there anything abnormal', well, I'd never seen a penis before, so whatever in front of me would have looked normal."

A medical practitioner who examined the applicant said he had an uncircumcised penis and only one testicle.

The applicant's counsel sought leave to cross-examine the complainant about other sexual activity of hers in order to contradict her claim that she'd "never seen another penis in my life". Counsel said that he wished to question the complainant about alleged sexual activities after her 15th birthday and in the course of which she had had the opportunity, it was asserted, to observe penises other than that of the applicant.

Section 37A of the Evidence Act 1958 provides in Rule (2)(a) that in any proceeding that relates to a charge for a sexual offence, the complainant shall not be cross-examined as to her sexual activities without the leave of the Court. Rule (3) provides, so far as is presently relevant, that the Court shall not grant leave unless it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross-examination as to credit. In the present case counsel for the applicant contended only that the evidence was proper matter for cross-examination as to credit. Rule (4)(b) provides:

"Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded -

(b) as being proper matter for cross-examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant."

In refusing the application the trial judge pointed out that the complainant said, "I'd never seen another penis in my life", that is, she was speaking of her knowledge at the times when she had seen the applicant's penis. His Honour characterized the proposed line of questioning as "equivocal" and said that he did not consider it desirable in the interests of justice to allow cross-examination as to credit on what was "a peripheral matter".

In my opinion the evidence sought to be elicited from the complainant of her experiences as a 15 year-old could not impugn her evidence of her knowledge before she attained the age of 15 years. The evidence did not relate to the complainant's credit in the sense of being inconsistent with her testimony or any prior statement she had made. The evidence could only have affected the complainant's credit if lack of chastity was a reflection upon her honesty. That is the very evidence which the section seeks to exclude.

While counsel for the applicant at the trial contended that the proposed cross-examination would reflect on the credit of the complainant by demonstrating the falsity of her statement that she had never seen another penis, counsel who appeared for the applicant on the hearing of this application submitted that the cross-examination would have shown that the complainant was lying when she said that she had seen the applicant's penis. It was said that if the complainant had seen other penises she would have known that the applicant's penis was not circumcised if he was offending as she claimed. Counsel for the applicant accepted that this was not how the matter had been put below. Suffice it then to say that the application was for an exercise of the judge's discretion under s.37A, and his Honour's ruling is not to be impugned by now advancing an attack upon the complainant's evidence that was not put to the trial judge and upon which he did not rule.

The Parliamentary debates disclose that the section was introduced as a reaction to S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266. In that case the appellant was charged with three counts of carnal knowledge each on unknown dates in separate periods of 12 months. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. The complainant also gave evidence of numerous further acts over a period of two years. She could not recall any details. She could only say it occurred "every couple of months". The Court held that in the absence of any act being identified as the subject of a count, the Crown could not lead evidence which was equally capable of referring to a number of occasions, any one of which might constitute an offence, and invite the jury to convict on any one of them.

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