R v Latham [1999] VSCA 132

33. The jury then retired. In the course of what remained of that day and on the following day reference was made to Petty and Maiden v. R. [1991] HCA 34; (1991) 173 C.L.R. 95. Early on the morning of 11 September the applicant's counsel applied for the discharge of the jury, relying on Petty and Maiden. The judge ruled that although the re-examination had been objectionable in that it could be viewed as an attempt to suggest recent invention in circumstances where, having regard to the authorities, that suggestion was not available, the necessity for the discharge of the jury had not arisen, it being possible to deal with the matter adequately by a direction to them. In his ruling the judge said that he was disposed to think that the better time to give the direction was in the course of the charge and that if it was given immediately it might tend to highlight the matter unduly. He said that he would give a direction in the course of his charge and would discuss with counsel later the terms of his proposed direction, but that he was prepared to consider giving a direction immediately if that was desired. Discussion then ensued and counsel for the applicant agreed with the suggestion of the Crown prosecutor that it might well be possible to deal with the matter by agreement reached between counsel about what should be said to the jury at that early stage of the trial. A little later the judge was told by the prosecutor that counsel had agreed on a formula and that it was agreed that he himself should, as soon as the jury returned to court, tell them that the last questions he had asked the complainant before the jury were sent out were based on a misconception by him and that he would not be pursuing the matter any further. This announcement was then made by the Crown prosecutor in the presence of the jury accordingly. The matter was not dealt with by the judge in the charge, it having been agreed by counsel that the preferable course was for the matter to be dealt with simply by the making of the statement by the Crown prosecutor in the agreed terms. Shortly before beginning his charge the judge confirmed with counsel for the applicant that he did not wish any direction to be given.

36. In my opinion there is nothing in the first ground of appeal. No miscarriage of justice has resulted from the judge's failure to discharge the jury. It is not suggested that he did not direct himself correctly as to the test to be applied in considering whether circumstances had arisen requiring the discharge of the jury. In my view, not only was it open to the judge to conclude that the discharge of the jury was not called for but it would have been very surprising if he had acceded to the application. I do not think there was any danger that the jury would treat what was said to have happened at the committal as reflecting adversely on the credibility of the applicant.

39. The second ground - "unsafe and unsatisfactory" - specifies three matters: the acquittal on the count of anal rape; the findings made by the judge in sentencing the applicant; and suggested inconsistencies between the evidence of the prosecutrix and that of the other civilian witnesses and the police.

42. A "separate consideration" direction was given in this case. As to the principles to be applied where verdicts are said to be inconsistent, it is enough to refer to MacKenzie v. R. (1996) 190 C.L.R. 348 at 365-7 and the recent decision of this Court in R. v. Wilson [1999] VSCA 89, without summarising what is there said. In the present case the acquittal on the count of anal rape does not cast doubt on the soundness of the convictions. The acts alleged to constitute the indecent assault and vaginal rape were admitted by the applicant: he said they were done with her consent. He denied anal penetration. The complainant made no complaint of anal rape until some days after the incident. Of course it cannot be said that, in acquitting on the last count, the jury must have disbelieved the complainant's evidence of an anal penetration. The terms of the charge made it clear to the jury that they must acquit the applicant on count 4 even though they thought that he had probably committed that offence provided that they had a reasonable doubt. Mr Coghlan in his written outline rightly submitted that the applicant's argument wrongly proceeds upon the basis that the acquittal on count 4 reflects adversely on the complainant's credit. Mr Salek submits that the complainant gave a clear account of the anal rape and described it as very painful and that she said that it took place at the same time as the vaginal rape. No reasonable jury could, he said, have rejected her account of the anal rape while accepting what she said about the vaginal one. It is noteworthy that on the plea counsel for the applicant made quite a long submission in the course of which he advanced reasons why a jury could reasonably have convicted on the first three counts and acquitted on the last. There were, the applicant's counsel submitted on the plea, two possible explanations of the differing verdicts. One was the simple one that, the touching of the breasts and digital penetration of the vagina being admitted and consent being the only issue as regards those counts, the jury, being satisfied that consent had been negatived, convicted on counts 1, 2 and 3 but acquitted on count 4, where penetration was denied by the applicant. In elaborating this submission the applicant's counsel said that the jury might have relied on the fact that the complainant had always been consistent in her account as regards consent and set against that the fact that she had not always been consistent as regards the sexual acts. The second possible explanation of the verdicts advanced by the applicant's counsel on the plea was that the jury may have accepted the complainant's evidence of an initial penetration of the vagina with two fingers but not been satisfied beyond reasonable doubt of the further incident which she said occurred shortly afterwards, of penetration of the vagina with four fingers and of the anus with the thumb.

45. As to the second matter specified in this ground of appeal, I see nothing in the findings made in the reasons for sentence to cast doubt on the convictions. What Mr Salek relies on here is the judge's statement in his reasons for sentence that he did not accept the complainant's evidence that four fingers were inserted in her vagina or the applicant's evidence that only one finger was inserted and that he would proceed on the basis that two fingers were inserted, and the judge's statement that he was not prepared to find that the complainant sustained, as she said, bruising and scratching to the skin in the abdominal region or that she sustained, as she said, injuries in the vaginal area manifested by a mucous discharge and bleeding and a burning sensation when urinating. The judge referred to R. v. Storey [1998] 1 V.R. 359 and directed himself that these alleged facts, being adverse to the accused, had to be proved beyond reasonable doubt before being taken into account. It does not follow from these observations that his Honour regarded the complainant as an untruthful or unreliable witness; he may have been strongly disposed to accept her evidence even on these points, and have regarded her evidence on these points as probably correct, but not been satisfied, in the light of the evidence as a whole, that those facts were established beyond reasonable doubt. The judge's report suggests that, if anything, he was favourably impressed by the complainant. In contrasting her demeanour with that of the applicant he describes her as quite emotional and tearful, and says that the jury may have been more favourably impressed by her demeanour than by that of the applicant. In any event, while regard might be had to a view on credibility or reliability expressly or by implication taken by the trial judge, we are ultimately concerned with what view a reasonable jury might take.

48. The third matter specified in the ground is inconsistencies between the complainant's evidence and that of the other civilian witnesses and the police. In argument, reliance was also placed on internal inconsistencies in the complainant's evidence and on other suggested inadequacies. The points relied on in this Court were relied on at the trial. They are now substantially set out in the applicant's written outline of argument and many of them are dealt with in the charge. For those reasons I shall not summarise them. It is accepted that they were well and truly canvassed before the jury. As I have said, the judge mentioned many of them in the course of his charge. I have considered the points and do not think that they are such as to make these convictions unsafe and unsatisfactory. I have made my own assessment of, but shall not summarise, the evidence as a whole, although I do mention, as one matter only, the account given by one of the occupiers of the flat (J) of the words and behaviour of the applicant and the complainant when he entered the lounge room just after the alleged offences, and of the injury or mark which she showed him very shortly afterwards, the sighting of which was not challenged in J's cross-examination. The Crown case was in my view a strong one and, notwithstanding the acquittal on count 4, I see no reason to interfere with these convictions on the ground that they are unsafe and unsatisfactory.

51. I can deal with the sentence application shortly. The applicant was 27 at the time of sentence. He admitted the prior finding of guilt already mentioned. On the plea written testimonials were put in evidence and character witnesses were called. The judge also had before him a victim impact statement. In R. v. Schubert [1999] VSCA 25 it was said that, generally speaking, notwithstanding a plea of guilty, previous good character and genuine remorse, a rapist, whether the rape is digital or of a different kind, stands in very grave danger of an immediate custodial sentence. Here there was no plea of guilty, the applicant was not of unblemished character and there was no sign of remorse. The applicant's counsel conceded on the plea that an immediate custodial sentence was appropriate and sought a partially suspended sentence. The maximum available sentence for rape was 25 years. There is nothing to complain of from the applicant's point of view in the sentences passed in this case. In particular the term of the sentence for rape seems to me to be inadequate and the suspension of 15 months of the term seems to me to be unduly merciful. The undue leniency of the present sentence may well be the result of R. v. Soo, unreported, Court of Appeal, 30 October 1997, a decision which received a good deal of attention in the course of the plea made in this case. The present sentence was imposed some months before the decision of this Court in Schubert. That decision shows that what was done in Soo should not be regarded as of assistance in considering what sentences should be imposed for rape in other cases.

54. I think the applicant is fortunate not to have his sentence increased. It is quite inadequate, as regards both the term of the sentence and the extent to which it was to be served as an immediate custodial sentence.

62. I agree with the conclusions of Brooking, J.A. and I would subscribe to his Honour's reasons for reaching them.

The application for leave to appeal against conviction and the application for leave to appeal against sentence each stands dismissed.

(Discussion ensued about the fact that, the applicant having been bailed after serving an additional portion of his sentence, the authorities will have to have regard not only to the pre-sentence detention declared by the judge but also to the additional period of imprisonment served after sentence.)

Eight days' pre-sentence detention declared by the judge and - ?