R v Maple [1999] VSCA 52

Court of Appeal (Vic)|1999-04-27|Before: TADGELL, ORMISTON and CHERNOV, JJ.A.

The applicant gave no evidence upon his trial but did participate in an interview with police, the record of which was tendered in evidence on behalf of the Crown. The interview was lengthy and in the course of it the applicant admitted that he did have sexual intercourse with the complainant at her unit in the early morning of 12 April, but insisted that it was consensual.

There are three grounds relied on in support of the application for leave to appeal against the applicant's conviction. I shall deal with them in the order in which they were argued. The first was that the verdicts of the jury - not guilty on count 1 and guilty on count 2 - were inconsistent the one with the other to an extent that they should not be allowed to stand. It was submitted accordingly that this Court should set aside the conviction on count 2 and enter a verdict and judgment of acquittal. It was submitted in support of this ground that there was nothing in the evidence to distinguish between the two counts and that, since the jury presumably had a reasonable doubt as to guilt on count 1, they should have had and given effect to a similar doubt in respect of count 2. Why, it was argued rhetorically, should the jury not be satisfied on the complainant's evidence that the applicant was guilty on count 1 but satisfied on her evidence that he was guilty on count 2? There was, it was submitted, nothing to distinguish between the two counts on her evidence. It was, to put it crudely, all or nothing, it was submitted: guilty on both or not guilty on both. There was a difficulty, it was said, in making sense of the two verdicts. Counsel conceded that the jury were entitled to accept part of the account given by the complainant and to give effect to part of the account given by the applicant according to his recorded interview. It was said, however, that one cannot be certain what the thought processes of the jury were in coming to a conclusion that they did. This was the subject of a remark by counsel for the applicant immediately after the verdict was announced. Counsel was disposed to contend even then that the two verdicts, side by side, were an embarrassment. The judge, however, provided what appealed to him as an explanation, saying that he supposed that the jury were in doubt whether the applicant actually penetrated the complainant on the first occasion described by her but had no doubt, because of his admission, that he had had sexual intercourse, and attributed that to the second occasion described by the complainant.

For myself, I have no difficulty in reconciling the two verdicts. One could understand that the jury might have had a doubt in respect of what the complainant described as the first act of penetration of her, having regard to his apparently imperfect erection. They might have had a doubt that he had entered her, and I think they might also be supposed to have had a doubt of his not believing that he had her consent. The second occasion that she described, however, really leaves very little room for doubt if the jury were prepared to accept her evidence about it. Having regard to the applicant's admission that he did penetrate her, it would not be surprising if the jury did indeed attribute his entry to the second occasion described by the complainant.

I might say also that, in the course of his charge, the learned judge directed the jury, without objection on the part of counsel for the accused, that different verdicts were indeed possible on the two counts, and his Honour instructed the jury to examine the evidence in the case very carefully if they were to find in fact that there were two penetrations. There is no reason to suppose that the jury did not observe that direction and give effect to it, with the result that there was one verdict of not guilty and one of guilty. In my opinion this ground of the application fails.

The next ground argued, which was in fact ground 1 as set out in the notice of application, was that the trial judge wrongly ruled admissible evidence of recent complaints which was merely reiteration, despite objection. This ground refers to the admission by the judge of the evidence of Constable Greer, and that of Sergeant Wellington, of the complaints made to them by the complainant in circumstances that I have already described. Counsel for the applicant before us conceded that the Crown could lead evidence of multiple complaints when it was part of the Crown case to prove that the complainant was in a state of distress after having alleged rape. Hence it was conceded that the evidence of Brownfield that the complainant had telephoned him some time after 5 a.m. on 12 April, complaining of rape by the applicant, was admissible. The submission was that the evidence of the two police officers was objectionable because it went not to any matter of proof of distress on the part of the complainant but was led as a narrative of a series of identifications to third parties of the alleged rapes. It was said that a line should have been drawn under the evidence of Brownfield and above the evidence of the two police officers, excluding their evidence. To admit their evidence, it was submitted, was to allow undue emphasis by the complainant of her identification of the applicant and it allowed inappropriate repetition, and nothing else, of Brownfield's evidence.

I think the answer for the Crown to that submission was correct. There is no rule of law that there may be evidence of no more than one complaint in circumstances such as those in this case. So much appears, I think, from the decision of the Court of Criminal Appeal in R. v. Freeman [1980] V.R.1 at 8.

The judge in this present case was prepared to treat the complaints made to the two police officers as having been made at the first reasonable opportunity after the offence. In the course of argument the enquiry arose: how can there be more than one "first reasonable opportunity" to make complaint? One answer that occurs to me is that "first reasonable opportunity" in this context refers not numerically or quantitatively to a fixed point of time but rather qualitatively, if you like, by reference to the nature of the complaint and the circumstances in which the complainant was placed when making it. That, I think, is consistent with what appears in Freeman's Case, and the cases to which it refers, and with the decision of the Court of Criminal Appeal in R. v. Lazos (1992) 78 A.Crim.R. 388, especially at 396. Accordingly, I think that there is no substance in this ground.

The final ground was that the judge failed in his charge, after he had been requested by way of exception to the charge, to give what was called a "full Faure warning". This refers to the kind of warning which the Court of Criminal Appeal, in Director of Public Prosecutions v. Faure [1993] VicRp 87; [1993] 2 V.R. 497, decided was mandatory in a case where the course of justice required it. Here it is desirable to set out what the learned judge told the jury in the course of his charge, to this extent:

"There are two counts of rape, the Crown alleges that the accused penetrated the complainant twice. The accused admits once. You must examine the evidence in this case very carefully if you are to find in fact that there were two penetrations. Remember that a different verdict is possible on the two counts. The complainant, you might think, is a rather unfortunate person, but the law protects a woman's sexual privacy even if she is an alcoholic who has consumed a quantity of liquor on the occasion in question and is shown to have an uncertain memory as to some events and is a person under psychological supervision: even if she is an unstable person. Nevertheless, where the complainant is of the type just as described, you should of course scrutinise her evidence with extra care before accepting it. Bear in mind too, the economic argument. We know that the prosecutrix is poor, had lost money on the night in question and was well familiar with the Crimes Compensation procedure. In addition that she had a bone to pick with the accused over the situation that she thought was arising from a letter he had written to the Housing Commission, causing her trouble."

It was submitted on behalf of the applicant this morning that a Faure warning was necessary because of a number of qualities that the complainant's evidence demonstrated rendering it potentially unreliable. These, as counsel set them out in his written outline, were that the complainant was an alcoholic, was previously a psychiatric patient who underwent shock therapy, was under psychological supervision, that she had problems with her memory, that she had been involved in violent relationships in the past, that she had made multiple Crimes Compensation Tribunal applications, that she had lost $110 playing poker machines while being dependent on social security, that she had been drinking on the night in question, and that she had a motive to be angry with the applicant - by which I take it is meant that she expressed herself to have been angry with the applicant on the morning of 11 April.

Reference to the passage of the charge which I have just set out shows that all of these matters were brought to the jury's attention, except that she had been a psychiatric patient who underwent shock therapy. The judge did, however, as will be seen, remind the jury that the complainant was under psychological supervision, and indeed that was evident because she had, only the morning before the incident in question, gone with the applicant to her psychologist.

Now, if one looks at the cases referred to in Faure's Case as providing authority for the necessity for a warning in the necessary case, one finds that they are all cases which in one way or another render the evidence of a particular person dangerous to accept against the accused in the absence of some specific warning telling the jury why it would be dangerous to accept it without affording it particular scrutiny. In those kinds of cases, so far as I can see, it is important that the jury be instructed, when the circumstances are such that the parlous quality of the evidence might not be within the ability of the jury to assess for themselves, and the full significance of the shortcomings of it may be apparent to a judge but not necessarily obvious to the lay mind: see, for example, R. v. Spencer [1987] UKHL 2; [1987] A.C. 128 at 135 and R. v. Miletic [1997] 1 V.R. 593 at 605. In this case before us now, the undoubted shortcomings of the complainant as a witness were more or less obvious, I should have thought, to a layman such as a juror having to undertake a consideration of her evidence. There was in substance nothing by way of a concealed trap about her evidence, nothing about her in the nature of, say, an accomplice or a police informer, or any other category which tended to make the evidence of the complainant dangerous to accept in the absence of a clear warning of the kind which Faure authorises and requires. Indeed, when all is said and done, counsel for the applicant before us conceded that the only ingredient of the Faure warning that was omitted in this case was a warning that the jury should seek supporting material before accepting the relevant evidence at its face value. There was no need for that kind of a warning at all because clearly there was supporting evidence, and it would have done the applicant no service had the judge drawn attention to it: I refer to the physical damage to the complainant and indeed to the applicant, especially the bruising to her, which tended to support her evidence.

I am of opinion, therefore, that the judge's declining, on being asked, to give a Faure warning was not an error on his part.

I turn to deal briefly with the Crown appeal against sentence. The maximum sentence for rape is 25 years' imprisonment. This sentence of three years with a minimum term of six months was on any view a very, very modest one. The crime of rape is rightly regarded as one of the most serious in the criminal calendar. The learned judge recognised that it is a serious crime, but, for reasons which are not very clearly explained - for his Honour devoted only just under two full pages to his sentencing remarks - the judge regarded this case as deserving of very small punishment. The criticism of that in this Court, on behalf of the Crown, was that in essence the judge paid too little regard, if any regard at all, to matters personal to the complainant. If her evidence was to be accepted, she, early on the morning of Saturday 12 April, extended a kindness to the applicant by allowing him in to sleep in her unit, in return for which she received a raping. This was a crime committed, it was said, in circumstances which required substantial punishment, and it was not, at least without proper explanation, to be seen as a crime towards the lower end of the range, as the judge described it.

I agree with the submission for the Crown that this is a sentence which cannot be sustained.

The applicant is 44 years of age. He has no prior convictions. He has what the judge called an unfortunate background, and he seems clearly enough to suffer at present from a parlous psychological state. The learned judge found that, though the applicant has no clear-cut personality disorder, he has some elements of a borderline personality disorder and elements of a dependent personality disorder and also of a paranoid personality disorder. He needs treatment. It was submittedon his behalf that he would be in a better position to receive treatment outside prison than within it. That may or may not be so, but I am not satisfied that the submission that the judge did not err is made good. Undoubtedly the applicant will find a gaol sentence very onerous, as the judge stated. He is going to find it difficult not least because he maintains, even to this very day, that he is innocent of the crime of which the jury found him guilty. His contention remains that the act of intercourse in question was the last of a long series of acts of consensual intercourse. That, however, was not the way the jury saw it, and the sentence ought to reflect the way the jury saw it and to do so more thoroughly than the sentence imposed by the learned County Court judge.

I am of opinion that the sentence bespeaks error and that it should be set aside. I would, in place of the sentence imposed, impose a sentence of four years' imprisonment with a minimum term of two years.

I agree. I add only that, although I agree that the head term now to be imposed should be four years, it does not follow that such a term would ordinarily be appropriate for this kind of offence. The Court in the present case is constrained by the rules laid down relating to appeals by the Director of Public Prosecutions.

I agree that the application be refused for the reasons given by the learned presiding judge. I also agree that the appeal by the Director be allowed and that the sentence proposed by the learned presiding judge be substituted for the sentence imposed by the learned sentencing judge.

The order of the Court will be in accordance with the following minutes:

Application for leave to appeal against conviction dismissed.

Sentence below set aside. Order in lieu that the applicant be sentenced to be imprisoned for four years. Direct that he serve a period of two years before becoming eligible for release on parole.

Declare that 191 days of the said sentence be reckoned as already served and order that the making of the said declaration and its details be entered in the records of the Court.

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