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[2005] VSCA 140
Court of Appeal (Vic)
2005-06-02
CHARLES and EAMES, JJ.A. and BYRNE, A.J.A.
Original judgment source is linked above.
CRIMINAL LAW - Verdicts not unsafe and unsatisfactory - Verdicts of guilty not inconsistent with verdicts of not guilty - Sentence - Director's appeal - Sentences inadequate - Appeal dismissed notwithstanding - Delay - Respondent released following completion of sentence.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 Having read the reasons for judgment prepared by Byrne, A.J.A., I agree that the application for leave to appeal against conviction should be dismissed, substantially for the reasons his Honour gives.
2 Two principal grounds were argued in this application. The claim that the verdicts of guilty on counts 2, 3, 6, 7, 8, 9, 10 and 11 are unsafe and unsatisfactory requires this Court to scrutinise the evidence called by the Crown and make its own independent assessment of the evidence; see M v. The Queen[1]. As was there said, in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. Having carefully read the evidence of Ms O'Callaghan, together with the supporting medical evidence, I am not left in any doubt that there was sufficient material before the jury to entitle them to convict the accused, and accordingly that the verdicts of guilty are neither unsafe nor unsatisfactory.
3 I reject the submission that the verdicts of guilty are inconsistent with the verdicts of not guilty on counts 1, 4 and 5. The relevant general propositions on a claim of inconsistency are to be found in MacKenzie v. The Queen[2]. In my opinion, the verdicts of guilty were supported by the evidence of Ms O'Callaghan, together with other independent evidence such as that of her father and medical staff who had treated her injuries. The verdicts of not guilty related to allegations which were not included in the complainant's first statement to the police and were understandable given the whole of the relevant evidence. The differing verdicts to my mind establish no more than that the jury undertook their task conscientiously and assessed the consistency and reliability of the evidence as it related separately to each count.
4 As to the Director's appeal, I also agree that the appeals should be dismissed.
The respondent had been found guilty of a series of violent and cowardly attacks upon his then partner over a period of some years. He had shown no remorse for his conduct, pleaded not guilty and still maintains his denials in relation to this conduct. Against this, however, the respondent had no prior convictions and stood for sentence as a person of good character. The conduct alleged had occurred over a period which ended in November 2001, more than three years before his trial commenced. In this Court the Director accepted that there had been periods of unreasonable and unexplained delay in bringing the matter to trial. He put it, however, that, notwithstanding that the respondent was not in custody at the time this appeal was heard, the sentence imposed does not meet any reasonable test for an appropriate sentence and was manifestly inadequate.
5 In my view the sentence imposed was certainly inadequate, having regarding to the seriousness of the offences involved, and in particular that of intentionally causing serious injury (count 6) for which the maximum penalty is 20 years' imprisonment. Indeed the sentence does seem to me in all the circumstances manifestly inadequate. With some hesitation I would, however, dismiss the appeal substantially for the reasons given by Byrne, A.J.A., and in particular because of the respondent's prior good character, his prospects of rehabilitation, the fact that he had been released from custody before the appeal was heard, and because of the long delay involved in bringing these matters to trial.
6 In the judgment of Gaudron, Gummow and Kirby, JJ. in Mackenzie v. The Queen[3] their Honours concluded that an appellate court would generally reject an appeal based on contentions of inconsistency in verdicts if there was a proper way in which the verdicts might be reconciled. As their Honours observed, one possibility which the appellate court ought take into account in explaining an apparently inconsistent verdict is that the jury adopted a merciful approach. In my view, that explanation is clearly open for the acquittal on count 4, which was alleged to have occurred at the same time as counts 2 and 3, on which there were convictions.
7 Count 4 involved a particularly vivid allegation of an assault committed by the applicant urinating on the victim's face. Not unreasonably, Mr Lasry contended that if the jury rejected the credit of the victim as to such a vivid allegation, it is difficult to see why they would not equally reject her allegations of the events of counts 2 and 3, which were said to have occurred at the same time. In my opinion, one explanation is that the jury took the view that the allegation was so gross that they would spare the applicant a conviction on that count but not on the two others, the victim's account of events having been accepted.
8 On the other hand, the suggested inconsistency in verdicts might simply reflect the fact that the jury thought that the victim was prone to exaggeration, so that, whilst generally accepting her account, the jury would be careful to allow for exaggeration. That could readily explain why in some instances, but not others, the jury might retain a reasonable doubt. A jury tasked with assessing multiple events which occurred over a long period of time, in a domestic context, might well be cautious in accepting without reservation the evidence of a witness, who, as in this case, had been assisted by police to remember the events by being given access to medical records of her attendances with injuries throughout the relevant period. There were inconsistencies exposed as between the accounts given to the doctors at the time, to the police in her statement, and in the victim's evidence to the court. However, the jury was entitled to conclude that despite those inconsistencies the victim was nonetheless an honest and generally reliable reporter, albeit sometimes inaccurate in her recollection of events. It is significant as to counts 2 and 3, for example, that there was independent support for her account of her arms being pushed up behind her back by the applicant. Not only did police attend the scene, shortly after the victim had fled the house and phoned her parents asking them to collect her, but the next day the victim sought an intervention order at court. Furthermore, the day after the events her father had observed his daughter having
apparent pain and difficulty in lifting her arms in order to get dressed, and requiring the assistance of her mother to do so. Whatever errors and inconsistencies may have emerged in cross-examination of the complainant about the events of counts 2, 3 and 4, a conscientious jury might well have sifted through the evidence and reached satisfaction as to where the truth lay. They would no doubt have been assisted in that task by virtue of the fact that the applicant himself did not give evidence and relied on his account in the records of interview, in which he generally contended that nothing at all, of any description, such as the complainant alleged, had occurred on any of the occasions with which he was charged. He could offer the police interviewers no rational explanation for the many occasions on which the complainant attended medical clinics with injuries, some serious, substantially consistent with her allegations of assault.
9 In my opinion, upon similar analysis, the acquittals on counts 1 and 5 can also be readily explained in a way that casts no doubt on the integrity of the jury verdicts on the other counts. I reach that conclusion notwithstanding the persuasive force of the interpretation offered for the jury verdicts by Mr Lasry in his helpful and very thorough review of the evidence.
10 I agree with Byrne, A.J.A., for the reasons he has given, that the convictions in this case do not arise in circumstances of unexplained inconsistency with the verdicts of acquittal, and nor does the evidence cause me anxiety that the convictions are unsafe and unsatisfactory. I therefore agree that the application for leave to appeal against conviction ought be dismissed.
11 I also agree with Byrne, A.J.A., for the reasons he has given, that the Director's appeal ought be dismissed.
12 In October 1995 the complainant, Kathleen Therese O'Callaghan, commenced living with the applicant, Tony Robert Martin, in Mooroolbark and later in Kilsyth and then in Mt Evelyn. It was in the house which they purchased together in Mt Evelyn that occurred most of the incidents with which we are here concerned.
13 In short, the complainant made allegations of violence at the hands of the applicant occurring at that address between 15 July 1998 and 17 November 2001 which are the subject of Counts 2 to 11 in the presentment. The first count was an allegation that he intentionally caused her injury on or about 12 March 1997 at Kilsyth.
14 Following a trial in the County Court, the applicant was on 16 December 2004 convicted of eight of the counts and was found not guilty of the remaining three. The counts of which he was convicted were as follows:
Count 2: At Mt Evelyn on or about 15 July 1998 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
Count 3: At Mt Evelyn on or about 15 July 1998 unlawfully imprisoned Kathleen O'Callaghan and detained her against her will.
Count 6: At Mt Evelyn on 17 January 1999 without lawful excuse he intentionally caused serious injury to Kathleen O'Callaghan.
Count 7: At Mt Evelyn on 27 January 1999 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
Count 8: At Mt Evelyn on 19 March 2000 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
Count 9: At Mt Evelyn on 19 February 2001 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
Count 10: At Mt Evelyn on 5 August 2001 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
Count 11: At Mt Evelyn on 17 November 2001 without lawful excuse he intentionally caused injury to Kathleen O'Callaghan.
15 For these offences the applicant was sentenced on 7 February 2005 to the following terms of imprisonment. For ease of reference I have also set out in each case the maximum term of imprisonment available at the time.
16 After having regard to concurrencies, the total effective term of imprisonment was 18 months and 21 days. The Court fixed a non-parole period of four months. Consequential orders were made.
17 The applicant seeks leave to appeal against the convictions. The Director appeals against the sentence on the ground of inadequacy.
18 There are three grounds proposed for the appeal against conviction. Only two of these were argued before us.
Verdicts unsafe and unsatisfactory
19 The point taken here is that the verdicts in respect of Counts 2, 3, 6, 7, 8, 9, 10 and 11 were based substantially upon the evidence of the complainant, which evidence contains significant discrepancies with her prior statements and with the medical evidence.
20 In considering this ground, I bear in mind that it is primarily for the jury to weigh the evidence in the light of discrepancies of the kind suggested. It was not put that any direction of his Honour on this topic fell short of what was required. Moreover, it is apparent from the three acquittals that the jury weighed the evidence with care and were prepared not to act upon the oath of the complainant where they thought this was not appropriate.
21 I will not undertake an extensive review of the evidence in this case which I have examined with care. It is necessary to observe however that the applicant, who denied the assaults in his records of interview of 30 March 2002 and 13 November 2002, gave no sworn evidence. In his interviews, however, he did accept that his relationship with the complainant was a turbulent one. He admitted that on at least one occasion he had become angry and damaged property, that there were incidents where he and the complainant shouted at each other to such an extent that the police had to attend and that there were three occasions on which the complainant obtained an intervention order against him on the grounds of violence. He agreed in his March interview that they had had physical fights over the period that they were together, in the course of which things were thrown and, further, that there were occasions when she tried to restrain him and he had tried to restrain her. He said he thought that there were injuries arising out of that. Nevertheless, throughout the interview he denied the charged acts of violence.
22 The allegations in Counts 2 and 3 were that the applicant on 15 July 1998 assaulted the complainant, throwing her to the floor and pushing her arms up her back and then prevented her from leaving the house. The applicant denied these incidents in his record of interview. Her evidence derived some support from that of her father, from the police attendance and from the fact that she obtained an intervention order against the applicant on the following day. There was no supportive medical evidence of her injuries.
23 The main thrust of the attack on these convictions was directed to casting doubt upon the credit of the complainant, relying upon discrepancies between her evidence and her police statements. It was pointed out that the jury acquitted the applicant of the assault referred to in Count 4, which she said had occurred on the same occasion. It was put that, if the jury were not satisfied to act upon her evidence with respect to the assault which she described in graphic detail, they ought not to have acted on the evidence of the same witness with respect to Counts 2 and 3.
24 I am entirely unpersuaded by this submission. It was open to the jury to accept part only of her evidence. It was open to them to view with caution and reject her account of an event which first appeared in her second statement. It was open to them to consider that a conviction on two more serious counts arising out of the events of this day was sufficient.
25 Count 6 concerned an incident of extreme violence, which the complainant said occurred on 17 January 2001. She told of being dragged down the hallway and into the bedroom, of being thrown onto the bed where the applicant tried to strangle her, of having had her head smashed into the wall and of being kicked with steel-capped boots while she lay cowering in a corner. She said that she then left the house and telephoned his mother who went with her back to the house. The mother went inside and retrieved some clothes and then drove her to Maroondah Hospital. She spent three days in hospital with broken ribs, a punctured lung and bruising. She returned home where the applicant was still living on 20 January 1999.
26 The position taken by the applicant in his records of interview was that he was not at the house on this occasion. The first he heard of the incident was when the complainant telephoned him from hospital. He said he was not present when this incident occurred. His mother did not give evidence.
27 Unlike the jury, I have not had the benefit of seeing the videotape of the interviews. On paper his denials did not seem very convincing. In any event, it is the task of the jury to form a view as to the reliability of the Crown evidence on this incident and to weigh up the inconsistencies which counsel for the applicant extracted and presented to them. They were entitled to reject his denial of the incident and to accept the evidence offered on behalf of the Crown. I reject the attack on this conviction.
28 Counts 7, 8, 9 and 10 concern assaults which the complainant described as having occurred on 27 January 1999, 19 March 2000, 19 February 2001 and 5 August 2001 respectively. On each occasion her account was supported by medical evidence of contemporaneous injuries which she said were caused by the applicant. He denied this but offered in his records of interview no explanation for these injuries. On this matter, the applicant bore no burden of proof, as the judge directed the jury. Again, the evaluation of the evidence of the complainant bearing on these incidents is a matter for the jury. I see no reason to disturb their conclusions.
29 The last count, Count 11, which was referred to as the coffee table incident, was said to have occurred on 17 November 2001, two days before her first statement. The complainant said she told the applicant that she had been seeking legal advice and that he had been drinking. She said that he threw a glass towards her, flipped over a coffee table and then the couch on which she was sitting. He then dragged her by the hair outside the house and locked the door behind her. The police officer who attended said that he found her in a foetal position, whimpering. The police went into the house but were unable to rouse the applicant who was asleep in the main bedroom. The injuries of the complainant were described by the medical practitioner who treated her and were verified by photographs.
30 The applicant was not interviewed about this incident for some four months. He then denied the assaults, saying that he remembered only his drink spilling, pushing the coffee table and going to bed.
31 In the circumstances, the decision of the jury to convict on this count is not at all remarkable. The suggestion that the conviction was unsafe or unsatisfactory has not been made out.
32 I conclude, therefore, that the first ground, namely that the convictions on Counts 2, 3, 6, 7, 8, 9, 10 and 11 were unsafe and unsatisfactory, has not been established. I am not persuaded that, after making a full allowance for the advantages enjoyed by the jury, there is a significant possibility that the applicant has been wrongly convicted.
33 Second, it was put that these convictions were inconsistent with the not guilty verdicts on Counts 1, 4 and 5. I see no inconsistency in the relevant sense. It was open to the jury to have a doubt about the evidence of the complainant on some matters and yet to accept it on others. There are circumstances which may explain the acquittals. The complainant did not include in her first statement the incidents which formed the basis of Counts 1, 4 and 5. In the case of Counts 1 and 5, her evidence was inconsistent with earlier statements made by her. In the case of Count 1, the incident was said to have occurred in March 1997, nearly five years before her formal complaint to the police. In the case of Count 4, it may also be that they were satisfied with returning a guilty verdict for the two more serious counts arising out of the events of 15 July 1998. The evidence against the applicant on the counts of which he was convicted was, in my assessment, powerful notwithstanding that some of the counts shared the deficiencies which I have outlined with respect to the acquitted counts. Far from offending logic and common sense, I can well understand a jury, conscientiously discharging their duty, reaching the conclusions which this jury did.
Director's Appeal against sentence
34 This is a more troubling matter. The verdicts show that the respondent (as I shall now call Mr Martin) has, over a number of years, committed a series of gross and cowardly crimes against his domestic partner. He shows no remorse and maintains his denial that the events occurred. The victim impact statement of the complainant is a very moving document showing how his conduct has affected her.
35 I have read the sentencing remarks in which the trial judge notes the prior good character of the respondent, his difficult childhood and his prospects of rehabilitation. Doubtless these are all matters which weighed heavily in his decision to treat the respondent with considerable leniency. No specific sentencing error was alleged. This Court will only reluctantly interfere to increase a sentence imposed by a judge who has, after all, had the opportunity to reflect on his or her task with an unrivalled familiarity with the events and people involved. Add to that, in this case, that the respondent was released from custody upon completion of his sentence on 12 April 2005.
36 I am, nonetheless, troubled by the sentences. I cite, by way of example, Count 6 for which a sentence of 12 months imprisonment was imposed for intentionally causing serious injury, a crime which carries a maximum penalty of 20 years. Nor can this be explained by the circumstances. The incident described by the complainant is a very serious example of this crime: her injuries were severe; the conduct of the respondent brutal. To my mind the community might properly expect that a person convicted of such an offence, even a person of prior good character, should be visited with a substantial term of imprisonment. I am satisfied that the sentence for this conviction alone, and even more so against the appalling conduct to which this young woman was subjected over some three years, would indeed shock the public conscience.
37 Three factors, however, lead me to the conclusion that I should not impose the more severe sentence which the respondent would otherwise deserve. The first is that this matter has been hanging over his head for an inordinate time, a delay which is only partly explained by his pleas of not guilty. He was first interviewed in March 2002, over three years ago. At the conclusion of his second interview in November 2002 he was told he would be charged on summons and, notwithstanding this, it was not until July 2003 that he was formally charged and so that the legal process then took its course. This itself is a punishment which the respondent has suffered in addition to any sentence of imprisonment.
38 The second factor is that the respondent was discharged from custody having completed the sentence on 12 April 2005. Since then, he has resumed his employment. To require him to return to prison to complete an enlarged sentence would, in these circumstances, be to expose him to two separate punishments for the same offence.
39 Furthermore, he has been of good behaviour since he and the complainant parted company in November 2001. In making this observation, I do not overlook the disturbing allegations that there have been threats to the complainant and that she has been beset by a person whom she believes to be the respondent or someone at his instigation. The Director accepted before this Court that in the absence of evidence of these matters we should not have regard to them. We have not been told of any subsequent violent conduct on his part. The pre-sentence report concludes that the respondent is at a low risk of re-offending. There is every prospect of rehabilitation.
40 In the circumstances I would dismiss both the application for leave to appeal against conviction and the Director's appeal against sentence.
[1] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492, 493 and 494.
[2] (1996) 190 C.L.R. 348 at 365-8.
[3] (1996) 190 C.L.R. 348, at 367.