R v Mitchell [2000] VSCA 54

5. At the outset of the trial application was made to the judge to sever the counts in respect of each complainant, so that there would be not one trial but ten, one for the counts alleged in respect of each complainant. His Honour acceded to that application to the extent of ordering severance of counts 29 and 30, those which had occurred in 1982 to 1983 at East Brighton, but he otherwise refused the application. The trial therefore proceeded in relation to counts 1 to 28. After a trial of some 13 or 14 days, the jury found the applicant guilty, by a majority verdict, of counts 1 to 6 and 9 to 28. After a plea in mitigation had been made on the applicant's behalf, the learned judge on 16 December last year sentenced the applicant to be imprisoned for 12 months on each of the counts on which he had been convicted. There was, after orders for cumulation, a total effective sentence of three years and one month's imprisonment and his Honour imposed a period of one year and one month to be served before the applicant should become eligible for release on parole. Nine days pre-sentence detention were recorded.

8. The applicant now applies for leave to appeal against conviction and sentence. He initially specified eleven grounds of application for leave to appeal against his convictions, and in respect of sentence he claimed that it was manifestly excessive. Of the eleven grounds relating to the application for leave to appeal against conviction, all but four have been abandoned. The first of those remaining alleges that the trial judge erred in failing to order severance so as to effect separate trials of counts 1 to 6 inclusive, counts 7 and 8, counts 9 and 10, counts 11 to 13 inclusive, counts 14 to 17 inclusive, counts 18 and 19, count 20, counts 21 to 23 inclusive and counts 24 to 28 inclusive. Each of the points of severance for which the applicant contended was where one individual girl was complainant.

11. The counts upon which the trial proceeded and in respect of which the judge declined to order severance had a certain commonality about them. Each of the complainants was a young girl, either pre-pubescent or in the early stages of puberty. They were between about seven and about twelve or thirteen years of age at the time of the alleged offences. The applicant was, during most of the period, if not all of it, over which the offences were alleged to have occurred, the superintendent of the local swimming pool. In that capacity he had ready access to young persons at Terang, and a number of the offences were alleged to have been committed at the pool and elsewhere in Terang. About five of the nine complainants deposed to offences committed by the applicant against them at the pool. His modus operandi was to obtain the confidence of these young female persons and, in exchange for some favours, to have what was called "cuddles" with them. About four of the nine were in that category, and in respect of eight of the nine what he did in various forms was to insert his hand inside the underclothing of the children and to interfere with their private parts. I think it is unnecessary to go into much more detail about it than that, but the story was a common one, save that there were variations such as that some of the offences were alleged to have been committed at the applicant's horse stable, some at his house, some in a motor car, one at least at a hotel in Terang and one at the property of one of the complainants' parents. There was also in one case an allegation that the applicant interfered with one of the complainants while she was up a ladder picking fruit at a farm and that he interfered with her sexually on the way home in a motor car. Those two offences were those alleged in counts 7 and 8, in respect of which there were acquittals. There was, in the case, I think, of two of the complainants, an allegation of sexual penetration, and there were two occasions on which it was alleged that the applicant forced or attempted to force the complainant to kiss him either on the lips or on the penis.

14. The judge, having considered generally the nature of the evidence which the Crown desired to lead, acknowledged the difficulty with which he was faced in deciding whether to sever or not to sever, but, having cited a dictum from the speech of Lord Hailsham, L.C. in Director of Public Prosecutions v. Kilbourne [1973] A.C.729 at 748-9, his Honour thought it to be highly relevant that, in relation to what I will call the Terang allegations, the depositional materials appeared to provide an underlying unity, as he described it, so as to render the evidence of each of the complainants mutually probative in respect of counts concerning others. For that reason his Honour declined to sever the 28 Terang offences but did sever the two East Brighton offences. In giving a ruling to that effect his Honour indicated that he proposed, with regard to the Terang offences, to deliver a strong direction to the jury as to the use which they might make of propensity evidence.

17. In this Court criticism was made, under cover of ground 1 of the application for leave to appeal against conviction, of the judge's approach to the application to sever. Counsel for the applicant conceded that there was a good deal in the evidence which justified the conclusion that there was a similarity between the various 28 offences which the judge left to the jury. The submission was in essence, however, that what was required was not mere similarity but what counsel called "a striking similarity" between the offences, and that the similarity was not sufficiently striking in order to justify leaving the 28 counts to be dealt with together. It was said, in a sentence, that the prejudicial effect of doing so was great and that it vastly outweighed the probative value which might be given to the Crown evidence by hearing the 28 charges together. In addition to that, it was pointed out that some of the complainants - two, I think - gave evidence of a large number of uncharged acts as well as charged acts and that evidence was to be taken into account, along with all the charged acts and the evidence about them which would cumulate against the applicant, in deciding whether it was right and fair that there should be severance or no. In addition, it was said that the prejudice to the applicant was exacerbated by what was done because of the great time which had elapsed between the commission of the alleged offences and the trial, making it very difficult indeed for the applicant to answer them. It was said also that the cumulation of complaints by themselves heaped prejudice upon him. Further, the judge ought to have taken into account and did not do so, sufficiently at all events, the unnatural or repellent character of the offences which would be likely to prejudice the mind of the jury against him when all these offences were considered together.

20. The validity of the point that the applicant was prejudiced by the lapse of time in answering the charges was illustrated by pointing to the acquittal in respect of counts 7 and 8. In respect of these counts the applicant had been able to call some evidence from an independent witness who deposed, in effect, that at the time when the complainant in relation to those offences said that she was assaulted while up a ladder picking fruit from trees at an orchard on a farm, the trees were either not present or were juvenile and not bearing any fruit at all. It was suggested to us, therefore, on behalf of the applicant that, if only the applicant had had half a chance to get more evidence of that kind, he would have been able to do better for himself on the trial. Notwithstanding the extensive direction about the onus of proof, and as to the necessity for the jury to consider each and every count separately, the necessity for the applicant to cope with a large number of allegations of indecent assault really meant that he had to shoulder the burden of demonstrating that he was not guilty.

23. The real basis for criticism of what the judge did was to say that he did not recognise that there was not sufficient similarity, that is to say, a "striking similarity", between the offences which made it unfair to have them heard together. Counsel was asked to indicate how it was that the judge had to be satisfied that there was a "striking similarity" between the offences before he could be considered right to allow them to be heard together. Really, I think, it is not unfair to say that counsel was not able to answer the question; for what is required before propensity evidence of this kind may be contemplated is merely that the court should consider that in all the circumstances it is just to admit that evidence; or, looking at it from the point of view of severance, that it was just to permit counts to remain joined despite any prejudicial effect that the joinder might have on the accused.

26. It was, in my opinion, not necessary that the judge should have looked for and found a "striking similarity" between these offences before refusing the application for severance. In DPP v. P. [1991] 2 A.C.447 at 460, Lord Mackay, L.C. made that clear. He indicated that in admitting evidence of an offence against one victim in connection with an alleged offence against another, it is not appropriate to single out "striking similarity" as an essential element in every case. What is necessary is that the probative force of the evidence is so great as to make it just to admit it, notwithstanding that it will be prejudicial to the defendant, in tending to show that he was guilty of another crime. His Lordship went on to say that, although such probative force might be derived from striking similarities in the evidence about the manner in which the crime was committed, it was not restricted to such cases; and the question whether the evidence had sufficient probative value to outweigh its prejudicial effect was one of degree. Certainly there have been cases which have used the words "striking similarity", but the test they provide is more appropriate, as I think, to be used in a case where the question is the identity of an offender rather than whether a crime has been committed, such as was the problem which confronted the jury in this case. Lord Mackay referred to the distinction between such a case and a case of identity at p.462 of the report.

29. It seems to me that it cannot be said that the judge in this case, in reviewing at the outset of the trial the evidence such as was contained in the depositional material, made such a mistake of degree as invalidated his decision not to sever. I think, therefore, that ground 1 must fail.

32. Ground 2 alleged that the judge erred in his direction to the jury concerning the standard of proof, particularly when his Honour charged the jury in terms that, "You must concern yourself with the real issues. Did he do it or didn't he do it?" I need, in order to render that ground intelligible, to refer shortly to the learned judge's charge. Early in the charge he gave common and unexceptionable directions to the jury with respect to the onus of proof and the obligation on the Crown to discharge it beyond reasonable doubt. Ground 2, however, is founded on a statement made by the judge later on in the charge in which he said this:

"... you must concern yourselves with the real issues in this case and the real issues in this case, it seems to me, it is entirely a matter for you to work out what the real issues are, but it seems to me that the real issue is 'Did he do it' or 'Did he not do it'; that seems to be the real issue in the case. You must concern yourself with those real issues."

36. Now, that statement by the judge was criticised by counsel for the applicant inasmuch as it was said to have oversimplified the jury's task; it really undid the good that had been worked by the careful directions of a common kind that the judge had given with respect to the onus of proof. Counsel was really contending for something such as Queen Cleopatra did when she protested, "I do not like 'But yet', it does allay the good precedence; fie upon 'But yet'! 'But yet' is as a gaoler to bring forth some monstrous malefactor." The judge's statement I have quoted was said to have been a veritable godsend to the jury, oversimplifying their task for them, and directing them in effect, notwithstanding the careful and elaborate ground that the judge had already covered, to say, "But yet you really have only to worry about whether he did it or not". The jury, it was said, would have grasped that simplicity and thereby was a great temptation to them to come to a wrong result.

39. I am bound to say that, looking at the charge as a whole, that argument simply does not stand up. A few lines later than the last quotation which I made from the charge, the judge went on to say:

"Now, it seems to me, it is a matter for you in relation to each count that the real issues, as I said, are 'Did Herbert Mitchell commit the offences as alleged?' 'Has the Crown proved beyond reasonable doubt (1) that the offences occurred in the manner and at the time alleged?' [2] 'That at the time of the commission of the offence the girl was under the age of 16 years.'"

Putting that question in its context, and in particular in the context of the burden of proof, speaking for myself, I am satisfied no sensibly minded juror, paying reasonable attention to what the judge said, could have been under any misapprehension at all as to the obligation on the Crown to prove beyond reasonable doubt facts allowing an affirmative answer to the question, "Did he do it?" I think, therefore, that ground 2 also fails.

44. Ground 10, the penultimate ground upon which reliance was placed, read: "The trial judge erred in using his discretion and taking a majority verdict in all the circumstances of this trial."

47. The judge did, early on in his charge, simply advert in passing to the prospect that it might be open in certain circumstances to give a majority verdict, but he said that, for the time being at all events, the jury were required to concentrate on looking for a unanimous verdict. I wonder whether it is desirable, in the early stages of a charge and in the absence of necessity, to refer to the prospect that a majority verdict might be given. I doubt that in general it is necessary or desirable to do it. But that is not the real complaint here. What happened was that, after the jury had been sent out to consider their verdict at about 20 minutes to 11 on 6 December, they returned about two hours later with some questions, which were answered, and later on, many hours later, they sent a note to the judge asking one question, which is not now relevant, but also saying, addressing themselves to the judge:

"You should know that the second day of deliberation has made no difference to the state of the verdict. We seem to be stuck at a stalemate. No unanimous decision has been made and it now seems very clear to us that no unanimous decision will be made no matter how much time we spend here. The verdicts are almost unanimous, [and the 'almost' has been underlined] but the jurors whose opinion differ [it is to be noted, "jurors", plural] have stated that their decisions are final."

The judge communicated the terms of that note to counsel and debated with them the question whether the jury should be told that they might bring in a majority verdict. That was towards the end of 7 December. Then, the next day, after hearing debate on the matter, the judge ruled that in the exercise of his discretion he would direct the jury to deliver a majority verdict, and he did so.

52. His Honour's decision so to direct the jury is criticised under cover of ground 10. It is said that the exercise of the judge's discretion was wrong because his Honour was told in the note that at least two jurors had stated that their decision was final. The argument was that, having regard to the complexity of the trial and to the large number of counts which the jury was to consider, and also having regard in particular to the terms of the jury's note to the judge, he could not in the exercise of his discretion properly have acted otherwise than to say to them that they must continue to seek for a unanimous verdict or deliver no verdict at all. That was on the assumption, of course, that the word "jurors" was advisedly stated in the plural in the note. It seems then that, having regard to the direction to the jury, at least one of them did change his or her mind, because on the counts that resulted in a conviction there was a verdict of eleven to one.

55. I have not been able to understand truly why it was that the judge must be held by this Court to have exercised his discretion wrongly in allowing, as the statute permits, the jury to bring in a verdict by majority. There is, I think, no basis upon which the judge's decision can be seriously criticised. The very great length of time which had elapsed between the time the jury were first sent out and the time at which they brought in their majority verdict amply justified the judge's discretion, exercised as it was, as I say, after a 14-day trial. There had been nine complainants giving evidence and many of them had had to come long distances to do so; many of them had no doubt given it in embarrassing circumstances; and the judge was bound to weigh up the desirability of seeking to get a verdict, albeit a majority verdict if that was all the jury could do, as the law permits.

58. There is, I think, no basis for upholding ground 10.

61. Ground 11 complained that the verdicts of the jury were unsafe and unsatisfactory and constitute a miscarriage of justice. This ground was argued, unusually, not by relying on the comparative unsafeness and unsatisfactoriness of the Crown case but by criticising the charge. The criticism was, in a sentence, that the judge had erred in his summary of the Crown evidence, making it appear superior to the evidence given by the applicant and on his behalf. The judge adopted the course of summarising very briefly the evidence of each of the nine complainants and then coming back later in the charge to give a rather more expansive summary, with greater detail than the one he had previously given. By comparison, when he came to summarise the applicant's evidence, the summary was very much briefer.

64. I am bound to say that it seems to me that it must stand to reason that that should have been so, because the evidence of the nine complainants was comparatively detailed, whereas the evidence given by the applicant covered quite a brief period, and in seeking to summarise it the judge certainly had not to go to so much trouble. The principal basis of his evidence was simply to deny that what the complainants had complained of had happened. The judge did no more, I think, than to summarise for the jury what the evidence of the complainants was. It bulked larger in form and in substance than the evidence of the applicant. The difference in size and detail of the summaries was no more than a reflection of the extent of the evidence of the complainants on the one hand and the evidence of the applicant himself and his brief witnesses on the other. It cannot be right to say that, where there is detailed evidence given for the Crown whereas the evidence for the accused is less detailed, the judge must in some way tailor his summary of the former by reading down or emasculating the evidence of the Crown to balance them out in terms of volume and weight, and the like. That cannot be right, and so ground 11, I think, must fail.

67. It follows that the application for leave to appeal against conviction must also fail.

70. The single ground for leave to appeal against sentence I have stated. In the end it was not relied on as such. Rather, what was relied on was a pair of medical reports as to the applicant's present medical condition, as at this date, seeking to compare it with the medical condition at the time of sentence in December of last year. There is no doubt, it seems, that the applicant's medical condition is a parlous one. He suffers from hypertension, ischaemic heart disease, atrial fibrillation, cardiac failure, a type of diabetes, oesophagitis and duodenitis, depression, impairment of hearing, carcinoma of the prostate and chronic obstructive airways disease.

73. The judge took these matters into account, and that catalogue no doubt contributed to what must be regarded as a relatively lenient sentence he imposed. There is an indication, however - and this was not seriously resisted by the Crown, though it has not been stated on oath - from Dr Tim Lightfoot, a specialist physician, that renal dysfunction has supervened in the applicant, the effect of which, to summarise it, is that the likelihood, by way of a significant probability, is that his life expectancy has reduced from up to three years at the time of sentence to about twelve months at present. We were invited to exercise some mercy by way of allowing an extra ground, in effect that the applicant's health has seriously deteriorated since the sentence was passed, leading to a reduction of his life expectancy and rendering the sentence passed inappropriate.

76. The Court is of opinion that this is a case in which to exercise mercy of that kind, and there is good authority for it in cases such as R. v. Rostom, an unreported decision of this Court of 31 October 1995, R. v. Eliasen (1991) 53 A.Crim.R.391 and R. v. Williams, another unreported decision of the Court of Appeal dated 18 September 1995. It is not a matter, I think, of saying that the judge was wrong in what he did. It is not necessary that we should find that the judge erred in his sentencing discretion. The question, upon a ground like this as re-formulated or added, is whether this Court can be satisfied that, on the material now before it, a different sentence should be substituted for that passed by the sentencing judge.

79. Speaking for myself, I would answer that question in the affirmative. I would propose that the Court re-sentence the applicant to be imprisoned for seven months on each of the counts on which he was convicted and that pre-sentence detention of 125 days be recorded.

84. I agree that, for the reasons given by Tadgell, J.A., the application for leave to appeal against conviction should be dismissed and that the applicant be re-sentenced as proposed by his Honour.

89. I agree with the reasons of the learned presiding judge and the orders proposed.

94. The judgment of the Court will be in accordance with these minutes:

1. Application for leave to appeal against conviction dismissed.

2. Application for leave to appeal against sentence allowed.

3. Order that the appeal be treated as instituted and heard instanter and allowed.

5. Order that in lieu the applicant be sentenced to seven months' imprisonment on each of counts 1 to 6 and 9 to 28.

6. Declare that the period of 125 days be reckoned as already served under the sentence and order that there be noted in the records of the Court the fact that such declaration was made and its details.

105. We will make a declaration that the applicant is a serious sexual offender.