R v N V D [2007] VSCA 230

Court of Appeal (Vic)|2007-10-23|Before: VINCENT and NEAVE JJA and CAVANOUGH AJA

Criminal law - Conviction - Applicant found guilty of one count of indecent act with a child under 16 (count 1) and one count sexual penetration of a child under 16 (count 2) - Particulars of each count referred to the 'first occasion' - Whether the convictions were unreasonable or against the weight of the evidence - Crown concession that application for leave to appeal against count 1 should be granted and appeal allowed - Application for leave to appeal against count 2 refused as sufficient particulars and sufficient evidence given of circumstances in which penetration occurred.

1 I agree in the disposition of this matter proposed by Neave JA and I do so for the reasons advanced by her in her judgment.

**2 The applicant was found guilty after a jury trial of one count of an indecent act with a child under 16 (count 1) and one count of sexual penetration of a child under 16 (count 2). The jury also determined, under s 45(7) of the Sentencing Act 1991, that at the time of the sexual penetration the complainant was under 10 years of age.

3 The learned trial judge sentenced the applicant to two years' imprisonment on count 1 and six and half years' imprisonment on count 2. He ordered that six months of the sentence on count 1 be served cumulatively on count 2, resulting in a total effective sentence of seven years with a non-parole period of five years.

4 The applicant originally applied for leave to appeal against the conviction on count 1 and now applies for leave to amend the application so as to seek leave to appeal against the conviction on count 2 as well. He also seeks leave to appeal against the sentences imposed.**

**5 The presentment alleged that the conduct in counts 1 and 2 occurred between 4 July and 12 October 2003. At that time the applicant was 29 years old and had been in a relationship with the complainant's mother for about two years. The complainant was seven years old.

6 At the time of the alleged offences, the complainant lived with her mother and younger sister in a flat in Richmond. The applicant stayed with the complainant's**

mother in her flat three or four nights a week. On some nights he stayed in another flat in the same block of flats. The complainant's evidence at trial was that after school she would walk to the hairdressing shop where her mother worked and wait to be picked up. She said that the applicant would pick her up and take her back to her mother's flat (often with her younger sister) while her mother continued to work in the shop.

**7 It was alleged that on a number of occasions, the applicant told the complainant to go into the bedroom he shared with her mother. He then sexually penetrated her vagina with his penis before ejaculating on the complainant's stomach.

8 The allegations came to light in October 2003. Shortly thereafter the complainant was medically examined and found to have chlamydia. The matter was reported to the police in December 2003 and the applicant was charged in October 2004.**

9 The applicant applied for leave to appeal against his conviction on count 1 on the grounds that:

the conviction was unreasonable and against the weight of the evidence;
the trial judge erred by inviting the jury to infer that the complainant's evidence on count 1 necessarily referred to an event other than the event covered by count 2; and
the trial judge erred by directing the jury that the complainant's evidence included numerous incidences of the type of act said to form the basis of count 1 and that such acts could be characterised as uncharged acts.

10 The application for leave to appeal against the conviction on count 2 was based on the ground that the conviction was unreasonable and against the weight of the evidence.

**11 Count 1 alleged that the applicant wilfully committed an indecent act on the complainant, a child under 16, between the relevant dates. The Crown case was that count 1 in the presentment related to the first occasion on which the applicant had committed an indecent act on the complainant.

12 In his written outline counsel for the applicant submitted that there was insufficient evidence to sustain the charge that the applicant had indecently assaulted the complainant on any particular occasion. This deficiency could not be overcome by the Crown relying on the first occasion on which the alleged conduct had occurred. Counsel said that the complainant's evidence as to the indecent assault was ambiguous, because it provided no details as to the circumstances in which the first indecent assault occurred. The alleged conduct was indistinguishable from other uncharged acts and/or may have been included in the conduct covered by count 2.

13 The only evidence which provided any support for count 1 was elicited in cross-examination of the complainant. This was as follows:**

Counsel: What I am saying to you [J], is that it didn't happen that he put his penis in your vagina or on your vagina. What do you say about that?

Counsel: Did you tell your mother in 2003 that [the applicant] had his penis on your vagina so you could get out of the house and go and live with your father?

Complainant: I told my mum the first time he did it.

Counsel: You don't really have a memory of [the applicant] putting his penis near your vagina or in your vagina, when you lived with your mum in 2003, do you?

**14 Counsel for the Crown conceded that the evidence as to count 1 was insufficient to support a conviction. In my view that concession was appropriate. The jury may well have believed that the applicant engaged in sexual conduct which included indecent assaults of the complainant. But the law requires the jury to be satisfied beyond reasonable doubt that the act occurred on the occasion which was alleged in the particulars (in this case on the first occasion when the complainant was assaulted).[1] To ensure that the applicant was not convicted twice for the same acts the jury were also required to be satisfied that the indecent assault was separate from the act of sexual penetration covered by count 2 - either because it occurred on a completely different occasion or because it was sufficiently separated in time from the penetrative act. The complaint provided no details as to the circumstances in which the alleged indecent act occurred and there was no evidence enabling the jury to differentiate the alleged act from the act of sexual penetration covered by count 2, or from other alleged indecent acts, which were not charged.

15 I would therefore grant the application for leave to appeal and allow the appeal against conviction on count 1.**

**16 Count 2 alleged that the applicant took part in an act of sexual penetration with a child under 16 between the relevant dates. The Crown identified the first occasion of sexual penetration during the relevant period as the subject of count 2.[2]

17 The primary submission of counsel for the applicant was that, as with count 1, there was insufficient evidence that an act of sexual penetration had occurred on a particular occasion and that the only evidence before the jury was general evidence of on-going sexual misconduct. It was contended that it was not open to the jury to be satisfied beyond reasonable doubt that there was sexual penetration on a particular occasion as alleged. As a related matter, counsel maintained, at least for a time, a submission that the particulars of the Crown case were insufficient to enable the applicant to determine which events were relied upon as the basis for count 2, so that it was impossible for the applicant to determine the case he had to meet.

18 Counsel for the Crown submitted that this court's decision in DPP v Lewis[3] permitted prosecution of the applicant for the first occasion of sexual penetration occurring within a specified period and that the jury verdict was not unreasonable or against the weight of the evidence.

19 In my view the conviction on count 2 was not unreasonable or against the weight of the evidence.

20 There was sufficient evidence relating the offence to the period covered by the presentment, namely between 4 July and 12 October 2003. The complainant gave evidence-in-chief that the acts of penetration occurred after her birthday (which was on 4 July) but before she moved to her father's home towards the end of 2003. Further, it is clear she was examined in relation to the alleged offences by Dr Harry at the Gatehouse Centre on 15 October 2003 and by Dr Garland on 16 October 2003. A vaginal and throat swab was taken on 22 October 2003.

21 Further, unlike the complainant's evidence on count 1, her evidence on count 2 provided considerable detail about the circumstances and nature of the offence. As set out in para [6] above, the applicant's evidence was that after school she went to her mother's hairdressing shop and waited till the applicant took her home, sometimes with her sister. Her evidence-in-chief continued as follows:**

Counsel: Can you tell us what happened between you and the man when you got home?

Complainant: When I got home and then sometimes my little sister watched TV and the man would tell me to go into his bedroom and take my clothes off.

His Honour: Just talk up a little bit more so that I can hear you. What was that answer?

Complainant: Then he would tell me to go on the bed.

Counsel: All right. When you had taken your clothes off and you had got on the bed what would happen then?

Counsel: Right. When he came on the bed too what was he wearing?

Counsel: What happened when he got on the bed wearing nothing?

Complainant: And... no, but sometimes white stuff would come out.

Counsel: When you say the white stuff came out, did you say it went on - where did it go?

Complainant: The man would wipe it off with a tissue.

Complainant: Um, um, maybe, I think maybe more than ten times...

Counsel: Sorry I didn't catch that. How many times?

His Honour: I thought I heard two at first. Did you say more than two or more that ten times?

Counsel: ...[J], can you tell us how old you were when this was happening?

**22 In cross-examination, counsel suggested that the applicant had not put his penis 'in', 'on' or 'near' the complainant's vagina and she again asserted that this had occurred, stating 'he did do it' and 'he did both' (see para [13] above). It was put to her in cross-examination that she, her mother and the applicant would always go home from the shop together, that the applicant did not have a key to her mother's flat, and that she was never alone with the applicant. She denied all these assertions.

23 The applicant's evidence referred to the events occurring before and after sexual penetration occurred and described the nature of the sexual acts. Although she could not remember some details of the surrounding circumstances, such as what she had said in 2003 to a police officer, she was unshaken in her statement that penetration had occurred, particularly during cross-examination.

24 I note also that despite the short delay between the alleged offences and the date when the accused was charged his Honour gave the jury a Longman[4] warning, which drew the jury's attention to the complainant's inability to remember some matters because of the delay between the alleged events and the time when she gave her evidence. His Honour also gave an appropriate direction as to uncharged acts.[5] The grounds of appeal do not allege that the jury directions were inadequate.

25 The complainant's evidence was supported by Dr Garland's evidence that the complainant's vagina, urethra and throat were infected with chlamydia in October 2003. Dr Garland was cross-examined as to the possibility that the complainant might have become infected with chlamydia at birth, rather than through sexual contact. The following exchange occurred between counsel for the applicant and Dr Garland in cross-examination:**

Counsel: And you were asked this by His Honour actually. "I was going to ask you that. How likely, bearing in mind everything you've said and everything you know about it would it be for a seven year old, for example, to still have the organism if it was infected at birth?" And your answer was, "To my knowledge it has not been reported at all in a child of that age and children up to two to three years of age, but beyond it's very hard to know where you can cut the line, but six, seven, eight, I think that would be extraordinarily - as I said, it's not been recorded in the medical literature." That was your evidence?

Counsel: You say two to three years, you could conceive of that?

Counsel: I know you're speaking from your experience, your expertise and your study in the area and your study suggests to you that it's highly unlikely to remain beyond two to three years in a child?

Garland: That is the standard treatment teaching, that is correct.

Counsel: You couldn't exclude it as a possibility though, could you?

Garland: Well, I'll stand by what I said before. I think two to three years is what I've seen done in children and I have seen nothing that shows beyond that time period.

Counsel: Yes, but you concede, don't you, that by the nature of these studies there's a lack of significant data, a paucity of data in relation to the natural resolution of chlamydia in a person untreated?

Garland: We're talking here about the urine, the vagina and the throat. They're - I mean, there is no data about throat chlamydial infections existing for long periods of time. And the abstract is relating to the genital tract I believe. These were taken from cervical specimens I believe. Here, there is nothing here about how long an infection lasts in the throat.

Counsel: Yes. I'm not suggesting there is, Professor?

Garland: I guess what I'm saying is to find the organism in three sites seven years after birth had the mother been positive is a little fanciful.

Counsel: And you base that upon the fact that there is no medical data that mirrors that scenario?

Garland: That's right. Because usually in a throat it disappears a lot quicker than in the genital tract. This is an organism, if you like that likes to live in a genital tract and when it infects other sites it tends not to hang around.

Garland: It was the vagina, the urethra, so the urine, and the throat as well.

26 The complainant was also cross-examined as to other possible instances of sexual abuse and gave the following answers:

Counsel: Is there anyone you say that's done anything like that apart from [the applicant]? You say [the applicant] did that. Has any other man done anything like that to you?

Counsel: I asked you this in a different way before, but I'm going to ask you again a bit differently. Did any of your mum's other boyfriends apart from [the applicant] when you were younger come into your room when you were asleep or anything like that?

Counsel: Did any of your mum's other boyfriends touch you or do something sexual to you like you say happened?

**27 Accordingly, there was evidence that the complainant could not have become infected with chlamydia by sexual contact with any person other than the applicant.

28 In my opinion the complainant's evidence as to the circumstances in which the act of penetration occurred combined with the evidence of Professor Garland was more than sufficient to enable a jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 2.

29 Before disposing of the appeal against conviction, it is necessary to refer to the submission made by counsel for the applicant that, despite the decision of this court in DPP v Lewis,[6] the particulars alleged in support of count 2 could not support the applicant's conviction.

30 In DPP v Lewis the complainant, then aged 33, alleged that her father had sexually assaulted her on numerous occasions between her seventh birthday and when she was about 13½ years old. Not surprisingly, she was unable to give precise dates as to when particular acts occurred. The father was charged with eight representative counts of indecent assault, one of attempted gross indecency and one of carnal knowledge. The particulars of some of these counts referred to the first occasion on which the accused allegedly assaulted his daughter and alleged that this occurred within a specified period. For example count 3 was particularised as follows:**

Accused orders daughter [the complainant] behind shed in backyard. Accused places his hand in [the complainant's] underpants, and touches her vagina and buttocks. Accused inserts his finger in [the complainant's] vagina and anus.

This occurs frequently. However this count relates to the first occasion of this type of sexual abuse (emphasis in original).

**31 Count 4 referred to the accused knocking on the wall for the complainant to come into his bedroom and then sexually penetrating her. It was alleged that this occurred frequently over a period of three or four years, but the particulars again referred to this as the first occasion of penile/vaginal penetration. A County Court judge ordered a permanent stay of these and other similar counts on the basis that the accused had been denied procedural fairness, because the counts failed to identify the particular act charged. His Honour also said that there was a danger that the jury might treat evidence of uncharged acts as referring to the particular acts charged. The Director of Public Prosecutions sought declaratory relief[7] against the stay granted by his Honour. In response, the accused relied principally on the judgment of the High Court in S v R.[8]

32 In S v R the accused was charged with three counts of incest. Each offence was alleged to have occurred during a different, specified 12 month period. There was some overlap between two of the specified periods. Counsel for the accused sought particulars of each of the three counts and the Crown refused to provide them. The daughter gave evidence of many more acts of incest, and was able to distinguish two acts of intercourse from the others, but she was unable to ascribe either of these events to any of the between-dates periods in the indictment. The jury was told that they could convict the accused on the three counts if they were satisfied that the accused had intercourse with his daughter on three occasions, regardless of whether they were satisfied that the evidence proved an act of intercourse within any of the relevant periods in the presentment. The majority[9] of the High Court held that the appeal should be allowed.

33 In DPP v Lewis Tadgell JA, who delivered the main judgment,[10] distinguished it from S v R. Tadgell JA said that:**

One difference between S v R and this case is that, in the former, the Crown, being unable to call evidence distinguishing each of the three counts charged from others, nevertheless declined to elect to proceed in reliance on any particular act or acts of intercourse. That was a vice which rendered each count, although strictly not duplex and not on its face ambiguous, latently ambiguous.[11]

Further, Tadgell JA said that it had been submitted:

...that an attempt to identify the conduct the subject of any count by reference to the 'first occasion' when it occurred provides no more than an illusory particularisation dependent on a linguistic device. It was objected that the particulars do not indicate when, within the period specified for any count, the conduct is alleged first to have occurred; and that the occasion nominated by the complainant as the first could be as early as the first date in the period or as late as the last.[12]

Tadgell JA rejected that submission, commenting as follows:

It is true that the particulars amount to an allegation that the 'first occasion' might have been at any time within the specified period. That, however, does not make the count bad or preclude a valid conviction upon it: R. v Hartley [1972] 2 Q.B. 1 at 7; Clarke v La Franchi (unreported, Appeal Division, 10 June 1994), at 22; R. v Robinson [1996] VicRp 27; [1996] 1 V.R. 402 at 407. The written outline of argument provided for the accused to this court included a submission that 'the device relied upon by the Crown to particularise construes the occasion, the subject of the count, by reference to occasions for which the accused is not on trial. This is the danger that the principle in Johnson v Miller ... is designed to avoid'. The submission derives no support from Johnson v Miller. Indeed, as I have endeavoured to show, the reasoning of Dixon J supports the view that it may be appropriate to identify a transaction by reference to the order of its occurrence in a series, whether or not any other transaction in the series is the subject of a charge.

The selection of a single instance within the period covered by any one count avoids a position such as that in S. v R. in which, as Gaudron and McHugh JJ. put it at 286, '[e]ffectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed'. By tying itself to the 'first occasion' of an offence charged by the presentment and described in the particulars, the Crown undertakes to prove that the offence charged occurred during the period specified, and to prove also that no offence answering the given description occurred earlier, whether within the specified period or outside it. It is further to be noted that in S. v R. (so far as appears) the only charges against the accused man were of sexual intercourse, each on a date unknown within a specified period of 12 months; but that evidence was given by the complainant of many acts of intercourse by the accused with her, the physical circumstances of any one of which were (again, so far as appears) indistinguishable from those of any other, save for the two occasions that I have already noted. One of these was the 'first occasion', but that characteristic was of no use by way of particularisation because the first occasion was not necessarily the subject of one of the three counts. Here, by comparison, the act on the 'first occasion' is specifically charged and, moreover it is charged alone. Again, the circumstances alleged here in respect of any one count of sexual abuse of the complainant are readily distinguishable from the circumstances alleged in respect of any other such count. I note also that the periods specified in the particulars to counts 3, 4, 5, 6, 7 and 8 vary between one month at the least and five months at the most. This is to be compared with the position in S. v R., where the period in respect of each count was 12 months, and there was evidence of a number of instances of sexual intercourse, from which the jury was invited to select, occurring over a total period of almost three years: cf. at 286, per Gaudron and McHugh JJ.[13]

**34 Tadgell JA went on to say that the concern expressed by the judge below, that the jury would be confronted with 'composite evidence' of all the alleged incidents, was relevant to the question of admissibility of evidence of uncharged acts, which would require analysis against the background of fact and argument at trial. It was not appropriate to consider the possible misuse of evidence of uncharged acts (which could in any case be dealt with by appropriate jury directions) in the context of a strike-out application. The court declared that the judge below should not have struck out counts which alleged that specified sexual offences had occurred between specified dates and which relied on the first occasion of that conduct, on the grounds of latent ambiguity or duplicity.

35 In the present case, counsel representing the applicant contended that DPP v Lewis was distinguishable because the Court was there dealing with a pre-trial application to strike out counts, whereas here, according to the argument, there had been insufficient evidence at the trial to differentiate the first occasion on which the alleged conduct occurred from a more general course of conduct.

36 In my opinion this distinction lacks substance. The evidence led in support of a count based on the first occasion on which a sexual offence is alleged to have occurred may, of course, be insufficient to sustain a conviction. I have already expressed my view that this was not the case in relation to the jury verdict on count 2. If, as this court held in DPP v Lewis, it is permissible for the Crown to rely on the first occasion when the alleged offence occurred, that fact alone cannot create ambiguity or duplicity which produces a miscarriage of justice.

37 Counsel for the applicant also relied on the opinion expressed by the Queensland Court of Appeal in R v S.[14] In that case MacKenzie JA said that particularising an act as the first or last of a series of events may not provide a sufficient indication to the accused person of the case he must answer. However, he also said:**

[O]nce the sufficiency of particulars falls to be decided in the context of the particular circumstances of the individual case, each case must be decided on its merits... [I]n the end, it may be a matter of judgement and impression whether a case falls on one side of the line or the other, given the wide variety of circumstances which may exist.[15]

**38 In my opinion MacKenzie JA's analysis does not assist the applicant. Counsel for the applicant in this case was invited to identify any unfairness to the applicant which arose in the circumstances of this case. He was unable to do so. Indeed, ultimately, he acknowledged that he could not and did not assert that there was any lack of necessary particularity in the way in which the Crown had framed the case against the applicant.

39 For these reasons I would dismiss the appeal against conviction on count 2.**

**40 The applicant must be re-sentenced following the setting aside of his conviction on count 1.

41 The relevant grounds of appeal allege that the individual sentences (now the sentence on count 2) and the non-parole period are manifestly excessive and that the judge below erred by treating the complainant's infection with chlamydia as an aggravating factor in sentencing. Counsel for the applicant submitted that the judge could not properly have been satisfied beyond reasonable doubt that the complainant had been infected with chlamydia by sexual contact.

42 I do not accept the latter submission. His Honour could not have assumed and did not assume that the applicant was aware that he was infected with chlamydia when he sexually penetrated the little girl. His Honour did not hold that the applicant's moral culpability was increased through any such knowledge. Rather, his Honour's reference to this matter as an aggravating factor reflects section 5(2) of the Sentencing Act 1991, which requires the court to take account of, amongst others, the following matters in sentencing an offender:**

(daa) the impact of the offence on any victim of the offence; and ...

(db) any injury, loss or damage resulting directly from the offence.

**43 The evidence set out above clearly permitted his Honour to infer beyond reasonable doubt that the complainant was infected by sexual contact with the applicant. I would draw the same inference. This can be regarded as an aggravating factor in re-sentencing the applicant. The risk of infection is a risk that offenders run in sexually penetrating victims.

44 The victim impact statement provided by the complainant's father on her behalf, and the report of Ms Nadine Daniels', the complainant's psychologist and counsellor, which were both in evidence at the plea hearing, show that the complainant continues to feel sad, fearful and unsafe as a result of the offence.

45 The complainant was only seven years old when the offence occurred and the applicant was responsible for caring for her at the time. Count 2 was a serious sexual offence and was not an isolated incident. The offence occurred in her home and was perpetrated by her mother's partner, thus affecting her sense of security. As the judge below correctly noted:**

Their description alone states these offences to be abhorrent. For sexual gratification, [the applicant] exploited the vulnerability of a young child in [his] care.[16]

These matters significantly aggravate the applicant's culpability.

**46 This is the applicant's first conviction for a sexual offence, although he has prior convictions for offences involving dishonesty and violence which may relate to the fact that he is a recreational gambler. The judge below noted that he has no drug or alcohol problems and remains in contact with his family. These factors may assist his rehabilitation and must be taken into account in re-sentencing the applicant, but the circumstances of this case require significant weight to be given to general and specific deterrence. The maximum sentence that can be imposed for this offence is 25 years.

47 In my opinion, the sentence of six and a half years imposed by his Honour in relation to count 2 was appropriate. I would therefore re-sentence the applicant accordingly. In light of the decision to uphold the appeal with respect to count 1, I would impose a new non-parole period of four years and four months.

48 The applicant is still a registrable offender under the Sex Offenders Registration Act 2004.[17] However the period of reporting required under that Act is reduced from a period of life, to a period of 15 years.[18]**

[2] Cf DPP v Lewis [1997] 1 VR 391.

[5] See for example R v Grech [1997] 2 VR 609 and R v Best [1998] 4 VR 603.

[9] Dawson, Toohey, Gaudron and McHugh JJ.

[16] The Queen v Dung Nguyen (Unreported, 18 July 2007, County Court of Victoria), [16].

[17] Sex Offenders Registration Act 2004, ss 6 and 7, and Schedule 1. This is despite the offences having been committed prior to the commencement of the Act, see s 34(2).

Offenders Registration Act 2004

At a glance

Court

Decision date

Before

Source

Judgment (114 paragraphs)

Legislation Cited (4)

Cases Cited (3)