R v Osborne [2007] VSCA 250

**3 Clinton James Osborne was found guilty by jury verdict of eight counts of sexual penetration of a child under the age of 16 and two counts of indecent act with a child under the age of 16. The acts were alleged to have taken place at Shepparton, Point Lonsdale and Queenscliff. The applicant denied that the subject acts occurred and stated that he did not know the complainant's age until after the period of offending. At the time of the alleged offences, the complainant was 14 and the applicant was 34.

4 The Crown called 11 witnesses in proof of its case. The applicant, who was unrepresented, gave sworn evidence and called four witnesses on his behalf.**

5 Mr Osborne operated a tattoo shop in Shepparton. The complainant had visited the shop on three occasions. She maintained that on the first occasion she told Mr Osborne her age. Count 1 occurred on the fourth visit to the shop when the complainant went there with a friend, Chelsea Cole. At one point Chelsea left the shop and the complainant alleges that she and Osborne went into the bedroom at the back of the shop and there the applicant digitally penetrated her. No-one else was present. Chelsea's return to the shop activated the shop bell and the applicant walked out of the bedroom with the complainant and told Chelsea he was showing

the complainant where the toilet was. Chelsea Cole gave evidence that on this occasion only the applicant and the complainant were present when she returned to the shop, although she appeared to qualify her position in cross-examination when she stated she could not remember if there were others present at this time. Chelsea Cole gave evidence that the applicant gave the complainant a false tattoo. The complainant was wearing a T-shirt which read 'Hot Guy Wanted' and the applicant had read out those words. At one point the complainant's sister came into the shop and the applicant spoke with her.

**6 Count 2 related to an act of oral penetration which is alleged to have taken place in the applicant's car at Queenscliff on a Saturday in January 2004. Counts 3 to 9 occurred in the evening of that same day at a motel where the applicant was staying. According to the complainant, the two of them were in the motel room for an hour and a half, and no-one else was present. The following day, in the applicant's car, the complainant fondled the applicant's penis. This conduct is the subject of count 10. The complainant also said that later on that night she and the applicant returned to his motel room and there was a man staying upstairs and the applicant spoke with him. Chelsea Cole was also with them at this time.

7 The complainant told Chelsea Cole what had happened on the night the incidents took place or the following morning. Chelsea Cole gave evidence that she thought the complainant had said to her that she had slept with the applicant. This evidence was relied upon by the Crown as evidence of recent complaint.

8 On 24 February 2004, the complainant made her statement to the police by means of the VATE procedure. In that statement, she said that she had disclosed these offences to her school counsellor, who advised her that she was obliged to tell her parents about the disclosure. On the same day, the applicant was interviewed but released. Charges were laid on 7 May 2004.

9 A year later, the complainant, in the company of Natalie Nichol, visited the**

applicant's shop. On that occasion, she told the applicant that if he gave her a tattoo she would drop the charges. He refused, and the complainant left the shop and texted him a message which read, in part, 'I was going to let you off but now I'm not'.

**10 The applicant gave sworn evidence and admitted that he had met the complainant on three occasions when she came into his shop. In respect of count 1 he admitted that the complainant came to the shop with Chelsea Cole and that at the time he was giving a woman a tattoo. The chef from across the road was present, as was another girl waiting to have a piercing. At one point Chelsea left to get a drink and the complainant asked to go to the toilet. The applicant pointed out to her where it was. He returned to the workshop where he continued tattooing the woman. Chelsea returned and the complainant's sister arrived, and the complainant asked him to read the words on her T-shirt, which he did. The applicant maintained that there were others present in the shop the whole time the complainant was present.

11 To this end, the applicant called Bekir Aktas, who worked across the road from the tattoo shop. He stated that he was present in the shop when the applicant was tattooing a girl and two other girls entered the shop. They left and returned, then one girl left to get a drink and the girl remaining asked to use the toilet. The applicant pointed it out to her and continued applying the tattoo. At one point the applicant went to the workshop to clean some needles and then the other girl returned to the shop. He heard the applicant say 'hot guy wanted' and turned around to see that one of the girls was wearing a T-shirt with those words printed on it. In cross-examination Mr Aktas said that he was at the shop between 12.00 and 1.00 pm and 2.45 and 3.30 pm.

12 In respect of counts 2 to 9, the applicant stated that he and Matthew Field arrived at the Wyuna Motel in Queenscliff at 8.00pm on a Saturday night. He received a call, he thought from the complainant's sister, saying that they would be at Queenscliff the same weekend. That night he received a message, again he thought from the complainant's sister Roxanne, asking him for a lift to a friend's house. When he went to pick her up, he was met instead by the complainant and Chelsea Cole. He took them to a location in Point Lonsdale and returned to the motel. He remained there with Matthew Field for about an hour and a half and only left in response to a text message from the complainant asking him to give her a lift. He then picked her up and took her back to where Chelsea was. He then purchased two take-away meals and returned to the motel where he and Matthew Field ate them. The following day, he and Matthew visited a friend. Matthew left some time after 3.30 and returned at 6.00pm. They remained at the friend's house until midnight when they both returned to the motel. They checked out of the motel at 8.30 the following day.

13 The applicant denied all of the allegations of sexual conduct, stating the he did not take the complainant back to the motel, although he did tell her the name of the motel and the room number, and the incident the subject of count 10, the applicant said, was impossible for him to have committed because the complainant was in Torquay that day with the Cole family.

14 Matthew Field gave evidence that he had stayed with the applicant at the Wyuna Motel. The applicant left at one point and returned 20 minutes later, and about an hour and a half later left again and returned on that occasion with dinner. Nobody else was in the room that night. The next day, he and the applicant went to visit a friend and at one point he left and later returned. They had dinner and he and the applicant returned to Queenscliff at midnight.

15 The applicant also called his stepbrother, Daryl McLeod. He had seen the complainant at the applicant's shop on three occasions and he was present when the applicant asked the complainant her age. She had replied she was 18 and the applicant rejoined 'Aren't you 16?'. This was the occasion when the complainant had sent the text message saying that she was going to proceed with the court case because the applicant would not give her a tattoo. Mr McLeod had also been present on an occasion in 2003 when the complainant was present in the shop with a couple of friends. On that occasion, the complainant had asked for a piercing and the applicant had asked her her age, to which she had replied, 16.

16 Natalie Nichol also gave evidence on behalf of the applicant. She was a friend of the complainant and had gone with her to the shop on three occasions. On one occasion when she had intended to get a tattoo, a man who looked like Daryl McLeod was present. She heard the complainant ask for a tattoo and the applicant refused because of her age. She was also present when the complainant said that she would drop the charges if he gave her a tattoo, and the applicant showed Ms Nichol the text message that the complainant had sent to him.**

**17 I have only recounted so much of the evidence as is necessary to address the submission by Mr Thomas, counsel for the applicant, that the learned trial judge's charge failed to properly and fairly put the defence case to the jury and to sufficiently relate the law to the evidence and was thereby unbalanced in favour of the Crown.

18 Her Honour, in her charge to the jury, clearly identified the issues in dispute and in particular the applicant's defence that the sexual conduct between the two did not take place and that the accused believed the complainant to be over the age of 16.

19 Her Honour detailed each of the incidents the subject of each of the counts and her Honour addressed the jury on how they might use the evidence of recent complaint as founded in Chelsea Cole's evidence, although there was some criticism by counsel in this court that her Honour misstated the particularity of that evidence. Her Honour also directed the jury that the school counsellor could not have been called to give evidence, the complainant having made a later disclosure to her, that evidence would therefore be hearsay and inadmissible. Criticism was also made that that part of the complainant's evidence should have been excluded but, having been admitted, should have been the subject of a direction as to the use and potential misuse the jury might make of such evidence.

20 Her Honour invited the jury to raise with her any particular aspects of the evidence which they wished to have recounted. There were none. Her Honour then proceeded to give the jury what she described as a 'potted summary' of the evidence and, at the end of her charge, offered to provide the jury with a transcript of it. The transcript only became available shortly before the jury announced their verdicts and, as I understand it, in these circumstances none was provided to them.

21 Her Honour did not simply repeat the entirety of each of the witnesses' testimony, nor did she simply restate the evidence without applying it to the relevant law. The charge, with the exception of Ms Danuta Windt, an employee of the Wyuna Motor Inn who identified a tax invoice (Exhibit '2') dated 19 January 2004 for a two night stay, recounted the evidence of each of the witnesses called on behalf of the Crown. Her Honour also gave to the jury a detailed summary of the applicant's evidence. However, apart from some referring to some of the evidence of Natalie Nichol, her Honour made no reference to the evidence of the witnesses called on his behalf. Her Honour did make mention of what the applicant said he did whilst in the company of Mr Field and in a less comprehensive way what the accused said about Mr Aktas. Her Honour made no reference in the charge in any form to Mr McLeod. The charge did not address the evidence of any of these witnesses in any discrete fashion or, indeed, with the exception of Natalie Nichol, at all.

22 In this Court counsel for the applicant contended that a clear difference can be observed between the treatment in her Honour's charge of the witnesses called on behalf of the prosecution and those called by the applicant. This, he argued, may well have created in the minds of some members of the jury the impression that the judge did not consider that their evidence was worth mentioning or perhaps regarded the witnesses as seriously suspect or unreliable and thereby introduced a degree of unfairness into the trial.

23 True it is that the judge is not obliged to summarise all of the evidence of a trial[1] and, indeed, to do so would in most cases be both unnecessary to ensure a fair trial and overburden the jury. The central purpose of a trial judge's directions is, in order to facilitate the jury's deliberations, to provide them with the relevant law and to indicate how the principles apply in the circumstances of the case. To this end it is necessary that the trial judge marry the relevant evidence to the applicable law, and thereby obviate, as far as possible, the risk of the jury impermissibly reasoning towards guilt. As Eames JA stated in R v Zilm[2] -**

It must be said at once that there is no absolute rule, because what may be required by way of directions in order to ensure a fair trial may vary according to the circumstances of the case, with factors such as the length of the case, the complexity of the issues and the manner in which the case is conducted by the parties, among others, all being relevant to that question.

**24 To the extent that a trial judge is required to address the evidence, care must be taken to ensure that the summary provided fairly represents the position of each side.

25 In this instance, the charge did not deal discretely with the evidence of any of the witnesses, called on behalf of the defence, its relevance and the use the jury might make of it in a case where the accused contended that none of the alleged conduct occurred. Mr Aktas gave evidence which was relevant to count 1; it was capable of supporting the accused's testimony that he was present in the shop at the time that the complainant says the applicant digitally penetrated her in the bedroom. Whether the jury accepted that evidence or not is entirely a matter for them, but at the very least they should have been reminded of it. Likewise, the evidence of Matthew Field, if believed, was capable of supporting the accused's testimony because he says that, apart from the two occasions when the applicant left the motel room, he was with him all that night. Further, the evidence that the two of them shared a room may gain more support from the applicant's cross-examination of Ms Windt that the room had a queen sized bed and divan that unfolded into a bed, thus capable of accommodating two persons. However, Ms Windt's evidence was not referred to in her Honour's charge.

26 The applicant maintained that he did not know the age of the complainant until after the period in which the offending was alleged to have occurred. This issue was clearly in dispute, and if the jury came to the view that the applicant had an honest and reasonable belief in the complainant's age, then that would have afforded a defence to the charges. Mr McLeod and Ms Nichol gave evidence about being present when the applicant spoke with the complainant about her age, and in the case of Mr McLeod, he testified to the complainant giving an age which, on the Crown case, was false. Further, the applicant queried it by saying 'Aren't you 16?' which, if accepted, provides evidence which went not only to the applicant's belief but also the complainant's inclination to lie about her age.

27 Ms Nichol and Mr McLeod certainly were testifying about an occasion which occurred after the applicant had been interviewed by the police and later charged with these offences, so whilst it may be argued that at the very least he knew that she was under 16 when he was spoken to by the police, of itself that did not rob that evidence of those two witnesses of its reliability and credibility. It may be that on the occasion that those two witnesses gave evidence the applicant still did not know the complainant's precise age and he was legitimately inquiring of it because he needed to know her age to lawfully perform a tattoo.

28 Omitting reference to what these witnesses had to say and the relevance of it did, in my view, create an imbalance in her Honour's charge.

29 The trial judge was confronted, in this case with a relatively complex situation, made more difficult by the fact that the applicant had no legal representation. The transcript reveals that her Honour was scrupulous in her endeavours to ensure that a trial, which was fair for all involved, was conducted. I have no reason to doubt that her Honour formed the view that the evidence of the defence witnesses would have been fresh in the minds of the jurors and that no further reference to it was required. However, in clear distinction, the jury were told what use they could make of various aspects of evidence called on behalf of the Crown and in respect of Natalie Nichol. They were also told in respect of the school counsellor and the complainant's sister, who were not called, why that was so. As Mr Thomas SC submitted, this was not a case of oath against oath strictly speaking, because the applicant was in a position to call four witnesses who, if believed, were capable of supporting the applicant's contention that the alleged events, at least in respect of counts 1, 3 and 10 did not occur and as to his belief in the complainant's age. The jury were given no assistance in how they might use that evidence and the fact that her Honour made no reference to it may have led, as counsel submitted, the jury to conclude that the evidence was of no relevance or that the trial judge did not regard the evidence as worthy of their consideration. It is unfortunate that the applicant was not represented, as the imbalance would have been drawn to her Honour's attention and the situation would undoubtedly have been corrected by her.

30 As I am satisfied that ground 1 has been made out, I do not propose to deal with the other grounds argued in support of the appeal, other than to say that those grounds do not raise issues of principle which call for consideration in the circumstances of this case.

31 As it is proposed to order that the matter be remitted to the County Court for retrial, in order to provide assistance to the trial judge, I would add that in my view the passage in the VATE tape where the complainant states 'a couple of weeks ago I told my counsellor about him and his age and everything that happened' and indeed any reference to what was said to the counsellor should not be led in evidence. It is self serving and may be impermissibly used by the jury as bolstering the credit of the complainant.**

[1] Domican v The Queen [1992] HCA 13; (1991-92) 173 CLR 555, 560.

[2] [2006] VSCA 72; (2006) 14 VR 11, 22, [51].