R v PJO [2001] VSCA 213

Criminal law - Fitness to be tried - Whether a real and substantial question.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss.6 and 9.

Criminal law - Comment by trial judge - Did not pose question why would complainant lie.

2. I have had the benefit of reading the judgment of Buchanan, J.A. in draft form and, for the reasons he expresses, I consider that this application should be dismissed.

7. On 7 August 2000 the applicant, then aged 74 years, was arraigned in the County Court at Warrnambool in respect of nine counts of rape, one count of attempted rape, 14 counts of indecent assault and one count of gross indecency. At the behest of counsel for the applicant the judge before whom the applicant was arraigned embarked upon an investigation into the applicant's fitness to stand trial pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. After hearing evidence and submissions the judge ruled that the applicant was fit to be tried.

10. Three of the counts alleged indecent assault against a daughter of the applicant. The remaining counts concerned offences alleged to have been committed against five sisters of the applicant's wife. An application was made on behalf of the applicant to sever the counts on the presentment so that the counts relating to each complainant would be heard separately. The application was granted to the extent that it was ordered that the counts of indecent assault against the applicant's daughter be severed. Otherwise the application was refused.

13. The applicant pleaded not guilty to all the counts. The Crown case consisted of the evidence of each of the five sisters. The offences were alleged to have been committed between 3 September 1960 and 31 December 1972. During that time the applicant and his wife lived on a farm at Willaura, a farm near Hamilton and, during the last eight months of the period, at a house in St Arnaud.

16. Counts 1 to 7 concerned one sister. Counts 1 and 3 alleged indecent assault and counts 2 and 4 to 7 alleged rape. The complainant gave evidence that when she

was about 12 years old her mother sent her to stay with the applicant and his wife during the school holidays. When she visited the shearing shed, the applicant squirted her in the face with milk from a ewe. She lifted her dress to wipe her face and the applicant put his hands up her dress and touched her breasts (count 1). When the complainant left school, her mother sent her to live with the applicant and his wife to help with their two small children. The complainant was then aged 14 years. She awoke one night to find the applicant kneeling between her legs. She asked what he was doing and he told her that nobody would believe her if she were to tell them. Then he put his penis in her vagina and had intercourse (count 2). The complainant gave evidence that the applicant raped her in a similar way once or twice a week. The applicant's wife was admitted to hospital in Casterton, and while she was away the applicant dragged the complainant to his room, touched her all over her body and put her hand on his penis (count 3). According to the complainant he then put his penis "in me" and "went for it" (count 4). Later, when the applicant's wife was in hospital giving birth to one of her children, the applicant again dragged the complainant to his room, where he put his penis in her vagina and had intercourse, after which she ran to her own room crying (count 5). Two days after the applicant's wife returned from hospital, the applicant raped the complainant in a farm shed (count 6). The complainant said that the applicant's wife was like a mother to her, but she was too frightened to tell her of the rapes and assaults as the applicant told her that his children needed a father. The complainant said that the assaults happened "plenty of times", "probably anything up to probably eight times I suppose, it was just any time", "If he wanted it he took it." These were uncharged acts.

20. The complainant left the applicant's property when she was 15 years of age to work as a housekeeper for a family who lived ten miles away at Grassdale. The applicant and his wife picked up the complainant every Sunday to take her to church. On occasions she stayed with the family during Sunday and the applicant would drive her home. On those occasions he would generally follow her into her quarters and watch her undress. Sometimes he would touch her and most times he would, she said, "put his penis in me and have sex". These were uncharged acts. When the complainant was 18 years of age she was driven home from church on one occasion by the applicant. He pulled into a laneway and told the complainant to "Take your pants off". She jumped out of the car. The applicant caught her and raped her. He then drove her home, telling her not to tell anyone as she would not be believed (count 7).

23. The complainant left the family at Grassdale and returned home. Her mother sent her to live with the applicant and his wife. Now aged 18 years, she remained there for between 12 and 18 months. She said that the applicant continued to creep into her room and rape her. These acts were not the subject of any charges.

26. Counts 15 (indecent assault), 16 and 17 (rape) concerned the second complainant. When she was 18 years of age the complainant was sent to help the applicant, who was then living on the farm at Willaura. When the complainant was in the bath, the applicant entered the room carrying a baby. The applicant put the baby in the bath and started fondling the complainant's breasts (count 15). That night, when the complainant was in bed, the applicant crept into her bedroom and, she said, "undressed me and raped me" (count 16). The applicant then told her to wash herself so that she did not get pregnant. She said that she was scared stiff and did what he said. The same thing happened the following night (count 17), and after that it happened once or twice more. These were uncharged acts.

29. Counts 8, 9, 10, 12 and 13 (indecent assault), count 11 (attempted rape) and count 14 (gross indecency) concerned the third complainant. She said that during the Christmas holidays when she was about 12 years of age she was sent to live with the applicant and his family by her mother. She stayed one-and-a-half to two weeks. On one evening the applicant entered her room and sexually assaulted her in various ways (counts 8 to 11). When she was about 13 years of age the applicant and his family came to stay at the complainant's mother's house in Ararat. On one occasion the complainant was required to take the applicant a cup of tea in his bedroom. He was in bed and pulled her in with him. He fondled her vagina (count 12). The complainant gave no evidence in respect of the conduct the subject matter of count 13, which had been alleged to arise out of the same incident, and a verdict of acquittal was directed by the judge. When the complainant was aged about 14 years she stayed with the applicant and his wife in St Arnaud. The applicant coaxed her into the bathroom and made her insert first one tampon and then another. He then made her undress while he watched and told her to get into the bath (count 14).

32. Counts 18 and 19 (rape) concerned the next complainant. The complainant was married and had two children. She went to Willaura to spend a holiday with the applicant and his wife, and stayed a week. She slept in the bedroom next to the applicant and his wife. One night she was woken by the applicant getting on to the bed. The applicant lifted the bedclothes and touched the complainant around her vagina. She said "He was more or less on top of me .... He had intercourse .... I sang out to Dawn and she didn't hear or didn't listen. I tried to fight him off and told him I didn't want to do it." She said that she did not tell her sister because she did not want to upset her (count 18). Later during the visit she was left alone at the farm with the applicant and her daughter. The applicant seized her, took her into one of the bedrooms, removed her underwear and "just had intercourse" (count 19).

35. Counts 20 to 22 (indecent assault) concerned the fifth sister, the youngest member of the family. When the complainant was 13 years of age she went to stay with the applicant and his wife in St Arnaud. She was asleep on the divan in the loungeroom when the applicant entered, pulled the blankets down and touched her on the breasts and around the groin (count 20). As he did so he told her that no one would believe her. Thereafter the applicant repeated this conduct each night during her visit. When the complainant was about 16 years of age and staying with the applicant and his wife in St Arnaud, one night the applicant crept into the loungeroom where she was sleeping, fondled her breasts and put his fingers in her vagina (count 21). On another occasion the applicant came into the room in which the complainant was sleeping, pulled the blankets and her pyjamas down and put his fingers in her vagina (count 22).

38. On 21 August 2000 the jury returned its verdicts, finding the applicant guilty of all but one count of rape, one count of attempted rape and six counts of indecent assault. On 6 October 2000 the applicant was sentenced to a term of five years' imprisonment on each of the counts of rape and to a term of six months' imprisonment on each of the counts of indecent assault and the count of gross indecency. A measure of cumulation was ordered, producing an overall effective term of seven years' imprisonment. A period of three years was fixed before the applicant was to be eligible for parole.

41. The applicant seeks leave to appeal against his convictions on the following grounds:

"The learned trial judge erred in - 1. Refusing my application to sever various counts on the presentment. 2. Refusing to empanel a jury to determine the question of my fitness to stand trial. 3. Commenting to the jury in his charge in his view of the likeliness of a complainant in a sexual complaint to invent a complaint. 4. Failing to direct the jury as to the use they could make of the fact that there were multiple complainants in the one trial."

45. The trial judge refused to sever the counts alleging offences against the five sisters as a result of holding that the evidence of each complainant was admissible in relation to the counts concerning the other complainants pursuant to the provisions of s.398A of the Crimes Act 1958. Presumably he did so on the basis that where evidence of one count is admissible on another count, there is no point in ordering separate trials.[1]

"(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if a court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."

The task required by this provision is to consider in turn the probative force and the prejudicial effect of the evidence.[2]

53. The trial judge concluded that there were sufficient common elements in the evidence of the complainants to render the evidence of each complainant "strongly supportive of the truth" of the evidence of the other complainants. The common elements included the relationship of each complainant to the applicant, the opportunity given to the applicant by each complainant living in the applicant's house, the fact that the assault against each complainant in the applicant's house occurred when the applicant's wife was asleep or absent and the youth of most of the complainants when the offences occurred. In my opinion no error has been shown in the trial judge's determination that the probative effect of the evidence rendered it just to admit it despite its prejudicial effect The evidence disclosed a pattern of conduct on the part of the applicant. He systematically exploited his young sisters-in-law when they came within his sphere of influence.

56. Counsel for the applicant submitted that there was not sufficient striking similarity between the evidence of the complainants to render that evidence mutually corroborative. Striking similarity is not the only basis upon which propensity evidence can be admitted.[3] Where propensity evidence is led for the purpose of establishing the identity of an offender, it may be necessary to insist upon an element such as striking similarity, for in such a case there is a very high risk that the jury will reason from propensity to guilt.[4] In the present case the question was whether a crime had been committed, not the identity of the person who had committed an undoubted crime, and in my view, with appropriate directions from the trial judge, it was not unjust to admit the evidence. The improbability of coincidence, from which the evidence derived its probative force,[5] was sufficient to render it just to admit the evidence notwithstanding its prejudicial effect.

59. Counsel for the applicant contended that the applicant was unfit to stand trial because he was unable to follow the course of the trial and was unable to give instructions to his lawyers. He relied upon paragraphs (d) and (f) of s.6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, which provides:

"6(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be -

...

(b) unable to follow the course of the trial; or

...

(f) unable to give instructions to his or her legal practitioner."

The trial judge was requested to reserve the question of the applicant's fitness to stand trial pursuant to s.9(1) of the Act, which provides:

"9(1) At any time after a presentment or indictment has been filed, if it appears to the court before which the defendant is to be tried that there is a real and substantial question as to the defendant's fitness to stand trial, the court must reserve the question of the defendant's fitness to stand trial for investigation under this Part."

The fitness of the accused to stand trial is ultimately determined by the jury.

66. The evidence upon which the application was based was a report and oral testimony of a forensic psychologist, one Ian Joblin. The burden of the psychologist's evidence was that the applicant was mentally confused and disoriented. He understood the nature of the charges against him but had difficulty in concentrating for any extended period. Mr Joblin said:

"I would suggest that this man could probably understand the proceedings so far today, and probably report if he was questioned right now as to the nature of the proceedings over the last few minutes. The longer those proceedings go on the greater would be my concern .... Now, it may be that he can understand an hour or one or two hours but I have serious doubt as to whether or not he can understand and ascertain the nature of the evidence over a period of some days."

Mr Joblin said that his concern would be alleviated if there was a running transcript which could be reviewed by his counsel in consultation with the applicant and there were breaks during the trial.

71. His Honour refused to order an investigation into whether the applicant was fit to stand trial. His Honour said that a running transcript would be provided to the applicant's counsel and that there would be regular breaks during the course of the evidence. He said:

"I do not understand the evidence of Mr Joblin to indicate that there is a substantial question at this stage as to the defendant's fitness to stand trial, although there may well be an existing question having regard to difficulties with concentration."

He went on to say that further consideration might well have to be given to the question in the course of the trial.

76. The applicant challenged that ruling on the ground that it was for the jury upon investigation to determine whether an accused person was fit to stand trial. Counsel for the applicant submitted that instead of considering whether a real and substantial question existed, the judge determined the question.

79. Counsel for the applicant submitted that the judge's usurpation of the jury's function was disclosed by the following passage in the course of his Honour's ruling:

"I do not understand the import of Mr Joblin's evidence to provide a basis for the court being satisfied on the balance of probabilities that either of those limitations do apply as far as the accused is concerned."

The limitations his Honour referred to were those set out in paragraphs (d) and (f) of s.6(1). When the reasons of the trial judge are read as a whole I am of the view that his Honour did consider and decide whether there was a real or substantial question as to the applicant's fitness to stand trial. He said as much in the passage quoted in paragraph [20], above. In the passage set out in this paragraph, I think the judge was saying no more than that the psychologist's evidence did not provide a basis upon which it could be determined that the applicant was not fit to stand trial. I am also of the opinion that the judge was plainly right. The evidence went no further than raising the possibility that in the course of the trial it might be found that the applicant was not fit to be tried. That would not have supported a finding that there and then the applicant was not fit to be tried, and so the issue did not have to be tried by a jury.

84. Ground 3 is based upon the last sentence in the following passage from the judge's charge to the jury:

"All I say in relation to that is that experience of the law confirms that complaints are not always made immediately after sexual assaults. It follows therefore that the mere absence of complaint does not conclude the matter. The absence of complaint is part of the background. It is sometimes said that a sexual complaint is easy to make and difficult to defend. Part of common human experience is, I suppose, the experience of judges and as a comment of mine which you can accept or reject, I might say that I have not observed that it is particularly easy to make such allegations, to climb into a witness box and to be cross-examined in minute detail about the sexual complaint."

88. The passage I have quoted was preceded by description of the reasons given by the complainants for failing to complain for many years about the applicant's conduct. The applicant contended that the last sentence amounted to the rhetorical question "Why would a complainant lie?", a question which, when asked by the prosecution, was held in Palmer v. R.[6] to have occasioned a miscarriage of justice.

91. The trial judge characterized his statement as to the unpleasantness of making allegations of sexual misconduct and undergoing cross-examination as to any complaint as "a comment of mine which you can accept or reject". Counsel for the respondent pointed out that at the outset of the trial and at several points in his charge his Honour had been at some pains to make clear to the jury the distinction between directions as to the law, which the jury were to follow, and comments, which they were free to ignore. I do not think that the distinction between comments and directions meets the applicant's complaint. If the comment did pose the question "Why would the complainants lie?", it strengthened the complainants' credibility by causing the jury to take into account the applicant's inability to furnish a motive to lie and to that extent diminish the standard of proof.

94. When the comment is placed in context, however, I consider that it did not invite the jury to believe the complainants because no motive for them to lie had been established. In my view the last sentence of the passage from the charge would have been regarded by the jury as an attempt to balance the proposition that a sexual complaint was easy to make. The comment was part of a disquisition on the timing and consequences of complaints of sexual misconduct. In my view it would not have been taken as an invitation to accept the complainants' evidence more readily because no motive to lie had been established.

97. Finally, it was submitted on behalf of the applicant that in his charge to the jury the trial judge erred in instructing the jury that they could treat the evidence of one complainant as corroborating or supporting the evidence of another complainant. The offending passage in his Honour's charge was said to be this:

"In this trial the only external evidence, that is corroborative evidence to that of each respective complainant which supports such complainant is the evidence of the other complainants, which when taken together make it more probable that each of them was telling you the truth. Such evidence is mutually supportive of these respective allegations ..."

101. As charges of sexual offences against several complainants were tried at the same time, it was necessary for the trial judge, in addition to a separate consideration direction, to warn the jury not to reason that, if the applicant committed an offence against one complainant, he was the kind of person who was likely to have committed an offence against another complainant.[7] The trial judge did give that

warning to the jury. While the jury were not to reason that the applicant had committed a particular offence because he had a propensity to commit sexual offences, they were entitled to consider that the complainants' evidence, taken as a whole, made it more probable that each of them was telling the truth. In this sense the evidence of all the complainants could be taken as mutually supportive of their respective allegations.[8] The probative force of the evidence which warranted the joinder of the counts was precisely that which was derived from the improbability that the complainants should have made similar allegations unless they were true. In my opinion the trial judge's direction as to the corroborative effect of the evidence was correct.

105. For the foregoing reason I am of the opinion that none of the grounds of the application have been established. I would dismiss the application.

110. I have had the opportunity to read in draft the decision of Buchanan, J.A. I agree in his reasons that the application should be dismissed.

[1] See De Jesus v. R. [1986] HCA 65; (1986) 61 A.L.J.R. 1 at 10 per Dawson, J. See also R. v. TJB [1998] V.R. 621 at 631 per Callaway, J.A.

[2] See Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461 at 528-9 per McHugh, J.

[3] See R. v. Mitchell [2000] VSCA 54 at [9] per Tadgell, J.A.

[4] R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 418 per Winneke, P.

[5] See Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292 at 294-6 per Mason, C.J., Wilson and Gaudron, JJ.; Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461 at 482 per Mason, C.J., Deane and Dawson, JJ. and at 506 per Toohey, J.

[6] [1998] HCA 2; (1998) 193 C.L.R. 1.

[7] R. v. T (1996) 86 A.Crim.R. 293; R., v. J (No. 2) [1998] 3 V.R. 602 at 614 per Winneke, P. and Charles, J.A. and at 642 per Callaway, J.A.; R. v. TJB [1998] 4 V.R. 621 at 633 per Callaway, J.A.

[8] See R. v. Best [1998] 4 V.R. 603 at 618 per Callaway, J.A.