R v Smith [2009] VSCA 85

3 The complainant boarded the train, put her feet up on the seat in front of her and went to sleep. Surveillance cameras on the train showed that the applicant also boarded the train at Flinders Street and sat in the seat diagonally opposite the complainant. The complainant intended to alight from the train at Merlynston station. The complainant failed to wake up in time to get off the train and remained asleep when the train arrived at the end of the line at Upfield. A surveillance camera showed the train driver endeavouring, without success, to wake up the complainant. The applicant did not get off the train but remained seated opposite the complainant.

4 From Upfield the train travelled back towards Flinders Street. As the train approached North Melbourne station, the complainant said that she woke up 'feeling fingers coming out of ... my vagina.' There was a man sitting diagonally opposite the complainant, who said 'Sorry' and the complainant said that she replied 'That's ok'. She said that she was feeling upset and 'she knew it wasn't ok.' She began crying, alighted from the train at North Melbourne station and signalled to the driver to stop the train. She told the driver that 'A guy had touched me'. She then waited until the police arrived. Members of the police force gave evidence that the complainant was crying and upset. She appeared to be slightly intoxicated. She told the police that when she woke up the male sitting diagonally opposite her was removing two fingers from her vagina. The applicant was arrested, interviewed and charged.

5 The applicant gave evidence at the trial. He said that he did not have to work on 29 December 2005 and travelled by train in order to see if he could find a bus or old car to acquire so that he could restore it. He had an all day ticket and thought it was easier to travel by train than drive. He said that if he saw something he would remember where it was and go back later. The applicant said that he tried to wake up the complainant at Coburg and at Upfield. That evidence was corroborated by the images recorded by a surveillance camera, which showed the applicant shaking the complainant's knee.

6 The camera also showed the applicant leaning over towards the complainant. He said in cross-examination that he was leaning towards the complainant but said that he was not looking at her. He said he was trying to read his phone and leant towards the complainant to get the natural light coming into the carriage. The applicant said that although the camera appeared to show him to be right on top of the complainant as the train approached North Melbourne, he was trying to read his mobile phone.

7 He said he alighted from the train at North Melbourne and moved to the next carriage in order to be close to the front of the train when he got off the train at Flinders Street station.

8 The applicant denied that he touched the complainant in any indecent way. He said: 'I never touched the lady.'

9 The applicant admitted that he told a number of lies in his record of interview. He said that he falsely told the police that he did not catch the train to Upfield, that he was in his car driving around looking at car yards, that he knocked on someone's door to ask them about a car, that the last time he had been to North Melbourne railway station was last week, that he had never been to Upfield and that he was not the person in the photographs shown to him by police. The applicant said that he lied, not because he knew that he had put his fingers in the complainant's vagina, but because he did not 'want to be connected with the rape'.

10 The first ground of the application for leave to appeal against conviction which was argued was that the trial judge failed properly to direct the jury as to the use that could be made of the lies told by the applicant to the police.

11 Counsel and the trial judge thought that the applicant could be convicted either on the count of rape or its statutory alternative, indecent assault.[1] Accordingly, his Honour instructed the jury that if they were not satisfied that the applicant had raped the complainant, they were to consider the alternative of indecent assault and gave directions as to the use which the jury could make of the evidence of lies in considering each offence. His Honour said:

[Y]ou can use the accused's lies ... as an unspoken or implied admission by the accused that he is responsible for the crime charged, or the statutory alternative which you are considering.

The trial judge went on to list the lies and said the defence advanced explanations for them which were inconsistent with consciousness of guilt of rape. Although his Honour said on at least two occasions that the jury could use the evidence of lies as an implied admission of rape and indecent assault, his directions for the most part concentrated upon the use of the evidence as consciousness of guilt that the applicant had committed the crime of rape.

12 Counsel for the applicant submitted that the only evidence that the applicant penetrated the complainant's vagina was the evidence of the complainant herself. None of the other circumstantial evidence, principally the distress exhibited by the complainant at North Melbourne station and the opportunity the applicant had to assault the complainant, could prove penetration. Accordingly, so it was said, the jury could only conclude that the applicant had lied from a consciousness of guilt if they first accepted the complainant's evidence. The evidence of lies told by the applicant was incapable of establishing consciousness of guilt either alone or taken together with other circumstantial evidence.

13 In my opinion, it is not correct to limit the use of lies as consciousness of guilt to those cases in which only the lies and other circumstantial evidence could establish the commission of the offence. The jury were also entitled to consider the direct evidence of penetration given by the complainant. The evidence of the lies told by the applicant was capable of supporting the inference that the applicant lied because he was conscious of penetrating the applicant. The jury could use the lies without first finding that the applicant had committed the offence of rape.

14 It was submitted on behalf of the applicant in the alternative that the trial judge's direction to the jury fell short of the requirements spelled out in R v Ciantar.[2] In that case it was held that evidence of flight from the scene of a motor car accident was properly left to the jury as evidence that the accused was conscious of his guilt of causing death by culpable driving as opposed to a realisation that he had engaged in a lesser form of unlawful activity, such as dangerous driving or failing to stop after an accident. The court held that the existence of a possible explanation of the accused's conduct that he was conscious that he had committed a lesser offence did not prevent the jury from using evidence of flight to support the inference that he had committed the offence for which he was charged. The court went on to outline the directions which a trial judge should give in a case where an accused faced alternative charges. It was contended that the trial judge's charge in the present case fell short of the requirements spelled out in R v Ciantar.

15 The difficulty with this argument is counsel's assumption, which was shared by all those who participated in the trial in the County Court, that it was open to the jury to find the applicant guilty of indecent assault. In fact there was no evidence which could found such a verdict. The only evidence of contact between the applicant and the complainant was the complainant's evidence of the withdrawal of fingers from her vagina. The complainant's statement to the train driver was not evidence of the commission of the offence of indecent assault. It was evidence supporting the credibility of the complainant.[3] Counsel for the applicant speculated that the applicant may have been guilty of some unspecified wrong doing short of rape. In my opinion that is not a basis for requiring directions modelled upon R v Ciantar.

16 Accordingly, the trial judge was not required to take each offence in turn and identify for the jury, by reference to that offence, the matters set out by the Court in R v Ciantar.[4] I do not think that his Honour's introduction of the alternative charge would have caused any confusion or could have operated to the prejudice of the applicant. His directions as to lies in respect of the count on which the jury found the applicant guilty were sufficient.

17 The next ground of the application for leave to appeal against conviction concerned the directions given by the trial judge to the jury with respect to mens rea.

The Crown must prove that at the time of sexual penetration the accused was either aware that the complainant was not consenting or aware that she might not be consenting but decided to sexually penetrate her, whether or not she was consenting.

The trial judge repeated this direction twice. Later in his charge, he said:

The fourth element [intent] would be satisfied if the prosecution can prove beyond reasonable doubt that the complainant was asleep, unconscious or so affected by alcohol as to be incapable of freely agreeing. Or that the accused was aware that the complainant might be in one of those states but decided to sexually penetrate her regardless of that possibility.

At the outset of the trial his Honour had made a like statement in his preliminary directions to the jury.[5]

19 His Honour does appear to have conflated the elements of consent by the complainant and intent on the part of the applicant. In the circumstances of this case I do not think the error caused any injustice to the applicant. The only live issue in the case was whether the applicant inserted his fingers into the complainant's vagina. The complainant said that he did. The applicant denied it. No-one suggested that the applicant penetrated the complainant without being aware that she was not or might not be consenting to his doing so. In those circumstances, it is hardly surprising that no objection was taken to this part of the charge.

20 It follows that the application for leave to appeal against conviction should be refused.

21 The application for leave to appeal against sentence requires consideration of the applicant's personal circumstances.

22 The applicant is 58 years old. He attended school in Williamstown and still lives in Williamstown. He left school at the age of 16 and completed most of a five year apprenticeship as a shipwright. Since he attained the age of 21 years, he has worked as a truck driver. The applicant married at the age of 18 years. The marriage produced four children but ended in divorce. The sentencing judge observed that the applicant had a 'close and supportive relationship with your partner and your own child and stepson'.

23 The applicant had previously been convicted in 2000 of an indecent act with a child under the age of 16 years. The sentencing judge was told that the applicant had drunk a large quantity of alcohol at a party and retired to bed. A 14 year old girl entered the house. The applicant masturbated himself in front of her. A community based order was imposed upon the applicant.

24 The applicant was in custody for nearly a year before he was sentenced. He was assaulted by a fellow prisoner, who saw on television images of the applicant taken by the surveillance camera. The applicant was placed in protective custody.

25 Counsel for the applicant submitted that the sentence imposed upon the applicant was manifestly excessive in the light of his age, his stable and supportive family environment, the period of custody spent by the applicant prior to sentence, his notoriety, the assault upon the applicant in custody, the service of the applicant's sentence in protective custody, his work history and reasonable prospects of rehabilitation.

26 On the other hand, the offence was serious. The maximum sentence for the offence was 25 years' imprisonment. The offence was perpetrated upon the body of a helpless girl travelling alone on public transport. The offence was opportunistic rather than planned, but the applicant did wait for considerable time for the opportunity to rape his victim. Specific deterrence was relevant, as was general deterrence. The courts should denounce and impose sentences to deter others from raping vulnerable women in public places. A victim impact statement shows that the complainant is scared of travelling on trains. Neither she nor any other member of the public should be placed in such fear.

27 In all the circumstances, I consider that the sentence was one which a reasonable sentencing judge could properly impose. I would refuse the application for leave to appeal against sentence.

28 I have read the judgment of Buchanan JA and I agree that the applications for leave to appeal against conviction and sentence should be refused, for the reasons given by his Honour.

29 I agree with Buchanan JA, for the reasons which his Honour gives, that the applications for leave to appeal against conviction and sentence should be refused.

[1] See s 425(1)(b) of the Crimes Act 1958.

[2] [2006] VSCA 263; (2006) 16 VR 26.

[3] Eade v R [1924] HCA 9; (1924) 34 CLR 154; Kilby v R [1973] HCA 30; (1973) 129 CLR 460. The trial judge in his charge made this clear.

[4] [2006] VSCA 263; (2006) 16 VR 26, [85].

[5] Counsel for the applicant and the prosecutor agreed before the jury was empanelled that consent was not in issue.