R v Taylor [2004] VSCA 98

R v Taylor [2004] VSCA 98 - VSCA 2004 case summary — Zoe

The applicant was approximately 48 years of age at the time when these offences occurred. The complainant was approximately 12 to 13 years of age. The complainant was the daughter of the "best friend" of the applicant's wife and was well known to the applicant. She regarded the applicant as a friend and a person whom she could trust. From time to time her mother, who at the relevant time was working, would leave the complainant in the care of the applicant and his wife. The complainant regarded the applicant as a "kind of father figure" in the absence of contact with her father. She looked upon him as a type of "mentor" from whom she sought advice. It seemed to be accepted at trial that the events which constituted counts 1 and 2 on the presentment were events of lesser significance than the events which constituted the offence alleged in count 3. The events which constituted the former counts were said to have occurred during the school holiday period in September 1999, when the complainant went to stay for a period of time with the applicant and his wife in their premises at Garfield in the State of Victoria. On a Tuesday night, which was said to be 21 September 1999, the complainant was alone in the house with the applicant; his wife having left the house to participate in a basketball game. The complainant said that she was sitting on the couch in the lounge room with the applicant when he pulled her around to talk to him, so that she was facing him. She said that he stroked her breast once with the back of his hand. This happened over the top of her clothing. He asked her if she wanted him to do that, and she said "No", to which he responded "Sorry, I thought that's what you wanted me to do". They were the events alleged in count 1 on the presentment; although there was some further evidence given by the complainant that, later on the same night, she was lying on the couch in front of the applicant who had his hand on her stomach underneath the top that she was wearing. During the course of the same "school holiday period", she said that she was again sitting on the couch with the applicant when he began "sucking and blowing into my ear", and squeezing her breasts underneath her top but outside her bra. Those events, which she said lasted about "20 seconds", were the subject of count 2 on the presentment. Following these events, the complainant said that, although she had told her mother that she did not want to stay at the house of the applicant and his wife, she never expressed to her mother any reason for her reluctance. She did say, however, that she was constantly "fighting" with her mother and felt that she was unable to confide either in her or her husband, who was the complainant's stepfather.

[3]

The events which constituted count 3 on the presentment occurred before Easter of the year 2000. Between the events which had happened in September 1999 and the events which constituted count 3, it would seem that the complainant continued to choose the applicant as the one in whom she would confide. She said that, notwithstanding the events of September 1999, she continued to trust the applicant because he was the only adult in her life to whom she "could relate". She said that she still "trusted" the applicant because he had told her that he would not do "those things again". Nevertheless, she said that during a period of approximately a week before Christmas 1999, whilst she was staying with the applicant and his wife, he would make "little advances" towards her by rubbing her legs in the absence of his wife or other people. In re-examination, the complainant elaborated on these events, saying that he had touched her "high up" on the inner thigh. Between Christmas 1999 and March/April 2000, she said that the applicant would ring her to speak to her early in the morning and would do so at regular intervals; approximately three or more times per week. She said that she was having "a few problems at the time" and found it "really easy to talk to him". Her mother and stepfather would leave for work early in the morning and she was in the house by herself before going to school. From time to time the applicant would ask her if he could come over to her house in Cranbourne to talk with her; and it appears that upon some five or so occasions between the commencement of the year 2000 and Easter time he visited her in the absence of her parents. On the last of those occasions, which she described as being in March or April (but before Easter) he had arrived at about 7.30 a.m. whilst she was alone in the house. He was sitting on a stool in the dining room whilst she was washing the dishes. He called her over and he started to kiss her. She said that he kissed her "on the lips" and then he started to touch her breasts underneath her top and bra and he was "rubbing his groin against my stomach". He then lifted up her top and her bra and commenced to lick and suck her breasts. She said that she "tried to get away" and that she did not want him to do it and wished to forget it. After this had happened, she said that he asked her if, when she was 16, she would let him give her an orgasm. She said that she had no real understanding of what that meant. She put an end to these events, which were the allegations constituting count 3 on the presentment, by telling him that he had "better go"; and he then left and went to work. She said that that was the last occasion upon which the applicant had interfered with her because she had "put a stop to it" by making excuses and telling him that he could not come over.

[10]

"You will recall, when I was discussing the matter of the assessment of witnesses, I said to you you may feel, in the absence of evidence independent of the complainant that supports and confirms her evidence, it would be unsafe to convict the accused. Now, you have heard both counsel submit there is no such evidence in relation to counts 1 and 2. In relation to count 3, [the prosecutor] submitted the evidence of the telephone calls recorded in the Telstra records, that is exhibit A, and the visits by the accused to the complainant's home when her mother was absent, a fact the accused admits in his record of interview, thus coming from a source independent of the complainant, does confirm and support the complainant's evidence on count 3, in relation to what she says the accused did to her, and I will not repeat those arguments. You will recollect that [defence counsel] submitted such was not so and you should not draw such conclusions from that evidence and, once again, I shall not repeat the arguments he addressed to you in that regard. Now, can I, as the judge, indicate to you that such evidence is capable and I underline the word `capable', of confirming and supporting the complainant's evidence in relation to count 3. Now that is as far as I go. You decide the facts, not me. Consequently, it is for you to say whether you accept such evidence and are prepared to act thereon and whether such evidence, in your judgment, does or does not, in fact, confirm or support the complainant's evidence in relation to the acts relied upon by the Crown in relation to count 3. Even if you so find it does, that does not complete the matter, because you must, even taking that evidence into account, still be satisfied beyond reasonable doubt that the Crown has proved all elements and the guilt of the accused before a verdict of guilty can be returned. Now be on your guard lest you fall into the trap of saying: `Well, the judge said it is capable of confirming and supporting, therefore it must be so.' Now, that would be an entirely wrong approach and contrary to your oath. Merely because I say such evidence is capable does not mean it does in fact. Whether it does, in fact, confirm and support is for you to find. That is your finding exclusively, not mine, and you remember no one must usurp your function in this trial. It is not my function to find the fact, merely to point to a source of evidence that is capable. You will recollect counsel were agreed that there is no evidence in this case that is capable of confirming and supporting the complainant's evidence of the acts she alleges in counts 1 and 2. As the judge, I do inform you such is the case. There is no independent evidence in this trial capable of supporting the complainant's evidence in relation to the occurrence of the acts alleged in counts 1 and 2."

[20]

It was submitted, on behalf of the applicant, that the trial judge was in error in directing the jury that the evidence of repeated telephone calls from the applicant to the complainant in early 2000, together with periodic visits to the house whilst she was alone, was evidence capable of supporting the complainant's evidence. I have earlier referred to the nature of his Honour's directions in this respect at paragraph [8]. Counsel submitted that neither of these pieces of evidence was capable of amounting to "supportive evidence" because they do not show "that the story of the complainant that the applicant committed the crime is true". Reference was made to R. v. Baskerville[1] and Doney v. R.[2]. Counsel contended that, at best, the evidence so left to the jury as "supportive evidence" was "intractably neutral"; and did no more than arouse suspicion. Further, it was put that the evidence could not be regarded as "more consistent with guilt than with innocence" and that - if that was so - it was not capable of amounting to corroboration. Indeed, it was contended that the suggested impact of the so-called telephone conversations and the applicant's attendance at the house were in several respects inconsistent with the complainant's version of events generally. Rhetorically, it was asked "Why would the complainant allow these calls and visits during this period if she had been molested by the applicant on the two occasions in 1999, which constituted counts 1 and 2 on the presentment?" Furthermore, it was said that the complainant herself had given evidence that the telephone conversations did not involve any inappropriate detail. In the light of these circumstances it was submitted that the objection taken by trial counsel for the applicant was well founded; namely that the evidence was not capable of amounting to corroboration. Although it was submitted that trial counsel for the applicant had objected to the impugned evidence going to the jury as evidence capable of lending support to the complainant's testimony, it is not entirely clear that that assessment is correct. It is true that when the trial judge first asked the applicant's trial counsel whether such material was capable of supporting what the complainant said had occurred to her, counsel said:

[32]

In evaluating the submissions of counsel on this application, it must be recognized that the trial judge is the person best equipped to determine whether certain evidence is capable of supporting or confirming the testimony of a witness whose evidence needs to be corroborated. The question whether a large number of phone calls made by an older man, within a limited period, to a young girl alone in her house, together with periodic visits to that girl whilst she was alone in that house, could support the evidence of that girl in respect of subsequent sexual molestation, is a matter best determined by an experienced trial judge familiar with the atmosphere of the trial. The applicant submits that the evidence which was left to the jury was "intractably neutral" in the sense that it could not be regarded as more consistent with guilt than with innocence. In those circumstances, it was submitted, it was incapable of amounting to supportive evidence. For my own part, I do not regard the evidence to be "intractably neutral" whatever that may mean. If it means evidence that can never be regarded by the jury as confirming the complainant's evidence, then I do not believe that this evidence falls into that category. The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. There can be no doubt that circumstantial facts can combine to provide evidence supportive of that of the person required to be corroborated, in as much as they may amount to circumstances leading to an inference that it was probable that advantage would be taken of an opportunity presented, or to show that the misconduct alleged was probable[8]. For example, evidence of distress, or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not. That, as it seems to me, is the essence of this case. The evidence does not cease to be capable of being corroborative or confirmatory by reason only of the fact that it is not independent evidence "unequivocally referable" to the commission of the crime. As McPherson, J. said in the case of Berrill[9]:

[39]

It follows that, in the face of the authorities to which I have referred, I cannot agree with the submission made to this Court that the evidence of the persistent telephone calls and visits to the complainant's house made by the applicant in the period preceding the events alleged in count 3 (calls and visits made when the girl was alone) was incapable of confirming or supporting the evidence of the complainant in respect of those events. The jury was entitled to find that this evidence strengthened the evidence of the complainant by demonstrating that the applicant had a predilection towards the complainant and was taking advantage of her isolation and "setting up" an opportunity to engage in the predatory conduct which was the subject of the relevant count on the presentment. It was well open, in my view, for the jury to conclude that the applicant's conduct, in the circumstances revealed, went beyond mere suspicion and was supportive, in the relevant sense, of what the complainant said that the applicant had done to her. Nor can I agree that the impugned evidence was "intractably neutral" in the sense in which that term has been used in the authorities put before us[15]. It was, in my opinion, open to the jury to find that it tended to connect the applicant with the crime in that it was more consistent with the guilt of the applicant than the innocent interpretation which the applicant sought to put upon it in his record of interview with the police. If the evidence had the attributes, which I perceive the jury was entitled to find that it had, then it could not be described as "intractably neutral" as that term has been used in Kerim's case[16], and R. v. Pisano[17]. As I understand that term it means that the evidence is of such an equivocal character that it lacks the capacity to enable a reasonable jury to conclude that it connects or tends to connect the accused to the crime charged. Thus it was said by the majority judges in Kerim (supra) that the medical evidence, demonstrating that the 15 year old complainant had a ruptured hymen, could not, in the circumstances of that case, confirm the complainant's evidence that she had been raped by the accused. Its "intractable neutrality" thus derived from the fact that the evidence was incapable of being evaluated by the jury as evidence tending to connect the accused to the crime charged. However, evidence of such a character is to be distinguished from evidence of identifiable behaviour which, even though conceded by the defendant, can be assessed and evaluated by a reasonable jury as evidence which may, or may not, demonstrate a connection between the accused and the crime charged. It is this latter type of conduct which the jury was asked to assess in this case; and it was evidence which, as I have said, was capable of strengthening the complainant's evidence in respect of the events relating to count 3.

[49]

The point, in my view, has no substance to it. The evidence, and the purpose for which it was being used, was totally unrelated to the evidence of "uncharged conduct". The latter type of evidence has a peculiar prejudice because it is evidence given by the complainant herself of conduct by the accused, uncharged in the presentment, which is discreditable and, thus, capable of being misused by the jury as evidence of propensity. Evidence, independent of the complainant's testimony, which is left to the jury, as it was in this case, as evidence capable of confirming the complainant's evidence is of a different kind and used for a different purpose. It is, as I have said, evidence which is quite independent of the complainant's own testimony , but which is capable of strengthening that testimony, in the sense that it connects or tends to connect the applicant with the crime charged. The fact that it is capable of being used by the jury to reinforce the complainant's testimony does not make it evidence of propensity. Indeed, it would, in my view. be a nonsense for the jury to be told that such independent evidence could be used by them for the purposes of confirming the complainant's evidence that the applicant had indecently assaulted her; but then to be told that they could not use the same evidence to demonstrate that he was the kind of man who would indecently assault her. It has never been suggested before, so far as I am aware, that evidence, independent of the testimony of a complainant, which is said to be capable of corroborating her testimony must be the subject of a "propensity warning". Mr. Priest was inclined to suggest that that was because the law "has advanced". However, I think not. It seems to me that a warning such as that proposed by counsel would be a contradiction in terms. I am, accordingly, of the view that this proposed ground cannot be made good and that leave should not be given to amend the application to include it. In the circumstances the verdict of the jury was not unsafe or unsatisfactory and the application for leave to appeal against conviction should be refused.

[52]

In my view, I think the sentences are disproportionate to the gravity of the offending, notwithstanding the fact that - in respect of the sentences on counts 2 and 3 - the applicant fell to be sentenced as a "serious sexual offender". The prior offending of the applicant, although entitling the judge to be "worried" about it, was well over 20 years old and could scarcely be described as serious examples of their kind. It is true that, in accordance with s.6D of the Sentencing Act, the judge was sentencing the applicant, for the offences comprised in counts 2 and 3, as a serious sexual offender and, for that purpose, was bound to regard the protection of the community from the offender as the principal purpose for which the sentence was being imposed. Furthermore, his Honour was also required by s.6E of the Sentencing Act to order the various sentences imposed to be served cumulatively unless he otherwise directed. Nevertheless, as it seems to me, the judge was not entitled in this case to impose sentences disproportionate to the gravity of the offending and to wholly cumulate those sentences without giving some explicit reason as to why it was necessary to do so. Although s.6D of the Sentencing Act requires a Court, in determining the length of a sentence to be imposed upon a serious sexual offender, to regard the protection of the community from the offender as the principal purpose for which the sentence is imposed, that does not mean that the judge is required to ignore principles of proportionality in imposing sentence. Imposing sentences which are proportionate to the crime is an entrenched principle of sentencing[22]. Although the power is given to the judge by s.6D(b) of the Sentencing Act, in sentencing a serious sexual offender, to impose a sentence longer than that which is proportionate to the gravity of the offence for the purposes of protecting the community from the offender, the judge should provide adequate reasons for doing so[23]. In this case it is clear that the judge regarded the "protection of the community" as the principal purpose of sentencing - as he was required to do - but it also seems clear from the length of the sentences imposed on counts 2 and 3, and the total cumulation of all sentences, that his Honour was imposing sentences disproportionate to the gravity of the offending. No reasons were given by his Honour for imposing sentence in this way, and to that extent I think he erred. That reopens the sentencing discretion. Although, in my view, the offending - particularly in respect of counts 2 and 3 - was clandestine and predatory, I do not regard it as calling for sentences of the length which his Honour imposed; nor do I think that it calls for the total cumulation which his Honour ordered. In my view, the appropriate sentencing on each of the counts should be as follows:

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