R v Trainor [2003] VSCA 200

Court of Appeal (Vic)|2003-12-10|Before: CHARLES, BUCHANAN and CHERNOV, JJ.A.

The applicant, who is 54 years of age, was arraigned in the County Court and pleaded not guilty to a presentment containing seven counts of committing an indecent act with a child under the age of 16 years, four counts of assault and 19 counts of incest. The victim of each of the charges was the applicant's daughter, who was born on 24 September 1981. The offences were alleged to have taken place between 24 September 1994 and 30 November 2000, when the complainant was between the ages of 13 and 19 years.

At the trial, no evidence was led on one count of assault, one count of committing an indecent act with a child under the age of 16 years and nine counts of incest. The trial judge directed the jury to return verdicts of not guilty on those counts. The applicant was found guilty on four counts of committing an indecent act with a child under the age of 16 years, two counts of assault and five counts of incest. The jury returned verdicts of not guilty on two counts of an indecent act with a child under the age of 16 years, one count of assault and five counts of incest, after considering evidence led in respect of those counts.

A plea was made on behalf of the applicant, and he was sentenced to a term of three months' imprisonment on two counts of assault, 12 months' imprisonment on two counts of an indecent act with a child under the age of 16 years, 14 months on two counts of an indecent act with a child under the age of 16 years, four years' imprisonment on one count of incest and five years' imprisonment on four counts of incest. With a measure of cumulation the applicant was sentenced to a total effective sentence of eight years' imprisonment with a minimum term of five years' imprisonment to be served before the applicant was to be eligible for parole. For all counts after the second count the applicant was sentenced as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991.

The prosecution relied solely upon the evidence of the complainant. The applicant denied all the complainant's allegations when he was interviewed by the police. The prosecutor called evidence from the mother and brother of the complainant, which supported the applicant's denial of the charges.

The applicant has sought leave to appeal against his convictions and against the sentence. The nature of the issues raised by the application for leave to appeal against conviction requires a description of the evidence led in respect of the counts which were left to the jury.

The complainant had two elder brothers and two younger sisters. The family lived on a 15 acre property at Darraweit Guim. The first incident occurred a few weeks after the complainant's thirteenth birthday when she was alone with the applicant in the sitting room watching television. The applicant told her to sit on the arm of the chair on which he was sitting and began to tickle her back. His hand moved to her front and he placed one hand on her breast on the outside of her clothing. (Count 1.) The complainant went to bed and was lying on her side. The applicant entered the room and again placed a hand on her breast over her shirt. (Count 2.) In about November 1994 the applicant walked into his bedroom and yelled out for the complainant. The complainant went into the bedroom and sat on the bed. The applicant touched her around the vagina and on the breast above her clothing. (Count 3.) The complainant got up and commenced to walk out of the room. The applicant grabbed her by the hair and pulled her. There was an intercom on the wall used to monitor the complainant's younger sister, who suffered from muscular dystrophy, and the complainant hit it with her elbow. The applicant asked if she was okay and then "it happened again". (Count 4.) A few weeks later the complainant was doing homework on the floor of her bedroom when the applicant entered and asked if she wanted a hand with her homework. The complainant declined the offer and said "I went to get up because I knew something was going to happen. Dad had been home from work, been drinking so I went to get up and I sort of fell on to my bed with my arms ... on the bed and my legs on the floor. ... I was pushed back down and I started crying, got upset and he put his hand on my breast" over the complainant's school dress. (Count 5.) The complainant then said that the applicant put his hand down the front of her skirt and touched her vagina area over the outside of her underpants. He rubbed her vagina. (Count 6.) A couple of weeks later the complainant was in the kitchen baking a cake. The applicant came into the kitchen and pushed the complainant against a wall. The complainant said that the applicant:

"... grabbed at my breast with his left hand, and I didn't know what was going on, I didn't know why, and I started getting upset. And then he pushed his hand down the front of my school dress ... and he put his hand down underneath my dress and my knickers, and he was rubbing my vagina area and I asked why, and he said it was my fault ... I was upset, and then he was still touching my breast and I was crying and he put his hand over my mouth so that no one could hear. I tried to yell out and no one heard. And then he pushed two of his fingers into my vagina ... and he kept doing it ... for like ... two or three minutes, I think." (Count 8.) "I got up and then he hit me." (Count 9.)

In 1995, after the applicant had returned from a period working in Indonesia, he began tickling the complainant's back when they were seated on a couch in the sitting room. The complainant said:

"and Dad then touched my breast and I got upset, I went to move and he pushed me back on to the couch so my head was on the ... armrest and ... he was still touching me ... and I couldn't move anywhere. I tried to ... kick my legs and move my arms. I was laying on my back, and Dad put his hands down the front of my ... pyjama shorts, and underneath my ... knickers ... and started touching my vagina area and I was upset, and he was rubbing it ... on my skin." (Count 10.)

The applicant told the complainant to roll over on to her stomach. She refused and he pushed her over on to her stomach. She said "Why me?", and he replied "Never ask, it's your own fault" and hit her hard on the ribs using a clenched fist. (Count 11.) The complainant started crying and the applicant pushed her face into the cushion. He then tried to put her hand on his penis, but she pulled it away. She said:

"Then he ... lifted up my bottom sort of ... and then he tried ... to push my legs apart with his hands, and I pulled them tight together so he couldn't, and then he pulled them apart with ... his hands, and he pushed his penis into my vagina and I started crying."

The intercourse lasted for about five minutes. The applicant ejaculated into the vagina of the complainant. (Count 12).

The applicant returned to Indonesia to work for another three months. After his return the complainant had just emerged from the shower when the applicant came into the bathroom. He pushed the complainant against the cupboard and starting touching her breast. She was wearing a towel. The towel came off, and then he put his penis in the complainant's vagina. The penetration lasted for approximately five minutes. (Count 15.)

In March 1996, the applicant commenced working on a project in Sale. The family visited him and stayed in a motel at Sale. On one occasion, the applicant took the complainant alone to his construction site in a Land Cruiser. On their way back to the motel the applicant stopped the car and attempted to touch her. The complainant tried to get out of the car, but the applicant grabbed her arm and pulled her back in. He pulled down her shorts and put his penis in her vagina, and that lasted "like five minutes". He ejaculated inside her. (Count 17.) Later the complainant was alone in the bedroom of her parents at the motel watching television. She said:

"... and yes it happened again ... Dad ... pushed me on to the bed ... It was like I knew what was going to happen again and I got upset. I asked why, what I'd done and it was my fault ... I'm pretty sure I was on my stomach and was laying across the bed and Dad put his penis in my vagina ... that was for like five minutes." (Count 20.)

On another occasion at Sale, when the applicant was staying in a unit, the applicant and the complainant went into the communal laundry where "he pushed me up against the washing machine and I think I had pants on and he pulled down my pants and it happened again like he put his penis into my vagina ..." (Count 21.) During the Christmas holidays in 1997, the family stayed at a caravan park at Mitta Mitta in a campervan and tent. The complainant went into the tent to find her father cooking dinner. She said:

"I think Dad pushed me on the ground and I was wearing shorts ... and I knew everything was going to happen again and ... I got upset and I asked why and ... it was my fault ... I yelled out and no one was there. And Dad was behind, like standing where the opening of the tent and he came down ... and pulled my shorts down and put his penis in my vagina and ... that lasted like five minutes and then he just walked out and I was sitting on the bed and I just got up and went in for a shower." (Count 23.)

In December 1997, at the family home at Darraweit Guim the complainant and her sisters were assisting the applicant with bricklaying. The complainant said:

"Dad picked up a shovel and ... pushed me up against the back of the house ... I tried to move and he got the shovel and pushed (the handle) up against my chin ... really hard so I couldn't talk ... And he was behind me ... He pulled down my pants ... or shorts and pulled my knickers down ... and then he put his penis into my vagina and that happened for five minutes ..." (Count 24.)

In 1999, the complainant went into the sitting room to find the applicant sitting on a couch. The complainant sat at the other end of the couch. She said "I went to get up, Dad pushed me and ... I hurt my back." The complainant was pushed on to the arm of the couch and fractured her coccyx. (Count 25.) The complainant remained on the couch. She said: "I think I had my pants on ... and Dad pulled down my pants and my knickers and put his penis into my vagina again." (Count 26.)

The applicant and his wife separated in February 2000. The applicant's wife occupied a flat in Gisborne and by October 2000 the complainant mostly stayed there with her. On one occasion, while the complainant was alone in her mother's Gisborne flat, the applicant knocked on the door. The complainant opened the door, the applicant entered and they were talking,

"and then I remember ... being on the floor and Dad pulled ... my pants down and my skirt - my knickers, and I was laying on my stomach. He put his penis in my vagina. I tried to move, I started crying ... I tried to get up - and then after about five minutes ... he got up and I think Dad just left and went home and I went in for a shower." (Count 30.)

In December 2000, the complainant went to the Sunbury police station and made the allegations which became the subject of the charges laid against the applicant.

The applicant gave evidence in his own defence. He denied all the allegations made against him. A man who had known the applicant for 40 years gave evidence of his good character and high reputation in the community.

The applicant was found not guilty on counts 3, 4, 10, 17, 20, 21, 23, 24 and 25.

The gravamen of the applicant's case was that the verdicts were inconsistent in that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion that certain counts had been established beyond reasonable doubt whereas a reasonable doubt existed in respect of other counts.[10]

The Crown case depended upon the evidence of the complainant being accepted. There was no supporting or corroborative evidence save for medical evidence of the fracture of the complainant's coccyx, which related to a count on which the applicant was found not guilty. Counsel for the applicant contended that there was nothing in the complainant's evidence or in the surrounding circumstances or in the evidence of other witnesses to justify the conclusion that the complainant's evidence was more reliable in relation to the counts of which the applicant was found guilty than it was in relation to the counts of which he was found not guilty.[11] Counsel said it should be inferred that the jury compromised disputes among themselves or otherwise fell into error.

The counts left for the consideration of the jury comprised 13 separate incidents. Between one and three counts were the product of each incident. Save in respect of one incident, the jury found the applicant either guilty or not guilty of all the counts arising from each incident. When the evidence in respect of each of the counts of which the applicant was acquitted is examined, a rational basis emerges for the verdicts.

The complainant's accounts of the acts the subject matter of counts 3 and 4 varied. She said in examination in chief that the applicant touched her twice on the vagina. In cross-examination that became once. The complainant's reaction to a quotation from the transcript of her earlier evidence was to say: "Oh, my God." Counts 17, 20 and 21 each concerned separate incidents. Under cross-examination the complainant's evidence of the sequence of the events changed. The evidence of the complainant with respect to count 20 was inconsistent with the evidence of her mother. With respect to count 17 the complainant gave varying descriptions of what occurred immediately prior to the act of sexual penetration which she alleged. The complainant said that the offence the subject matter of count 21 took place in a communal laundry that was open to the residents of the Sale unit and anyone using the stairs would walk past the laundry. Count 23 concerned an incident which occurred shortly before dinner in a tent. The complainant said that she yelled out. There was evidence that normally many persons would be nearby. Count 24 concerned an incident which occurred in an open location at the rear of the house during the afternoon. Count 25, the assault which caused injury to the complainant's coccyx, formed part of the same incident as count 26. The complainant told her mother at the time that the injury occurred when she was wrestling with her brothers.

There is no general rule that in cases where several sexual offences depend upon the testimony of the complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted.[12] The circumstances of a particular case[13] may justify different verdicts. In MacKenzie v. R.[14] Gaudron, Gummow and Kirby, JJ. said:

"... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."

In my opinion, there was evidence in the present case to support the verdicts said to be inconsistent.

Counsel for the applicant submitted that the circumstances of this case required the trial judge to direct the jury that, if they entertained a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally, although counsel who appeared for the applicant at the trial sought no such direction.

The direction is one endorsed in a series of cases in New South Wales culminating in R. v. Markuleski[15]. In that case, the accused was charged with a number of sexual offences. The direct evidence of the offences consisted of the evidence of the complainant. The jury found the accused not guilty on one count and guilty on the other counts. The Court held that the jury's different verdicts were justified in the circumstances, but held that the trial judge erred in his charge to the jury in failing to make some reference to the effect upon the assessment of credibility of the complainant if the jury found itself unable to accept her evidence with respect to any count. Spigelman, C.J. said:

"It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to counts. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought to be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."[16]

Counsel for the respondent contended that the New South Wales authorities must now be considered doubtful in the light of the statements of the High Court in MFA v. R.[17] and of the New South Wales Court of Criminal Appeal in R. v. GAR[18]. In the first case Gleeson, C.J., Hayne and Callinan, JJ. said:

"It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous."[19]

In my view, this statement does not bear upon the question whether a direction should be given in a case of multiple offences dependent on the evidence of one witness that a finding as to the truthfulness or reliability of the evidence of the witness on one count must be taken into account in considering other counts. In the second case Miles, A.J., with whom Spigelman, C.J. and Bell, J. agreed, said that a Markuleski direction need not be given simply because the complainant's evidence is relied upon to support more than one count, and it was not appropriate to give such a direction in that case having regard to the different nature of the disparate offences charged.[20] The qualification leaves Markuleski still requiring a direction where the complainant's evidence is the foundation of like charges with common facts. That is the position in present case. Accordingly, it is necessary to consider whether the trial judge's failure to give a Markuleski direction constituted appellable error.

In general, trial judges exercise restraint in directing juries as to the thought processes in which they should engage in determining the facts. There are certain areas, however, in which forensic experience is thought to confer knowledge upon judges which is generally denied lay persons, who accordingly require instruction. Confessions to police officers, the evidence of accomplices and identification evidence are examples of material which, it is assumed, might be misused by juries unless they receive appropriate guidance. Where an accused is charged with several counts, the practice is to direct the jury to consider each count separately and to consider it only by reference to the evidence that applies to it. The practice guards against the risk that juries might decide some counts and simply extrapolate their decision to other counts. In particular, if heeded, it militates against an accused found guilty on one count being treated as a person with a propensity to commit crimes.

Where an accused is charged with several counts alleging the same or similar offences against the same victim, the practice of giving a separate consideration direction is followed. The direction was given in the present case. Juries are perceived to give effect to separate consideration warnings, for they frequently find accused persons guilty of some counts and not guilty of others. It is not thought necessary or desirable to add a propensity warning in cases of multiple counts involving like offences against one victim.

The direction given in the New South Wales cases may be thought to undermine the separate consideration direction and swing a delicate balance towards propensity reasoning. The area in which the proposed direction is to operate is complex. As the Crown is obliged to establish guilt on each count beyond reasonable doubt, acquittal on particular counts among a number of counts all dependent on the evidence of the complainant may be due to doubt produced by factors affecting not simply the credibility of the complainant but rather the reliability of his or her evidence. If a warning of the kind required by R. v. Markuleski is to be given, presumably it should be qualified by directing the jury that a reasonable doubt as to the veracity of a complainant's evidence on one count caused by the manner in which the complainant has given evidence should be taken into account in assessing his or her evidence on another count, but a reasonable doubt on one count produced by signs of possibly faulty or inaccurate recollection or by the existence of a circumstance rendering the commission of the offence less likely does not affect the complainant's truthfulness in respect of other counts. As a matter of logic, the proposed direction should not be limited to potentially casting doubt upon the evidence of a complainant. The rationale for the direction would require a jury to take into account their view that the complainant was truthful in his or her evidence as to one count in evaluating his or her evidence on other counts. Further, it would seem to follow that a jury should also be directed that, if they form a view as to the truthfulness of the evidence of the accused in relation to one or more counts, they are to take that into account in assessing the truthfulness of the accused's evidence generally.

I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed

direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. In my view, in this case it was well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel,[21] without the necessity of the warning advocated by counsel for the applicant.

For the foregoing reasons, I would refuse the application for leave to appeal against conviction. The application for leave to appeal against sentence has not been pursued.

I have had the advantage of reading the draft judgment of Buchanan, J.A. I agree, for the reasons given by his Honour, that the application for leave to appeal against sentence should be dismissed. In particular, as his Honour shows, it cannot be said that the jury did not properly perform their function but instead, returned compromised verdicts. Moreover, the failure to give a direction along the lines suggested by Spigelman, C.J. in R. v. Markuleski[22] did not vitiate the trial. I doubt whether the learned Chief Justice sought to lay down an absolute rule that a judge should, where the only evidence of alleged multiple sexual offending is that of the complainant, remind the jury in the charge that, if they entertained a reasonable doubt about the truthfulness or reliability of the complainant on one count, they must take that into account in assessing her other evidence. Nevertheless, his Honour did consider that it will "often be appropriate" to direct the jury along those lines. In my view, however, whilst the possibility that such a direction, appropriately qualified, may be necessary in a particular situation in order to ensure a fair trial, ordinarily, such a course is fraught with difficulties and should be avoided for the reasons given by Buchanan, J.A.

[2] [2001] NSWCCA 290; 52 N.S.W.L.R. 82 at [6]; see also per Spigelman, C.J. at [186], per Wood, C.J. at C.L. at [265], per Grove, J. (with some doubt) at [280] and Simpson, J. and Carruthers, A.J.A. both concurring as to the law.

[5] 52 N.S.W.L.R. at 121-122, pars.[187]-[191].

[6] 52 N.S.W.L.R. at 135, pars.[260]-[262].

[10] Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 357 per McHugh, J.; R. v. Bacash [1981] VicRp 86; [1981] V.R. 923 at 929 per McGarvie, J.; R. v. Nanette [1982] VicRp 8; [1982] V.R. 81 at 83 per McInerney, J.

[11] Cf. Jones v. R. (1997) 191 C.L.R. 439.

[12] R. v. KET (1998) VSCA 73 at [39] per Winneke, P.

[13] Or even subtle differences in the way the complainant's evidence is presented: R. v. Markuleski [2001] NSWCCA 290; (2001) 52 N.S.W.L.R. 82 at 99 per Spigelman, C.J.

[20] Above at [24]-[35]. The appellant was charged with detaining the complainant with the intention of obtaining an advantage namely to keep her in his custody and under his control, and with having sexual intercourse with the complainant without her consent.

[21] Cf. R. v. Miletic [1997] 1 V.R. 593 at 606 per Winneke, P., Charles and Callaway, JJ.A.

Criminal Law - Sexual offences - Evidence of complainant the only direct evidence of commission of offences - Verdicts of guilty and not guilty - Verdicts not inconsistent - Trial judge not required to direct a jury that doubt as to evidence of the complainant in relation to one or more counts must be taken into account in respect of other counts - R. v. Markuleski [2001] NSWCCA 290; (2001) 52 N.S.W.L.R. 82, not followed.

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