R v Van Doorn [2004] VSCA 65

R v Van Doorn [2004] VSCA 65 - VSCA 2004 case summary — Zoe

[44]

As I have already indicated, the applicant gave evidence in which he set up an alibi for the period between 1 January 2000 and 5 February 2000. He was engaged in building operations, he said, in company with a man named Lazenby at a house owned by people called Whitfield. They worked from early in the morning to late in the evening in the days between 1 January 2000 and 10 January 2000; and that thereafter he and Lazenby had worked at the applicant's own house for similar hours until well into February. The Whitfields and Lazenby gave evidence in support, although the evidence varied as to the extent of hours worked. The applicant said that in that period he had only seen J.S. and K.B. once at a local cinema, and - on one occasion only - had they been in his car. He said that the girls often telephoned him and his guess was that he spoke with them five, six or seven times during the period but had received dozens of messages from them on his answering machine. The girls, he said, were always wanting cigarettes and made all sorts of promises about sexual favours in return. The applicant said that he had constantly told the girls "no time, no time". He said he did not mind receiving the telephone calls at the beginning but it started to annoy him "because it never stopped". He said that in the recorded telephone calls of 13 March 2000, the girls talked in the same way as they had in previous calls that he had received from them. In his responses to them he was never being serious and "was just talking the way they talked". Never had he committed sexual acts with any of the complainants. In respect of the meeting at the cinema he said that he had received a telephone call from them between 8.15 and 9 p.m. They told him that they were short of $6 for the cinema tickets and they also wanted some cigarettes. He said that he decided to help them out and drove to the cinema. He said about three or four boys and three or four girls came up to his car and he gave them cigarettes and money. The next time that he had seen K.B. and J.S. was on 5 February 2000 when he had picked them up at a bus stop in Morwell. He said that he was asked to drive to a school to pick up a friend. He did so but that friend would not come. Whilst at that location they purchased "an ice coffee Big M" which they shared. He stated that whilst at the school, K.B. asked if she could have a drive of the car because she was going to apply for a learner's permit in April 2000. The applicant told them that they could not do that as they would get "picked up" for driving without a permit. He said that the girls suggested a location in "the bush" and directed him up a road (that he now knew to be Merrivale Road) to a place where K.B. had her first drive of the car. He thought that he may have had the sleeping bag on the back seat of the car, but that he'd put it in the boot to make room. Thereafter they returned to the school where they picked up the friend of the girls. This friend (presumably C.L.), the applicant said, was drunk and soaking wet, and they went to McDonalds or a Red Rooster shop. When there the girls wound down the car windows and yelled out to boys. This had made him angry because "you know young girls in the car with an older fellow, and nowadays people think straight away that something is bad". He then threw them out of the car and drove home. He conceded, in cross-examination, that his evidence at trial - particularly that which related to the girls having been in the car and being driven to the "bush location" - was at odds with what he had told police in the record of interview. In that respect, he conceded, his interview contained "lies", but that they had been told because he feared that, if he told the truth, the police would believe all that the girls had said about "sexual encounters", which were also "lies".

[61]

The substance of this ground overlaps some of the arguments which have been made by the applicant in support of additional grounds 1 and 2. In his written submissions, the applicant contended that the judge failed to instruct the jury properly upon the law. In particular he submitted that it was wrong to have told the jury that they could "use the tape recordings, the "Big M" container, the sleeping bag and the carton of cigarettes found in his possession when investigated", as supportive of the evidence of the complainants. Once again, I see no error in his Honour's directions in respect of these matters. His Honour gave what appear to me to be adequate directions as to the elements of each of the offences which the jury had to consider and directed their attention to the relevant evidence which they should consider in determining whether the Crown had proved those elements. He also told the jury that they should look for corroboration and referred them to the evidence which, in his view, was capable of amounting to such. In response to an exception taken by counsel, he repeated those instructions. Those further instructions were again the subject of a request for clarification, and ultimately a direction was given which, whilst not perfect, I think satisfactorily explained the division of responsibility between judge and jury in respect of corroborative or supporting evidence. It was not contended that any of the matters which his Honour left to the jury was incapable of amounting to corroboration. In my view, each of the matters so left was capable of confirming or corroborating the evidence of the complainants having regard to the matters in issue at the trial. As I have said, the "pretext conversation" was capable of strongly supporting the complainants' evidence; and the finding of the "big M" container in the "bush location", the recovery of the carton of "Long Beach cigarettes" in the applicant's possession and the possession by the applicant of the sleeping bag were all capable of supporting the girls' evidence. Under cover of this ground, it was again submitted by the applicant that the judge had "reversed the onus of proof" in respect of the defence evidence. Insofar as this was a repetition of the argument raised under additional grounds 1 and 2, I again say that I cannot accept it. The judge told the jury that, at all times, the onus was on the Crown to prove the charges beyond reasonable doubt; and that if they considered that the evidence of the applicant and his witnesses raised a reasonable doubt that the offences had occurred at the time and place which the complainants alleged, then they should acquit. Indeed, it seems to me that those directions may well have played a part in the jury's verdicts on counts 1 and 2.

[64]

It would appear from the transcript that this direction was in accordance with the way in which counsel had left the issues to the jury in their final addresses. The direction is in a form which itself is "strikingly similar" to the form of direction contained in the "Extension Charge Book" (No.8) provided to County Court Judges. Far from producing any miscarriage, it seems to me that the directions so given were unduly favourable to the applicant in the context of this case. That no doubt is the reason why no exception was taken to them by counsel for the applicant at trial. This was a case where the evidence of the complainants, if accepted as true and reliable, was directly relevant to many of the issues that the jury had to determine. The complainants were in each other's company on the occasions when it was alleged that the various offences occurred. The three of them spoke of travelling in the car to "the bush" on at least two occasions, and K.B. and J.S. said that they went with the applicant to "the bush" on at least three occasions. K.B. and J.S. said that, on the two occasions when C.L. was in the car, they saw the applicant sexually assault C.L. K.B. gave evidence of going to the applicant's house in Moe, and of being assaulted by him there. J.S, gave evidence that she was there with K.B. and saw the applicant sexually interfering with K.B. The two of them said that, on the next occasion they were with the applicant, he took them to the Traralgon farmhouse. All of these matters were denied by the applicant, and in issue at the trial. It was not necessary for the jury to be satisfied of "striking similarity" before the evidence of the respective complainants could be used in the determination of those issues. Their evidence was "relevant", otherwise, to facts in issue within the meaning of s.398A of the Crimes Act. Indeed this was not a case where the jury was required to be satisfied of a "striking similarity" before they could use the evidence of assaults upon one of the complainants to support the evidence of assaults upon the others. This was not a case where the identity of the alleged offender was in issue; rather the issue was whether the applicant had committed the offences which each of the complainants was alleging he had[5].

[69]

These grounds assert error on the part of the judge in instructing the jury that the evidence of each of the complainants could be used as "similar fact evidence" when such evidence did not pass the criteria required for similar fact evidence. Further they assert that his Honour allowed evidence of other crimes alleged in the presentment to be put to the jury and, in doing so, caused a substantial miscarriage of justice by creating a "problem of duplicity". Under cover of these grounds the applicant submitted that the complainants had lied to the police, to their parents and to the Court and that it was a criterion of "similar fact evidence" that - before it could be used as such - the evidence had to be "credible". It was put that, on analysis, the evidence of the complainants did not have "striking similarities"; that it demonstrated that they were "liars" and that - when they first made their allegations - they were "drunk" and had been ejected by the applicant from his car. Their evidence could be seen to be "a concoction". Such evidence, it was said, could not amount to "S.F.E." (which I assume means "similar fact evidence"). The error, it was submitted, was compounded by the fact that his Honour should have told the jury, but did not, that the evidence of "alibi witnesses" was also able to be used by them as "similar fact evidence", particularly in the light of his Honour's directions that - according to the alibi witnesses - the applicant was at another place. Again it was asserted that his Honour had not given a "propensity direction" as requested by defence counsel and that a "separate consideration" direction was not the same thing as a "propensity direction". It was further submitted that his Honour was in error in failing to instruct the jury on what the action was that the Crown relied to prove counts 3 and 12. He also submitted that his Honour gave two "separate actions" to support count 2, and three "separate actions" to support count 11, which demonstrated that the convictions were bad for duplicity, were perverse and unsafe.

[70]

I cannot accept the arguments which the applicant mounts in support of these grounds. I have already dealt with the contention that his Honour erred in leaving the complainants' evidence to the jury as "similar fact evidence", and the proposition that the complainants' evidence did not possess such characteristics as to suggest that the evidence of one of them bore "striking similarities" to the evidence of the others. These directions, as I have said, were - if anything - favourable to the applicant, and were not the subject of any exception taken to his Honour's charge. Whether the complainants were "liars", or were "credible" or otherwise, were matters for the jury and were, no doubt, the subject of submissions made to the jury by counsel. This Court has not been favoured with a transcript of addresses, but I have no doubt that if his Honour's charge had not accurately reflected the submissions of counsel, exception would have been taken. Furthermore, his Honour gave full and accurate directions to the jury as to the use which they could make of the defendant's alibi evidence. Again, I have previously addressed this ground of complaint. This evidence was not "similar fact evidence", as the applicant's submissions assert. It was evidence, as his Honour told the jury, available to be used by them as casting doubt on the reliability of the complainants' evidence. Nor do I accept the assertion, made by the applicant under cover of these grounds, that no "propensity direction or warning" was given by his Honour; a matter which I have addressed in dealing with ground 3. Furthermore, the submission that his Honour failed to instruct the jury on "what the action was that the Crown relied upon to prove counts 3 and 12", and the further submission that he gave to the jury "multiple actions" to support grounds 2 and 11, are submissions which, in my view, are without substance. The jury returned verdicts of not guilty in respect of the latter counts and did so upon directions which, as it seems to me were appropriate to bring home to them the relevant evidence which they should consider. So far as counts 3 and 12 are concerned, and assuming that the applicant, in using the word "action" means evidence, his Honour - on my reading of his charge - gave full and adequate directions as to the evidence upon which the Crown relied to prove that the applicant had penetrated the complainant K.B. with his tongue at the "Traralgon farmhouse" (count 3), and, likewise, gave adequate directions to bring the jury's mind to the evidence relied upon by the Crown to prove the penile/vaginal penetration of K.B. on one of the occasions upon which he had taken the complainants to the bush.

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Court

Decision date

Before

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Judgment (103 paragraphs)

Parties