R v Vella [2008] VSCA 28

Court of Appeal (Vic)|2008-02-27|Before: BUCHANAN, VINCENT and KELLAM JJA

Criminal law - Rape and intentionally causing serious injury - Withdrawal of complaint - Direction by trial judge not required - Application pursuant to s 37A of the Evidence Act 1958 refused - Unanimity of jurors not required as to all Crown evidence.

Criminal law - Sentencing - Delay - Not a mitigating factor when due to fear caused by the offender.

**1 After a trial in the County Court, the applicant, who is now 43 years old, was found guilty of one count of intentionally causing serious injury and one count of rape. The jury returned a verdict of not guilty to a count of false imprisonment. At the direction of the trial judge, the jury returned a verdict of not guilty to a count of burglary with intent to assault.

2 The applicant was subsequently sentenced to be imprisoned for a term of seven years and six months on the count of rape and for a term of three years and six months on the count of intentionally causing serious injury. One year and six months of the latter sentence were cumulated on the former sentence, producing a total effective sentence of nine years' imprisonment. A term of six years was fixed before the applicant was to be eligible for parole.

3 The applicant seeks leave to appeal against the convictions and sentence.

4 The person who was alleged to have been the victim of the crimes was a woman who had lived with the applicant in an apparently volatile relationship for between three and four years. The complainant decided to end the relationship. The parties separated but continued to see one another, and occasionally had sexual intercourse.

5 On 7 November 2003, the complainant arrived at her house on Phillip Island at about midnight, to find the applicant there. In her evidence the complainant said that she told the applicant that if he was going to stay the night he would have to sleep in the spare room. While she was making up a bed for the applicant, he attacked her. The complainant said in her evidence that the applicant grabbed her by the neck and arms, threw her into the walls of the house, grabbed her by the neck and sent her flying into the wall, seated on a chair. The applicant was yelling and screaming. He hit the complainant with the back of his hand, poured a bottle of beer over her head, and forced another bottle of beer between her lips, making her drink it. The applicant removed the complainant's clothes and again screamed at her and hit her about the head, and forced more beer down her throat. The applicant picked up the complainant and put her on the bed in the bedroom, took his clothes off and pulled her on to her back. She said: 'He took my pyjama pants off and he raped me.'

6 The first ground of the application for leave to appeal against conviction was that the trial judge failed to properly direct the jury as to how they should treat evidence of complaint by the victim, in that he failed to give any directions as to the significance of the fact that, on 18 May and 15 December 2004, the complainant told the police that she did not want to pursue any complaint against the applicant. She gave evidence that she recanted 'out of fear'.

7 On 8 November 2003, the complainant spoke by telephone to a friend, one Joe Loh, and arranged to meet him. The complainant told Loh that the applicant had 'beaten into me and had sex with me'. Later that day, she complained to the police. The trial judge told the jury that evidence of complaint was not evidence that a crime had been committed, but could be used by the jury as bearing upon the consistency of the complainant's account and thus her credibility. On the other hand, although the judge recounted the evidence that the complainant withdrew any complaint, he did not tell the jury how they could use that evidence. Consequently, the applicant contended that, particularly in the light of the trial judge's direction that the complaint bolstered the complainant's credibility, his failure to tell the jury that the withdrawal cast doubt upon her credibility caused the trial to miscarry.

8 While as a general rule a trial judge should instruct a jury that, in evaluating the evidence of a woman who claims to have been raped, they can take into account that she made no complaint at the earliest opportunity[1], I do not think it is incumbent upon a trial judge to warn a jury that withdrawal of a complaint reflects upon a victim's credit. Early complaint or lack of it is a matter as to which a jury generally needs instruction, particularly instruction that making a complaint does not prove the commission of any crime. A later change of heart by a complainant is a different matter. In my opinion, a direction from the trial judge was not required in order to enable this jury to properly evaluate the withdrawal of the complaint. Counsel who appeared for the applicant at the trial sought none, contenting himself with exploiting the withdrawal in his address to the jury.

9 The next ground of the application, which was said to buttress the first ground, was that the trial judge erred by refusing an application by counsel for the applicant to recall the complainant in order to put to her that she had engaged in sexual intercourse with one Dean Tolk on the night preceding the alleged rape.

10 In the course of cross-examining a doctor who examined the complainant, counsel for the applicant discovered, from notes made by the doctor, that the complainant had told the doctor that she had had unprotected sexual intercourse with a friend the night before the alleged rape. The friend, according to the complainant's evidence, was Dean Tolk. The complainant in her evidence said that in the morning after the alleged rape she met dean Tolk by chance on the beach and told him that the applicant had assaulted her, but not that he had raped her. Later that morning the complainant told Joe Loh that the applicant had raped her. The complainant said that Tolk was 'like a brother, sort of', but she was 'not very close' to him. She had known him for a year. When asked why she had not told Tolk that the applicant had raped her, she said, 'Too personal, and shame.' On the other hand, she had known Joe Loh for 15 years.

11 Counsel sought leave pursuant to s 37A of the Evidence Act 1958 to recall the complainant to confirm the matter revealed by the doctor's notes. The section provides that, without the leave of the court, a complainant in a case involving a sexual offence shall not be cross-examined as to her sexual activities. A court is not to grant leave 'unless it is satisfied that the evidence has substantial relevance to facts in issue or is a proper matter for cross-examination as to credit'. The section also provides that evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded as being proper matter for cross-examination as to credit, in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant. The trial judge ruled that the evidence counsel sought to adduce would not have substantial relevance to any fact in issue in the trial, and there were no special circumstances by reason of which the evidence would be likely to materially impair confidence in the reliability of the evidence of the complainant.

12 In this Court, counsel for the applicant submitted that it was material to establish that the complainant had been intimate with Tolk less than 48 hours before she chose not to tell him that she had been raped by the applicant. I do not agree. In my opinion, the fact that the complainant had sexual intercourse with Tolk did not render it more likely that she would complain of rape to him, thereby making significant her failure to do so. The nature of the complainant's relationship with Tolk made it less rather than more likely that she would first complain to him. The exercise of the judge's discretion did not miscarry.[2]

13 The third ground of the application was as follows:**

3. The trial on count 2 miscarried by reason of:

(a) the plea of guilty entered by the applicant on count 3; and

(i) the jury could return a verdict of guilty even if not satisfied beyond reasonable doubt that the incident occurred in the circumstances alleged by the complainant; and

(ii) if the jury entertained a reasonable doubt about the complainant's account of the circumstances in which the assault occurred, it was nevertheless open to them to return a verdict of guilty.

**14 Count 2 alleged that the applicant intentionally caused serious injury to the complainant. Count 3 alleged that he recklessly caused serious injury to the complainant. At the outset of the trial, the applicant pleaded guilty to count 3.

15 The Crown case, based upon the evidence of the complainant, was that the applicant assaulted the complainant before raping her. Defence counsel, on the other hand, put to the complainant in cross-examination that she and the applicant had consensual sexual intercourse and that the applicant assaulted her next morning upon learning that the complainant had obtained an intervention order against him.

16 The trial judge instructed the jury that, before they could convict the applicant on count 2, they must be satisfied that the applicant intended to inflict serious injury upon the complainant, even if not satisfied 'that the incident occurred in the circumstances alleged by the complainant'. The trial judge also instructed the jury that if they entertained a reasonable doubt as to whether what [the complainant] described as having occurred that night did in fact occur ... it would be open to [them] to return a verdict of guilty on count 2 if ... satisfied that the accused intended to cause serious injury'.

17 Counsel contended that the directions permitted the jury to find the applicant guilty by either accepting the version of the assault given by the complainant or rejecting the complainant's account but ascribing to the applicant on his version the mens rea necessary to establish count 2. Counsel submitted that, having left the jury with those alternatives, it was incumbent upon the trial judge to direct them that it was necessary that they be unanimous in finding that the assault occurred in the way alleged by the complainant, or in the way alleged by the applicant's counsel, with an intention to cause serious injury. In the absence of such a direction, the jurors might have differed as to how they arrived at their verdict. Accordingly, so it was said, the jury's verdict on count 2 was bad for uncertainty.

18 The trial judge told the jury that a verdict of guilty required unanimity. He added:**

That does not mean that your individual processes of reasoning must be the same. Some of you may arrive at your decision by accepting or rejecting different pieces of evidence from those accepted or rejected by your fellow jurors, or by applying a different process of reasoning.

His Honour also told the jury that the Crown did not have to prove the truth of everything the Crown witnesses said, but only the elements of each offence. In the case of count 2, those elements were the infliction of serious injury by the applicant with the intention to cause serious injury.

**19 No exception could be or was taken to those directions. Members of the jury were required to be unanimous in finding the elements of count 2 were established. Unanimity as to the attendant circumstances deposed to by the complainant was not required. Accordingly, members of the jury could differ as to whether the injury to the complainant was sustained at night or the following morning, and whether the assault was triggered by the revelation of an intervention order. The cross-examination of the complainant did not reveal any significant difference between the complainant and the applicant as to the acts constituting the assault so that it could be said that the applicant's version disclosed recklessness rather than deliberate intention. In my opinion, there was no occasion for the trial judge to direct the jury that they were required to be unanimous in either accepting the complainant's testimony or the matters put in cross-examination with an added element of intent.

20 Counsel for the applicant relied upon the decision in R v Trotter[3]. In that case, the complainant gave evidence of two separate indecent assaults. It was held that the conviction of indecent assault was uncertain for, whilst it was clear that the jury must have been unanimous that the applicant had committed an indecent assault, it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of indecent assault. All members of the jury might have been unanimous as to the fact that the applicant had committed an indecent assault, but some members of the jury might have arrived at that conclusion on the basis of one assault, and others on the basis of the other assault. In the present case, on the other hand, the prosecution and defence advanced but one assault and only differed as to the time at which it occurred and whether it was precipitated by the applicant learning that the complainant had obtained an intervention order against him. If the jurors follows the trial judge's directions, they would have been unanimous in finding that the applicant deliberately caused the same serious injuries to the complainant.

21 For the foregoing reasons, I would refuse leave to appeal against the convictions.

22 The sole ground of the application for leave to appeal against sentence was that the sentencing judge erred in concluding that it would be perverse to mitigate the applicant's sentence for delay.**

**23 The offences occurred between 7 and 8 November 2003. The applicant was interviewed on 11 November 2003. The complainant then retracted her complaint to the police on two occasions and at trial explained the withdrawal in the following way: 'I decided basically out of fear that they wouldn't be able to protect me.' The trial did not commence until 29 November 2006. The sentencing judge found that the delay was caused by the complainant's reluctance to proceed, that her reluctance was due to fear, and that fear was justified. It was not contended that these findings were incorrect.

24 In the time which elapsed between the commission of the offences and trial, the applicant achieved a measure of rehabilitation, in that he married a woman whom he treated well, undertook the care and support of her four children, voluntarily attended for treatment for his abuse of alcohol, gave up alcohol for the duration of his new relationship, received counselling for anger management, and displayed insight into his behaviour in the past and its relationship to alcohol.

25 The trial judge recounted the steps taken by the applicant to reform his way of life and evidently treated them as mitigating factors. His Honour only rejected delay in itself as a mitigating factor. He was entitled to find that the delay was due to fear engendered in the complainant by the applicant, and in my opinion was entitled on that basis to refuse to take the delay itself, rather than its consequences, into account in favour of the applicant.

26 In my view, no error attended the exercise of the sentencing discretion. For the foregoing reasons, I would refuse the application for leave to appeal against sentence.

27 I agree, and for the reasons advanced by the learned presiding judge.

29 The order of the Court is that the applications are dismissed.**

[1] See Kilby v R [1973] HCA 30; (1973) 129 CLR 460, 465 (Barwick CJ); Crofts v R [1996] HCA 22; (1996) 186 CLR 427, 434 (Dawson J).

[2] See R v O'Neill [2003] VSCA 204; (2003) 7 VR 408, 418 (Vincent JA).

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