S J F v The Queen [2011] VSCA 281

CRIMINAL LAW - Uncharged sexual acts - Direction to jury - Correctness of R v Sadler [2008] VSCA 198; (2008) 20 VR 69 considered - R v Sadler properly decided - Misdirection by trial judge as to standard of proof applicable to uncharged acts used to support inference of guilt - Trial miscarried.

1 I have had the benefit of reading the judgment of Buchanan JA in draft and I agree with his Honour's reasons and proposed disposition of the appeal.

2 The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing two counts of maintaining a sexual relationship with a child under the age of 16 years. The first count related to TJ and the second count to her sister, AJ. At the conclusion of the trial, the jury were unable to agree in respect of count 1, the jury acquitted the applicant on count 2 and on a number of alternative counts to count 2 but found the applicant guilty of another alternative to count 2, namely, committing an indecent act with a child under the age of 16 years.

3 A plea was conducted and the applicant was sentenced to be imprisoned for a term of 18 months. The sentence was suspended for a period of 18 months.

4 The applicant seeks leave to appeal against the conviction.

5 The principal Crown witnesses were AJ and TJ. In the period covered by the presentment, AJ was aged between three and six years and TJ was three years' older. The complainants had known the applicant all their lives. He was a family friend of their mother. The applicant babysat the complainants on numerous occasions and sometimes they slept over at his house. The applicant was aged between 57 and 60 years during the period covered by the presentment.

6 The complainants gave their evidence by means of VATE tapes. Their evidence was general in nature. TJ said that the applicant was 'touching my privates and rubbing there ... and one time when my sister was sleeping, he - we went to his room and ... he was telling me to open my privates up so he could look in there and he kept touching there.'. TJ said that the applicant told her to sit on his knee while they were watching television and he would rub her vagina, 'He does that all the time.'. TJ said that sometimes she was wearing a skirt, other times pants, shorts,

pyjamas or just underpants, when the applicant touched her. Except when they went into his room, the touching was always over her underwear.

7 TJ said that the applicant would touch her vagina in the lounge room or anywhere they were alone. He would not do this if TJ's parents were nearby. AJ was often sitting watching television with them while the applicant was rubbing TJ's vagina. He also did this to AJ according to her sister.

8 TJ said that she thought she slept over at the applicant's house on three occasions and said that he did not touch her vagina then. She said that she thought she had two showers at the applicant's house. On one of those occasions the applicant washed her body, including her private parts.

9 When asked 'has he touched you in that area where you have your period and the babies come from?' TJ answered:

Well, I think - well, I do - he did touch me there and I have a tiny bit of memory that he touched there but I don't have the memory of where he touched me in there ... [he was] mostly just - not near - well, up from the hole.

10 AJ said, 'He's been flipping us - flipping us over ... and putting us in the shower and touching our private stuff without any face washer ... it's right up our privates.'. She said that the applicant would 'put his hands in our rude parts ... it hurts and I didn't want to tell him that ... '. She said she knew it was up in her rude parts 'because I felt it up there and I knew was going to do that 'cos he always does that when he - when I'm at his house ... '.

11 She said that in the lounge room 'He wasn't actually touching my rude parts ... it felt like it but then maybe two times or three or two times I felt like it, that it was touching my rude parts ... '. She felt the applicant's hand moving around on her 'privates and my bum'.

12 On occasions when AJ slept over at the applicant's house, 'He was touching our rude parts and yeah he was punching us and saying rude words and smacking us.'.

13 On the first day that the sisters went to the applicant's house, AJ was in the bath and the applicant, she said, 'touched our rude parts 'cos he was - he was cleaning our feet but he was touching our rude parts ... he was putting it right up there and it - it hurted ... he was touching [TJ's] rude parts too.'.

14 On an occasion when the children were in the lounge room dancing to music, AJ said that the applicant 'came in and he grabbed [TJ] and he was spinning her around and I think that - 'cos I can't remember I think that [the applicant ] touched her rude parts.'.

1. That the verdict of the jury is unreasonable and cannot be supported having regard to the evidence;
2. The learned trial judge erred in failing to order severance of the counts, and or to require separate trials with respect to each of the complainants, thereby leading to a substantial miscarriage of justice;
3. The learned judge erred in failing to correctly direct the jury on the standard of proof necessary in relation to the uncharged acts and or similar fact evidence, thereby leading to a substantial miscarriage of justice;
4. The learned trial judge's directions to the jury on the use of the evidence of the first complainant, TJ, in relation to the count that related to AJ were insufficient and inadequate in the circumstances of this case and let to a substantial miscarriage of justice.

16 Counsel for the applicant dealt with ground 1 and 4 together. He submitted that the evidence of AJ answered the description of the evidence in M v R.[1] In that case Mason CJ, Deane, Dawson and Toohey JJ said:

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance of the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a verdict based upon that evidence.

17 The evidence which supported the count upon which the applicant was found guilty, which was contained in a VATE tape of AJ's evidence, was as follows:

And putting us in the shower and touching our private stuff without any face washer.

It's right up in our privates.

He's putting his hands in our rude parts and it hurts - it hurts and I don't want to tell him that ...

And washing our feet and we had to sit down and then we standed back up again and he was putting his finger or his hand in my rude parts.

He hasn't got a face washer or towel. He just had his bare hand or bare finger in our rude parts.

He was rubbing [soap] in our privates and he was saying, "it wouldn't - it's not gonna hurt" still I didn't want it to go in there and I didn't want to tell him.

18 In the course of cross-examination, AJ said that in the shower the applicant would touch her 'in my private parts' and answered affirmatively a question as to whether she was sure that the applicant touched her in her 'rude parts'. In response to a suggestion that the applicant said he didn't touch her on the vagina, AJ said:

19 In my opinion, the evidence clearly established a sufficient basis for the jury's verdict. The evidence was clear and definite. I do not think that it can be properly said that the evidence was inherently compromised or lacked weight and there was no significant possibility that an innocent person has been convicted.

20 Although counsel for the applicant said that he was treating grounds 1 and 4 together, no separate argument was advanced in support of ground 4.

21 Pursuant to ground 2, counsel for the applicant submitted that the counts relating to each of the complainants should have been severed because the evidence given by TJ, which purported to corroborate the evidence of AJ, was so general and vague that it could not permissibly be used for that purpose. Counsel said that TJ asserted in the most general fashion that the applicant 'would do the same thing to [AJ]', that her answers to questions were vague and inadequate, finishing with ' ... I'd imagined that she'd done the same thing but just touching.'. In effect, counsel for the applicant contended that the evidence of each complainant was so vague or imprecise or uncertain that it was not of sufficient quality to enable it to be cross-admissible.

22 In my opinion, when viewed as a whole, the accounts given by the complainants confirmed each other in respect of the background, context and relationship between the parties. The evidence related to allegations over the same period of time in the same place and within the same setting. If evidence of the complainants were accepted, it established a pattern of conduct[2] by the applicant. The factors now relied upon by counsel for the applicant were matters for counsel to address and the jury to take into account in weighing the evidence of the complainants.

23 The trial judge was careful to direct the jury that they were to give separate consideration to each of the counts and she warned them against reasoning that because the applicant may have committed an offence against one complainant that he was the type of person who was likely to have committed offences against the other complainant. It would appear from the verdict returned by the jury, that they obeyed the judge's directions.

24 The main thrust of the applicant's case pursuant to ground 3 was that the trial judge failed to instruct the jury that they could only use evidence of uncharged acts and similar fact evidence bearing upon the question whether the applicant had committed an offence if they were satisfied beyond reasonable doubt that the evidence was true.

25 The position is that if evidence of uncharged acts is tendered only as providing the context of a charged offence, no separate direction is required as to the burden of proof, but if the evidence is tendered for the purpose of rendering the commission of an offence more likely, the jury should be directed that the evidence can only be used if proved beyond reasonable doubt.

[E]vidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed and ... if it was tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceived that the jury were likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the ... evidence as to the uncharged acts and as to the charged acts.[4]

27 At the hearing of the appeal, counsel for the respondent sought to argue that R v Sadler was wrong and should not be followed. That contention was not advanced at the trial. The submission was not foreshadowed in the respondent's outline of argument and was dealt with by simply providing this Court with an outline prepared by the Crown in connection with another case.

28 This Court will follow previous decisions of the Court unless persuaded they were clearly wrong.[5] In the present case we are not persuaded. R v Sadler is a recent, carefully considered decision and has been applied in this Court.

29 In the present case, the trial judge directed the jury that they could use evidence of uncharged acts in their deliberations. In relation to the count in respect of which a verdict of guilty was returned, the jury were instructed that they could use evidence from the complainant of instances other than those relied upon in support of the count, where the applicant touched or rubbed the complainant, evidence from the complainant's sister that the applicant touched that complainant and evidence from the complainant's sister that the applicant had touched her, the sister. Her Honour told the jury that if they found any of the uncharged acts to be true, they could use those acts 'as part of the evidence or reasoning leading to the conclusion that the accused committed all or any of the individual specified acts relied on'. Accordingly, it appears that her Honour contemplated that the jury would use the evidence of the uncharged acts as evidence of a sexual interest by the applicant in the complainant which could provide a factual basis to draw an inference of guilt.

30 Counsel for the respondent submitted that the trial judge did instruct the jury that they could only use the evidence of uncharged acts if they were satisfied beyond reasonable doubt that the acts had been committed.

31 In the course of what she termed 'preliminary comments' at the outset of the trial, her Honour said:

[I]in a criminal trial, the prosecution is required to satisfy you of the guilt of the accused beyond reasonable doubt. So you can see just from that explanation that it's clearly a higher standard than balance of probabilities or something that is more probable than not. When I tell you that the prosecution must prove or establish a matter or that you must be satisfied about a matter, that means you must be satisfied about that matter beyond reasonable doubt.

In her charge, the trial judge, speaking of evidence of uncharged acts, said:

[I]f in respect of count 2 you find any of the three categories of evidence that I have identified to be true, you can use such evidence as you find to be true as part of the evidence or reasoning leading to the conclusion that the accused committed all or any of the individual specified acts relied upon in respect of count 2.

32 Counsel for the respondent submitted the jury would have understood 'find to be true' as equivalent to 'be satisfied' and thus that they were required to use the evidence of uncharged acts only if they were established beyond reasonable doubt.

33 I do not accept this submission. Assuming that the jury recalled the trial judge's preliminary remarks when they retired to consider their verdict, I do not think it likely that they would have taken the judge to have been referring to the criminal standard of proof in dealing with uncharged acts, for her Honour used

different terminology in explaining her shorthand reference to the requirement of proof beyond reasonable doubt and later dealing with the evidence of uncharged acts. The expression 'find to be true' said nothing about the standard of proof.

34 Counsel for the respondent submitted in the alternative that, if the trial judge erred in failing to direct the jury that before they could use the evidence of the uncharged acts in such a fashion, they must first be satisfied of the evidence beyond reasonable doubt, no miscarriage of justice occurred because the jury's verdict showed that they gave careful and deliberate consideration to each count on the presentment and to the evidence in support of that count.

35 I do not agree that the judge's failure to direct the jury as to the standard of proof to be applied to the uncharged acts led to no miscarriage of justice. In my view, the possibility cannot be ruled out that the jury reasoned that the applicant did commit an indecent act with AJ because her evidence was supported by evidence of uncharged acts. In the absence of a direction by the trial judge, the jury may have used the evidence of uncharged acts in that fashion although they were not satisfied beyond reasonable doubt that the acts occurred.

36 Counsel for the respondent submitted that the acquittal demonstrated that the evidence of uncharged acts did not tip the balance in favour of the Crown in respect of the counts alleging offences against TJ. He said the evidence of the uncharged acts relating to AJ was of the same quality and thus did not lead to a finding of guilt of an offence against AJ. I do not accept this submission. The jury may well have formed different opinions as to the accuracy and credibility of the evidence of each of the sisters and the real possibility exists that evidence of uncharged acts did bring about the conviction in respect of the offence alleged against AJ.

37 Accordingly, I would grant the application for leave to appeal against conviction and allow the appeal. I would quash the conviction and order a retrial.

[1] [1994] HCA 63; (1994) 181 CLR 487, [9].

[2] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 391 (Winneke P).

[3] [2008] VSCA 198; (2008) 20 VR 69, [62].

[4] See also R v Werry [2009] VSCA 94, [2], [33]; PPP v R [2010] VSCA 110, [19].

[5] Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245, 269; Farrar v Western Metropolitan College of TAFE [1998] VSCA 25; (1999) 1 VR 224, 228-9; R v BDX [2009] VSCA 28, [125]-[152].