CRIMINAL LAW - Application for leave to appeal against conviction - Sexual penetration of a child under 16 - Unsafe and unsatisfactory verdicts - Whether the complainant's allegation of digital penetration was elicited as a result of leading police questions - Whether the complainant's evidence was inconsistent with her allegations to police and the notes she made before the police interview - Allegation of digital penetration made voluntarily - Verdicts not unsafe or unsatisfactory - R v Klamo (2006) 18 VR 644; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen (2007) 203 CLR 457 applied - Application for leave to appeal refused.

1 After a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under 16 and seven charges of an indecent act with or in the presence of a child under 16, and was sentenced as follows:

Indecent act with or in the presence of a child under 16 [Crimes Act 1958 (Vic) s 47]

Indecent act with or in the presence of a child under 16

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

• Forensic sample order pursuant to the Crimes Act 1958 (Vic) s 464ZF(2);
• Disposal order pursuant to the Confiscations Act 1997 (Vic) s 77(1);
• Sentenced as a serious sexual offender in respect of Charges 2 - 8 pursuant to the Sentencing Act 1991 (Vic) s 6F and required to report for a life period pursuant to the Sex Offenders Registration Act 2004 (Vic) s 34.

2 The applicant seeks leave to appeal on the following grounds (grounds 1-3 were abandoned):

4. The verdicts on charges 5, 6 and 7 are unsafe and unsatisfactory because the showing of a picture cannot be an indecent act with or in the presence of a child under 16 within the meaning of s 47 of the Crimes Act 1958.

5. The verdict on charge 3 is unsafe and unsatisfactory in that no properly instructed jury could have been satisfied that an act of sexual penetration actually occurred at the 'Stud Park incident'.

6. The verdicts on all charges are unsafe and unsatisfactory.

3 The Crown case was as follows. The applicant, now aged 64, began a relationship with the complainant's mother, DH, in 2001. DH and her four children moved into a house near the applicant and the applicant became heavily involved in the lives of DH and her family. He frequently visited their house and stayed over night.

4 In early 2004, the complainant began tennis lessons. The applicant would take the complainant to and from her tennis lessons each week. He would stay and watch her lessons. Then they would have dinner and go to his home, where they would stay for an hour or so in the applicant's office, a converted garage. The tennis lessons ceased in 2008, when she turned 13 years old. The applicant gave her gifts throughout the period of offending, including two mobile phones, an MP3 player, clothing and tennis equipment. The applicant did not purchase gifts for any of her siblings.

5 It was alleged that during this period the applicant systematically groomed and manipulated the complainant. The first indecent act between the complainant and the applicant occurred in 2005 after the applicant had driven her home after a tennis lesson. The complainant, DH and the applicant were sitting and talking on DH's bed. DH left the room to make coffee and the applicant rubbed the complainant's vagina on the outside of her clothing (charge 1).

6 The next incident occurred at the Stud Park Shopping Centre (the 'Stud Park incident'). The applicant had driven the complainant to the shopping centre in the evening to buy food for school lunches. The applicant parked at the back of the shopping centre in or near the loading bays. He was driving a white Mercedes van. The applicant pulled down the complainant's pants and licked her vagina (charge 2). He also placed his finger inside her vagina (charge 3).

7 The applicant's home office contained a futon sofa bed. He and the complainant would sit on the futon to watch TV. The applicant would place his hand down her pants while they sat on the futon and lick her vagina. The applicant would pull his pants down and place her hand on his penis and move her arm up and down. On one occasion the complainant masturbated the applicant and he ejaculated on her hand (charge 4).

8 Charges 5, 6 and 7 involved the applicant, on different occasions during the offending period, inviting the complainant to look at pornographic images. On one occasion when they were at the applicant's office, he showed the complainant a picture on his mobile phone of his penis (charge 5). The complainant asked the applicant what the picture was. The applicant laughed and as he walked out of the office he showed her his penis (which constituted charge 8). He also showed her a picture on his phone of her mother with a dildo in the background (charge 6). On another occasion he showed the complainant a pornographic image on his computer of a woman lying on a bed or table being penetrated orally and vaginally by several men (charge 7).

9 The Crown also led evidence of uncharged sexual conduct. The complainant also described behaviour of simulated sex, which the applicant called 'koala hugs'. The complainant would sit on the applicant, fully clothed, with her legs around him. The applicant would push her bottom back and forth as he kissed her on the mouth. He would also rub his penis against her vagina and suck her breasts.

10 An occasion on which the applicant rubbed the complainant on the vagina while she was in her bunk bed and her sister was present formed the basis of charge 9. A verdict of not guilty was entered in respect of that charge following a successful no case submission. This incident was then relied on by the Crown as an uncharged act.

11 The offending stopped in approximately 2008 when the complainant moved into the garage at her family home. She made a complaint to a school friend in April 2008 and a VATE was conducted later that month.

12 The applicant initially submitted that the conduct alleged under charges 5, 6 and 7 of the indictment was incapable of supporting a conviction under s 47 of the Crimes Act. Section 47 provides:

(1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.

13 The applicant submitted that the showing of pictures cannot amount to an indecent act 'with or in the presence of a child' under s 47. The applicant contended in his written submission and at first in oral argument that the use of the word 'with' in s 47 connotes some form of participating conduct, and the juxtaposition of the word 'with' and the phrase 'or in the presence of' suggests the need for physical proximity of the person committing the indecent act and the complainant. In this case, so it was put, the relevant act was depicted in a photograph and did not take place in the presence of the complainant. However during oral argument counsel counsel eschewed the contention that showing a child an image that was indecent could never constitute the offence charged.

Were the acts committed 'with or in the presence of a child'?

14 Section 47 creates a single offence of wide ambit dealing with indecent acts involving children under the age of 16. To commit the act 'with' the complainant contemplates participating conduct or concert by the complainant[1] - the word 'with', when juxtaposed with the phrase 'in the presence of' implying actual physical contact with the victim.[2] But the section does not require the child to be a willing participant or to even to be aware that the act has occurred.[3] The offence may be constituted by an act not involving physical contact.[4] It does not require that there be a touching or other act of indecency on the person of the complainant;[5] the offence may also be committed where the act of indecency occurs in front of the child.[6]

15 Hence in R v Alexander and McKenzie,[7] the use of indecent language over a telephone to the complainant could not constitute an offence under s 47 of the Act, because the act was committed neither 'with' nor 'in the presence of' the complainant. In R v Coffey,[8] the appellant had fondled his own penis as the victim performed a strip dance down to his underwear. The appellant had not committed an indecent act 'with' the complainant, but had committed an indecent act 'in the presence of' the complainant. Callaway JA explained that s 47 was a single offence encompassing both types of act, the distinction between an indecent act involving actual physical contact and an indecent act otherwise within the purview of s 47 being arbitrary.[9]

16 In Tasmania v Baker,[10] the applicant emailed two sexually explicit images to the complainant. Crawford J found that 'the action of a person in providing sexual images or pornographic pictures for another to view can amount to an indecent act'.[11] However, in that case the applicant was charged under s 125B(1) of the Criminal Code, which provided that a person 'who does any indecent act with, or directed at, another person who is under the age of 17 years is guilty of a crime'. Unlike s 47, there was no requirement under s 125B(1) that the act be committed in the presence of the complainant.

17 In R v Savage,[12] the appellant was convicted of multiple charges under s 47 for sending images of his penis to each of the complainants via computer. The appellant and the complainant had no physical contact. The Court of Appeal, citing Alexander and McKenzie and Coffey, quashed the convictions on the grounds that the terms of s 47 did not encompass the act of sending sexual images via telephone.[13] Mandie JA (with whom Redlich and Bongiorno JJA agreed) noted that there was no reason to conclude that Baker had been decided incorrectly 'given the precise language of the provision'.[14] The Court did not stay to consider whether the act itself - the sending of indecent images via a mobile telephone - was an indecent act.

18 The circumstances of this case are plainly distinguishable from the facts of Savage. In this case, the images were not sent electronically to the victim. The applicant was in the presence of the victim on each occasion the victim was shown the image.

Was the showing of a picture an indecent act?

19 In his written case the applicant also contended that the indecent acts constituting the offences were the physical acts depicted in the images and so were not committed with or in the presence of the victim. This argument was rightly abandoned during oral argument. Counsel for the applicant, correctly in my view, conceded that the alleged indecent act in each of the charges was the showing of the images to the complainant.

20 The applicant in oral argument then submitted that none of the three subject acts were indecent because none were done for the purpose of obtaining sexual gratification. He referred to Sabet v The Queen,[15] a case concerning indecent assault contrary to s 39, where Lasry AJA , with whom Ashley and Harper JJA agreed, said:

In R v Harkin, Lee J considered the nature of the circumstances that are necessary to render an assault indecent and noted a specific requirement that the assault be accompanied by sexual connotations. His Honour said:

It is, in my view, clear that if there be an indecent assault, it is necessary that the assault have a sexual connotation. The sexual connotation may derive directly from the area of the body of the girl to which the assault is directed or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury.

(...)

In the unreported judgment of R v RL, Nettle JA approved the decision in R v Harkin, noting that:

Even where an assault is not such as unequivocally to offer a sexual connotation, it may still constitute an indecent assault if accompanied by an intention on the part of the assailant thereby to obtain sexual gratification.

(...) authorities including R v Harkin, set out above, clearly support a requirement that the assault be directly accompanied either by a sexual connotation, with the assault itself of a sexual nature or associated touching of the complainant being of a sexual nature, or by a specific intention to obtain sexual gratification.[16]

21 The applicant further pointed to Curtis v The Queen,[17] a case where sexual gratification was considered relevant to an offence under s 47. The Court (Maxwell P, Weinberg and Harper JJA) said:

One further point was argued. It was said that there could be no act of indecency 'in two teenagers of essentially the same age kissing each other'. Alternatively, it was said, there was no act of indecency here because the jury had accepted that the applicant believed both girls to be 16 or over.

We disagree. The indecency resides not in the act of kissing but in the instigation of the act by a 24 year old man for his own sexual gratification. The question of indecency was for the jury to decide. In the circumstances, it was well open to the jury to be satisfied that the applicant's conduct in this respect was of a kind which 'right minded persons would consider to be contrary to community standards of decency'. It is hardly surprising that defence counsel did not contest this point before the jury.[18]

22 It may be assumed that what amounts to 'circumstances of indecency' that have been considered in cases concerned with an indecent assault (s 39) may throw light on when an act with or in the presence of a child (s 47) may be considered indecent. The act must be 'indecent', as unbecoming or offensive to common proprietary, an affront to modesty or offending the ordinary modesty of the average person.[19] The act is often described as an act 'which right-minded persons would consider to be contrary to community standards of decency'.[20] The test of indecency necessarily carries a broad and uncertain ambit because, as Callaway JA said in Coffey, 'distinctions are inappropriate, particularly as indecent acts are as various as the human imagination can make them'.[21]

23 The purpose of sexual gratification is not an element of the offence though it will frequently be a feature of offences requiring an indecent act. The act will be committed in circumstances of indecency when viewed objectively it has by its very nature a sexual connotation which offends against community standards. Even where no objective sexual connotation arises from the act, if the offender's purpose was sexual gratification, his intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.

24 When the act complained of concerns images or language, the question of indecency becomes one of context and degree and is a question of fact for the jury. Here, the prosecution case was one of a 55 year-old man showing a 13 year-old girl sexually explicit images as part of a course of conduct that involved manipulation, grooming and sexual activity.

25 The applicant made a further submission in respect of charge 6. According to the evidence of the complainant's mother, this image depicted her with her arm covering her breasts with the vibrator in the background. The applicant contended that as she was not indecently exposed or doing anything indecent with the vibrator, the picture was not indecent. Whether or not she was indecently exposed, she was in a sexually provocative position with a sexual aid behind her on the bed.

26 The image the subject of charge 5 was an image of the applicant's penis. After showing her the image, the applicant then exposed his penis to the complainant. The images the subject of charge 7 were of an explicitly pornographic nature. Each of the images viewed objectively had a clear sexual connotation. Showing a young girl these images was an act that a right-minded person would find contrary to community standards of decency. In this context, showing the complainant these sexual images was an indecent act. This was not a case where recourse to the intent of the offender was necessary to establish that the acts were indecent. That said, it was an inescapable inference from the facts which the jury must have accepted that the applicant's motive was sexual gratification.

28 The applicant submits that the verdict on charge 3 was unsafe and unsatisfactory in that there was insufficient evidence to show that an act of sexual penetration actually occurred as part of the 'Stud Park incident'.

29 A VATE was conducted with the complainant on 29 April 2009. The police told the complainant to make notes in anticipation of the recorded interview. Before the interview, the complainant and her mother made notes, with the complainant dictating to her mother. The notes did not contain any reference to digital penetration occurring as part of the Stud Park incident, but did make general allegations that the applicant had digitally penetrated the complainant. The applicant contended that evidence concerning the digital penetration at Stud Park was elicited as a result of leading questions being put to the complainant during her police interview.

30 The 'leading questions' occurred during the following discussion in the VATE about the Stud Park incident:

Q: So on this time, he's licked your vagina?

A: Yeah

Q: He's put his finger ---?

A: Yeah

Q: In the hole. So what other conversation did you have with him?

31 The applicant did not seek to have the evidence in the VATE excluded but did submit that the trial judge should direct the jury as to the leading nature of the questions. The trial judge said in her charge:

Now, your interpretation of this is a matter for you. So I don't seek to make undue comment about it but I do say this to you that when the questioner said, 'We just need to speak about each specific time.' And then said, 'So on this time he's licked your vagina.' And there was an answer, 'Yes.' That is a leading question suggesting the answer which as a matter of fact I would not permit if a barrister sought to do it in leading evidence-in-chief before me.

Similarly, the question 'He's put his finger in the hole.' which it seems to get the answer, 'Yeah.' at about the same time as it is asked, is a leading question, suggesting the answer. Now, it then thereby becomes a matter of what weight you give to the level of particularity about which he is speaking or attaching it to this particular occasion.

32 If anything, this was an unduly favourable direction. Read out of context, it may appear that the police officer was prompting the complainant to give these answers. But if one refers to an earlier exchange in the VATE, it is clear that the police officer in the passage above was merely seeking to clarify what the complainant was trying to say:

Q: What happened next?

A: He just - what's it called? - like, licked me and used his tongue and just kind of, like, went up and down and stuff like that and normally when he licks me, he also fingers me as well.

Q: We'll just talk about this occasion, this time.

A: Mm.

Q: So when you say he's licked you and he's used his tongue ---?

A: Yeah.

Q: Where exactly has he licked you?

A: On my vagina. Like, up probably near the top, like, where the flaps kind of start and then he - with his finger, he just puts it in the hole.

33 The objections that may be made to leading questions in evidence in chief should be applied with some caution in the context of a VATE investigation, which occurs in a markedly different environment. As in the present case the investigator was seeking to elicit and amplify a potential young victim's account. It is true that the questions set out above had a leading quality but the earlier passage from the VATE shows that the complainant voluntarily made the allegation of digital penetration.

34 Although the applicant in his written submission contended that the manner in which the evidence was obtained in the police interview created an unfairness that should have been dealt with in the judge's charge, this submission was not pursued in oral argument. It was implicitly accepted by counsel on the appeal that any risk of unfairness was addressed in her Honour's charge.

35 The absence of any reference to digital penetration in her pre-interview notes should not be viewed as a matter of particular significance. It is not to be assumed that a young complainant will provide a comprehensive account of their allegations when making notes prior to being questioned by the police. The complainant and her mother gave consistent accounts regarding the formation of the notes. The complainant and her mother went to the police two days prior to the VATE. The police advised the complainant to make notes in anticipation of the interview, but she was incapable of writing anything down. Half an hour before the interview, she tried again, with her mother acting as scribe. When one looks at the notes, it is clear that they were written in haste. Parts were written by DH, other parts by the complainant. The notes are far from an exhaustive attempt to catalogue the complainant's allegations as to the offending conduct.

36 The complainant explained the absence of a reference to digital penetration during cross-examination. She reaffirmed that digital penetration had taken place during the Stud Park incident when asked by counsel why she did not refer to the act of digital penetration in her notes:

DEFENCE COUNSEL: So there's no mention there, in that excerpt that I've just read to you, of him putting a finger in your vagina, is there?

COMPLAINANT: No.

DEFENCE COUNSEL: And presumably if he'd put a finger in your vagina on that occasion you would have said so?

COMPLAINANT: Yes.

DEFENCE COUNSEL: So the fact that you didn't mention the finger in the vagina on that occasion does that mean that he didn't put a finger in your vagina on that occasion?

COMPLAINANT: No, he did, it's just - I didn't write it down because to me when - (indistinct) when he was licking my vagina and fingering me at the same time it just seemed, you know, one kind of thing, I didn't know I had to explain in detail of, you know, everything.

...

DEFENCE COUNSEL: In other parts of these notes, you've described him putting his fingers in your vagina, but you didn't when you discussed Stud Park; that's right, isn't it?

COMPLAINANT: Yes but I - I was asked, when I made these notes, to just do dot points. I wasn't told to do description. I thought that was going to be explained when I had to talk about it.[22]

37 During oral argument counsel for the applicant conceded that if there was any deficiency in the VATE it was addressed during cross-examination of the complainant about the Stud Park incident.

39 The Crown's case relied entirely on the evidence given by the complainant. The applicant contends that the verdicts were unsafe and unsatisfactory as there were several features of the complainant's evidence that should have led the jury to reject the complainant's evidence.

40 First, in 2005 the complainant had told a classmate and her teacher that her father sexually abused her in 2001. She admitted that this allegation was a lie. DH gave evidence that the complainant told her she had made up this allegation as she did not want to visit her father in hospital. The respondent submitted that when she made this false allegation she was substituting her father for the applicant. The false allegation was made in 2005, at a time when she had already been sexually assaulted by the applicant.

41 The complainant also admitted that she had committed a number of dishonesty offences and had been caught stealing on numerous occasions. She and her friends would steal things from Stud Park Shopping Centre, including clothing, cosmetics and jewellery, and then reconvene outside the shopping centre to show each other what they had stolen.

42 The applicant relies upon the inconsistencies in the allegations made by the complainant, including the matters relating to the Stud Park incident canvassed above. The complainant first introduced an allegation of anal penetration as part of the Stud Park incident when giving evidence in the trial. She had not mentioned this in her pre-interview notes, the VATE or during the special hearing. The complainant alleged in her statement dated 14 January 2009 that the applicant had penetrated her anus with his finger at his home office. In evidence-in-chief, she said, 'I think it happened in the car at Stud Park as well'. This evidence was an aspect of the Stud Park incident that she had failed to mention previously.

43 She also claimed in her notes that the applicant had licked her on the vagina in her bedroom. She conceded during cross-examination that this act could not have occurred in her bedroom. As I have already discussed, the notes were a rough outline of the complainant's allegations, made in haste and told to her mother before the VATE. It is not surprising that the notes did not describe precisely the details of every instance of abuse. The reference in her notes to the applicant licking her vagina was inexplicable to her. She had not mentioned this particular incident during the VATE. Her evidence during the hearing was consistent with her account in the VATE on this matter.

44 The applicant submits that the evidence of the complainant's propensity for dishonesty, false allegations and the inconsistencies in her accounts of the abuse made her evidence unworthy of credit. The applicant submits that it was not open to the jury to find beyond reasonable doubt that the applicant was guilty.

45 That submission cannot be sustained. In my view, the inconsistencies in the complainant's accounts of abuse were not of a such a kind as to necessarily so damage her credibility. There is also nothing in the complainant's evidence of the Stud Park incident that gives me any reason to doubt her credibility. This was merely a fact she had not previously adverted to in her police statement, and indicates her evidence was honest and unscripted. This is in keeping with the entirety of her testimony, during which she made full and frank disclosures with respect to matters that were not to her credit such as her arrests for shoplifting and her false allegation against her father.

46 In addition, the applicant relies upon the fact that there was no corroborating evidence. He points to the absence of medical evidence to support the complainant's allegations that she had been persistently sexually penetrated. There is no force in that submission. The complainant was examined by a forensic physician on 12 May 2008, which was 6 weeks after the last incident of sexual intercourse with the applicant. The forensic physician's evidence was that there would be no expectation of seeing any physical signs of penetration 6 weeks later and there may have been no injury at this time.

47 The principles governing the way in which an appellate court should consider a ground that a verdict is unsatisfactory were summarised by Maxwell P in Klamo:[23]

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[24]

48 A guilty verdict will be 'reasonably open' to the jury if there was no aspect of the evidence which obliged the jury to come to a different conclusion. Hayne J (with whom Gleeson CJ and Heydon J agreed) said in Libke v The Queen that such a ground will be made out only if the jury 'must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.'[25]

49 Having undertaken an independent assessment of the evidence and having due regard to the jury's advantage in seeing the complainant give evidence, it has not been shown that the state of the evidence was such as to preclude a jury acting reasonably from reaching a state of satisfaction to the requisite standard as to the applicant's guilt. None of the issues raised by the applicant demonstrate an obstacle to the jury's acceptance of the complainant's account. It was open to the jury to find beyond reasonable doubt that the applicant was guilty on each of the charges on which he was convicted.[26]

50 I would not grant leave to appeal on this ground.

[1] R v Alexander and McKenzie [2002] VSCA 183; (2002) 6 VR 53, 78 [51].

[2] Ibid 78 [52] (Winneke P, with whom Charles and Vincent JJA agreed).

[3] See R v AWL (2003) SASC 416.

[4] R v TSR [2002] VSCA 87; (2002) 5 VR 627.

[6] R v Coffey [2003] VSCA 155; (2003) 6 VR 543.

[7] [2002] VSCA 183; (2002) 6 VR 53.

[8] [2003] VSCA 155; (2003) 6 VR 543.

[10] [2006] TASSC 74 ('Baker').

[12] (2010) 29 VR 229.

[15] [2011] VSCA 124.

[16] Ibid [13], [15], [17] (citations omitted).

[17] [2011] VSCA 102.

[19] Sabet v The Queen [2011] VSCA 124, [10].

[20] R v Manson & Stamenkovic (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, 17 February 1993), 2; Curtis v The Queen [2011] VSCA 102, [13].

[21] [2003] VSCA 155; (2003) 6 VR 543, 550.

[23] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4.

[24] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 450-2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] (the Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[25] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113].

[26] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.