Scannell v The Queen [2014] VSCA 330

CRIMINAL LAW - Sentence - Application for leave to appeal - Old sex offence - Buggery of child - Applicant, aged 88 years, sentenced to two years' imprisonment with non-parole period of 12 months - Whether sentence manifestly excessive - Whether sentence should have been suspended in whole or in part - Whether fixing non-parole period appropriate - Application granted and appeal allowed - Appellant resentenced to 15 months' imprisonment, 10 months suspended.

2 Over 40 years ago, when the complainant was aged 12 years, he was the victim of a sexual offence committed by the applicant, a priest, in the presbytery of a Catholic parish in a Melbourne suburb.

3 The complainant, 'JLF', who was born in July 1958, and is now aged 56 years, told nobody of the offending until about 10 years ago, when he told his wife that a priest had 'molested' him. Later, in October 2010, he told his sister of the applicant's abuse. A month afterward, on 10 November 2010, he made the first of three statements to police. Some 10 months following, on 14 September 2011, police interviewed the applicant, who denied any sexual impropriety with the complainant.

4 Another two years elapsed before the police charged the applicant. After a contested committal, the applicant was indicted on one charge of buggery. The trial commenced in the County Court on 23 June 2014. By today's standards it was a remarkably quick trial, the jury retiring to consider their verdict early in the morning of 26 June 2014. After approximately four days' deliberation, on 30 June 2014, by a majority the jury found the applicant guilty.

5 Following a plea, on 7 August 2014 the judge sentenced the applicant to be imprisoned for two years, and fixed a non-parole period of 12 months.

6 The applicant sought leave to appeal against conviction on two grounds, the first asserting that the verdict is unsafe and unsatisfactory, and the second contending that justice miscarried by virtue of the judge's failure to give the jury an 'unreliable witness' warning concerning JLF. For the reasons that follow, I would refuse leave to appeal against conviction.

7 Leave to appeal against sentence was also sought, on the ground that the sentence imposed is manifestly excessive 'because the sentence should have been wholly suspended'. I would, for reasons I will later set out, grant the application for leave, allow the appeal, and sentence the applicant to be imprisoned for 15 months, 10 months of such sentence being suspended for two years.

8 JLF attended a Catholic primary school in an eastern Melbourne suburb. He went to Mass at the local Catholic church with his aunty, who was a friend of the applicant, the parish priest. When he was in grades 3, 4 and 5, JLF would help out as an altar boy.

9 When JLF was about 11 or 12 years of age - 1969 or 1970 - his aunty asked him if he wanted to make some pocket money by helping out around the applicant's residence. As a result, he went to the applicant's residence a number of times on Saturday mornings to do odd jobs, such as weeding, sweeping and washing the car. On the third or fourth visit, the applicant spoke to JLF about wet dreams and erections, which made him uncomfortable. After these conversations, the applicant would hear JLF's confession.

10 On the last occasion JLF went to the applicant's residence, he walked into the lounge and the applicant was wearing a dressing gown. The applicant cuddled him and tried to kiss him, then took him by the hand into the bedroom. In the bedroom, the applicant removed JLF's clothes, and then took off his dressing gown, being naked underneath. The applicant helped the complainant onto the bed and came up behind him. I will discuss the evidence of what happened next in greater detail when dealing with the claim that the verdict is unsafe and unsatisfactory, but it is enough now to note that JLF felt the applicant's penis between his buttocks and against his anus. JLF felt pain. Later, JLF had a shower and washed between his legs, noticing the presence of sticky fluid. He was crying, and the applicant heard his confession. The complainant did not tell anyone what had happened, because he thought he would not be believed.

11 Some thirty years passed before JLF told anybody what had happened to him, until, about ten years ago, he told his wife he had been 'molested' by a priest. Later, in October 2010, he was to attend his aunt's funeral with his sister. When he learned that the applicant was going to conduct the service, JLF - who had travelled from Western Australia to do so - said that he would not attend. (Ultimately, the applicant was told he could not officiate, and he agreed neither to conduct, nor attend, the service.) JLF told his sister that the applicant was a 'child molester'. His sister asked JLF whether the applicant had molested him, and JLF replied that he had. A month later, JLF contacted the police.

12 When interviewed by police, the applicant denied the allegations of sexual interference of JLF. He did not give evidence at trial, but called witnesses to attest to his good character.

The suggested need for a warning concerning the unreliability of the complainant's evidence - ground 2

13 With respect to conviction, counsel for the applicant first argued the second ground of appeal. Relying on s 165 of the Evidence Act 2008, counsel submitted that the judge should have given an 'unreliable witness warning' with respect to JLF. The following circumstances should have, counsel contended, prompted such a warning:

• first, JLF had made no complaint near the time of the offence, or for most of his adult life;

• secondly, when JLF did make a complaint to his wife he provided no details of the alleged offending, and, importantly, did not implicate the applicant;

• thirdly, when he finally made a complaint to his sister, it was in response to a leading question;

• fourthly, the complainant's evidence as to whether there was actual penetration of his anus was uncertain;

• fifthly, JLF's evidence as to the date of the alleged offence was inconsistent with established facts (such as the dates of his nephew's christening and his sister's wedding, and his level of schooling);

• sixthly, there was a delay of 44 years between the alleged offending and the complainant's evidence;

• seventhly, JLF was uncertain on some matters (including, for example, what he was wearing at the time of the alleged offence); and

• eighthly, the complainant's description of the offence was, so it was submitted, accompanied by some 'unusual features' (such as, for example, his relative lack of protest, and permitting the applicant to position him on the bed).

14 Section 165 of the Evidence Act 2008 'applies to evidence of a kind that may be unreliable'. Sub section (1) spells out certain categories of evidence that are included, such as hearsay and admissions; identification evidence; evidence of accomplices (and the like); evidence of prison informers; and unsigned or unacknowledged records of interview (and similar). Counsel for the applicant placed specific reliance on the kind of evidence referred to in s 165(1)(c) - 'evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like' - and, in particular, submitted that the complainant's evidence might have been affected by his 'age' at the time of the crucial events.[1] But counsel made clear that he relied upon a combination of the factors set out above, rather than any single factor, to found the contention that a warning concerning JLF's evidence was required.

15 The categories of evidence that are set out in s 165 broadly reflect the types of evidence that attract a warning at common law. Section 165 recognises that evidence falling within the categories spelled out may be unreliable, so that, should a warning be sought, the section imposes an obligation on a judge to give the jury a warning with respect to such evidence[2] (unless there are good reasons for not doing so).[3] But evidence might be unreliable for a reason other than it fits within one of the categories in s 165.[4] Thus, quite apart from the broad categories referred to in s 165 and complementary provisions,[5] it would seem that the common law continues to apply, at least with respect to potentially unreliable evidence not falling specifically within the ambit of the Act (or other legislation[6]).[7] Generally speaking, whether the common law requires a comment or warning, and, if so, the content of such comment or warning, will depend on all of the circumstances; and in particular, whether the jury, from its own knowledge and experience, will be capable of fully evaluating or appreciating the subject-matter said to call for the comment or warning. As was said in Miletic:[8]

In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf. Bromley v R [1986] HCA 49; (1986) 161 CLR 315 at 324-5 and Carr v R [1988] HCA 47; (1988) 165 CLR 314 at 330. Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.

16 I will deal specifically with the fourth of the matters relied upon - that the complainant's evidence as to whether there was actual penetration of his anus was uncertain - when dealing with the next ground of appeal. With that in mind, it seems to me that any jury with a modicum of intelligence and experience of life would be capable of assessing each of the matters relied upon as necessitating a warning - whether alone or in concatenation another or others - without a specific direction, warning or comment carrying judicial imprimatur.

17 Moreover, it should be noted that the first, second and sixth of the circumstances relied upon as necessitating a warning are all related to delay. The trial judge gave specific directions about the 'significant consequences of this delay', including the impact of the delay on the applicant's ability to defend himself. No exception to these directions was forthcoming.

18 The submission that the circumstances relied upon should have attracted a warning concerning the reliability of JLF cannot be sustained.

The contention that the verdict is unsafe and unsatisfactory

20 The indictment recited that the applicant 'between the 1st day of August 1970 and the 8th day of July 1972 committed the abominable crime of buggery with [JLF]'. [9] Principally, the defence case was that there had been no episode of sexual activity between JLF and the applicant. A secondary aspect of some significance, however, was whether it was open to the jury to be satisfied that penetration of the complainant's anus by the applicant's penis had occurred. I turn first to that aspect.

21 It is clear that, absent evidence from JLF that his anus had been penetrated by the applicant's penis, the applicant was not liable to be convicted of buggery.

22 Buggery was a crime in Victoria from first settlement until 1 March 1981.[10] So far as relevant, s 68 of the Crimes Act 1958 provided:

1. (1) Whosoever commits the abominable crime of buggery either with any person under the age of fourteen years or with or upon any person with violence and without the consent of such person shall be guilty of felony and upon conviction thereof shall be liable to imprisonment for a term of not more than twenty years.

...

(3) Whosoever attempts to commit either with mankind or with any animal the abominable crime of buggery, or is guilty of any assault with intent to commit the same, shall be guilty of misdemeanour, and shall be liable to imprisonment for a term not more than ten years.

...

23 The elements of buggery were described by the Full Court (Lowe, Gavan Duffy and Martin JJ) in Wardle.[11] The Court observed:[12]

The crime of buggery is not defined in the Crimes Act, the Legislature being content to say ... 'Whosoever commits the abominable crime of buggery', and so on, and then to provide the penalty. It is, therefore, necessary for us to consider what is involved in the crime of buggery.

In our view it is sufficient at the present day to say that the crime of buggery exists when the prisoner by an intentional (or voluntary) act penetrates the anus of his victim with his penis and where those elements are proved the crime is established.

24 The applicant's counsel contended that it was not open to the jury to be satisfied from the complainant's evidence that penetration of his anus was established. It is thus necessary to set out the key pieces of JLF's evidence.

25 In evidence-in-chief, JLF described the critical incident as follows: [14]

... Um, he then turned me around and told me to kneel on the bed. I, um I did that. He sort of give me a hand on to the bed and, um, he, um, came up behind me. Um, I felt something press between my buttocks. Um, he sort of pushed forward and and something hit the back of - hit my anus. Um, I felt a little bit of discomfort and pain. I leant forward, I didn't didn't want to get hurt and, um, he kept sort of pulling me back backwards as he thrust forward and, um, after a while he it was he didn't say anything. There was no conversation. There was, um, some grunting noises, and he moved away and told me to get off the bed. ...

26 Had the matter rested there, doubtless the evidence would not have been sufficient to found an inference that penetration had occurred. The prosecutor returned to the matter, however, and elicited the following evidence:

All right. You then describe some pushing from behind. I'm going to ask you for a bit more detail about what occurs next?---Um, his - his penis sort of, um, was between my buttocks. Um um, it pushed against my anus. It it hurt. Um, I I leant forward. I didn't I didn't like the feeling of it. It scared me. I, um, I leant forward and and wouldn't let him push it any further.

When you say wouldn't let him push it any further, how far or can you describe to the court how far it went?---It started to penetrate but that's when I leant forward so it it started to hurt then I I leant forward and I wouldn't wouldn't let it go any further into me than than what happened.

Then after you leant forward, did [the applicant] do anything?---He he pulled me backwards but not not to the point where his penis pushed up against my anus again.

27 Still later in his evidence-in-chief, JLF gave further evidence about the crucial event:

You've given evidence that you were kneeling on the bed and you could feel [the applicant's] penis pressing towards your anus?---Yes.

Can you describe in a little more detail to the court where in relation to your body his penis went?---It was between my buttocks, um, up against my anus.

Sorry?---It was between my buttocks up against my anus.

I don't mean to be indelicate, but can you tell the court whether his penis went into your anus?---It it started to. Um, I don't it it went in enough to cause me pain, um, and then I pushed I leant forward to to stop it.

28 In JLF's cross-examination, the following passage appears:

[COUNSEL]: You felt something pushing between your buttocks, didn't you?---Yes.

This is on the account you give to the police, as you understand, and something trying to be pushed into your anus?---Yes.

You said to the ladies and gentlemen of the jury when you started to give evidence to my friend, you felt something between your buttocks. You were pushed forward and something hit the anus. You felt a little bit of discomfort and pain. Do you remember that?---Yes.

Then my friend went on further and asked you some more questions about that and you said his penis pushed between the buttocks, pushed against the anus, it hurt. 'I leant forward and didn't push any further, it started to penetrate.' Correct?---Yes.

...

So you've given those two descriptions of the event to us?---That was the same - - -

HIS HONOUR: There was another description that was given, [Counsel], that I have a note of.

[COUNSEL]: I'm sorry, Your Honour?

HIS HONOUR: There was another description given which I have a note of.

[COUNSEL]: Yes.

HIS HONOUR: 'I would not let I would not let it go any further into me.'

[COUNSEL]: Yes. I'm coming to that.

HIS HONOUR: Good.

[COUNSEL]: Is it possible, even on the account that you give, that something hit the anus but did not penetrate it. In other words, you had the discomfort of something passing between your buttocks but not entering into the anal passage?---Not without pain.

The first thing you say is a little bit of pain?---Yes.

Is it possible therefore that there was no actual penetration but that you felt discomfort at something by something, whatever it was, passing between your buttocks and hitting the anus without going any further?---I don't know.

I'm sorry?---I don't know. It's something caused me pain.

Yes, and you don't know whether it's the hitting of the anus or going further than that at this time looking back, do you?---No.

29 Finally, in re-examination, the complainant gave evidence as follows:

It was also suggested to you that there was no actual penetration by a penis and you said, 'There was something there that caused me pain'?---Yes.

What did you mean by that?---Something pushed against my anus, um, to cause enough pain. It it virtually started to to to enter my anus and and that's when I I leant forward.

30 In my view, despite the absence of clinical precision, the evidence was capable of satisfying the jury that the applicant's penis started to enter the complainant's anus, but that the complainant would not let it enter any further into him; and that it was when the applicant's penis started to enter the complainant's anal passage that he experienced pain.

31 In order to succeed on the ground which asserts that the verdict is unsafe and unsatisfactory, the applicant must demonstrate that it was not open to convict, in the sense that a properly instructed jury must have - rather than might have - experienced a reasonable doubt about guilt.[15] Having carried out my own independent assessment of the evidence concerning penetration (the critical portions of which I have set out), in my view the jury might well have experienced a reasonable doubt about penetration, but they were not compelled to. In my opinion, the evidence was sufficient to satisfy a jury to the criminal standard that there had been penetration - however slight - of the complainant's anus. Thus the contention that the verdict is unsafe and unsatisfactory because the jury were incapable of finding penetration, cannot be upheld.

32 It was submitted that the verdict was unsafe and unsatisfactory for other reasons. Thus, counsel submitted:

• first, delay had caused significant forensic disadvantage to the applicant; and in particular, JLF's mother and aunty - both of whom could have given evidence about important surrounding circumstances - were both deceased;

• secondly, JLF's evidence as to when the offending had occurred was changeable and thus unsatisfactory;

• thirdly - as already discussed - JLF's evidence concerning penetration was unsatisfactory;

• fourthly, JLF made no complaint for many years, and the complaint to his sister was drawn out by a leading question;

• fifthly, the circumstances of the offence were said to be unusual; and

• sixthly, the jury took four days to deliver a verdict, and then only after perseverance and majority verdict directions were given.

33 It cannot be said other than that there was significant delay in complaint. One might well ponder whether it is ever possible for a trial to be fair where it takes place after the effluxion of more than forty years from the time of the alleged offence. Nonetheless, the Legislature has - at least implicitly - said that a fair trial might still be had even where there has been great delay, and has given its mandate for the giving of prescribed jury directions so as to ameliorate some of the prejudice flowing from delay.[16]

34 The applicant claims that evidence has been lost concerning surrounding circumstances, including the death of two potential witnesses (JLF's mother and aunty). Unhappily, such loss of witnesses and evidence is a far from an unusual attendant of delay in the order of that in the present case. Most often, the prejudice flowing from the effects of long delay must be accepted, and, if appropriate, mitigated as much as is possible by adequate judicial directions of the kind prescribed by statute.[17] Occasionally, the effects of delay will be such that a fair trial is impossible and a permanent stay will be granted. In this case, in probable recognition of the fact that the effects of delay were no different than to many 'old' cases tried in the criminal courts, and that such effects were insufficient to found a permanent stay, counsel for the applicant at trial did not make such an application.

35 I see nothing in the effects flowing from the delay of over forty years that necessarily dictated that the verdict in this case ought be considered unsafe and unsatisfactory. The case turned very much on the truthfulness and reliability of the complainant. He was subjected to adequate cross-examination (including, as earlier discussed, as to penetration), and was confronted with various pieces of objective evidence which impinged upon the accuracy of his recollection. Further, even though the complaint to his sister was evoked by a leading question, that evidence can only have been of minor significance in the assessment of the complainant's evidence. Moreover, the judge gave directions of the kind permitted by statute.[18] The effects of the very long delay would not have dictated that the verdict - significantly based, as it must have been, upon JLF's evidence - must have been different.

36 It seems to me that there was nothing particularly unusual - as these cases go - in the circumstances of the alleged offence. The applicant's counsel submitted that it was unusual for the complainant (then a child) to be led uncomplaining to the applicant's bedroom, and there permitting himself to be disrobed and positioned on the bed, before being sexually interfered with by a naked priest. It is a sad fact, however, that the experience of the criminal courts is that such a state of affairs is not particularly unusual where a child is concerned, and there is a significant power imbalance between victim and perpetrator.

37 Finally, little can be concluded from the fact that the jury took four days to deliver a majority verdict. It is probably indicative of the fact that the jury approached their task carefully and conscientiously.

38 None of the factors relied upon in support of the contention that the verdict is unsafe and unsatisfactory persuade me that the jury must have acquitted.

40 The applicant was born on 7 April 1926, and is now aged 88 years. He has no other convictions, and, indeed, was able to rely on evidence attesting to his good character. Since a young man, he has made positive contributions to the wider community through teaching and his religious vocation, including ministering to the terminally ill and as Chaplain at Kew Cottages. To that extent, the present offence - committed over four decades ago - might be seen as an aberration.

41 Imprisonment will be extremely burdensome for the applicant. He is a frail, elderly man, who has suffered from hypertension; ischaemic heart disease requiring surgery; previous bowel cancer; and osteoarthritis. He is fitted with a pacemaker, and his cardiologist has offered the opinion that incarceration will increase his risk of stroke or heart attack. Psychological opinion indicates that the applicant has suffered severe anxiety and depression, and suggests that the likelihood of further psychological deterioration will be exacerbated by imprisonment.

42 The offending was no doubt serious, and, if committed more recently, would have justified a significant term of imprisonment. Denunciation of such conduct is important. Moreover, the offending is not mitigated by a plea of guilty or remorse; and it has had a significant adverse effect on the complainant.

43 In the particular circumstances of this case, however, I regard the need for general deterrence to be somewhat lessened, and any requirement for specific deterrence to be non-existent. As I have observed, the applicant has lived a blameless life for many years since the commission of the offence. His rehabilitation should be viewed as advanced, and any need for supervised release wholly unnecessary.

44 In submitting that the sentence imposed on the applicant was manifestly excessive, his counsel did not attack the sentence of two years' imprisonment as such, but argued that the whole of it should have been suspended. That accorded with the way in which the plea before his Honour had been conducted, save that it was at least implicit in what was said that a partially suspended sentence would also have been appropriate. Not a word was said about the fixing of a non-parole period, or its duration.

45 That was hardly surprising given the highly unusual circumstances of this case. It is not often that a judge is required to sentence a frail, and sickly, 88 year old for an offence committed almost 45 years ago. Once his Honour came to the view that a sentence of two years or more imprisonment was necessary, he no doubt felt constrained by s 11(1) of the Sentencing Act 1991 to fix a non-parole period, and for reasons that were not explained, chose 12 months as that non-parole period.

46 Before this Court, it was submitted on behalf of the applicant that it was inappropriate that a non-parole period should have been fixed. It was submitted that there was no reason for the applicant to be subject to supervision on parole. It was further submitted that none of the objects underlying parole had any application whatever to his situation. He did not require the incentive of release on parole to ensure that he behaved himself while serving his sentence.[19] There was no risk whatsoever of his reoffending in this, or any other way. His rehabilitation was, in that sense, complete.[20] In other words, if a term of imprisonment was warranted, it should have been either a straight sentence, or a partly suspended sentence, which of course was then still available, and is still available to this Court.

47 Fairly, the respondent's counsel did not submit that there was any need for a period of parole. He could offer no explanation as to why his Honour, having been asked to impose a suspended sentence (which could have been suspended in part), had chosen instead a sentencing disposition that entailed a wholly inappropriate component, so far as this applicant was concerned. A sentence may be excessive, or otherwise erroneous, because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is

manifestly too long.[21] I am persuaded that the wrong type of sentence was imposed at first instance. Accepting that a sentence of two years' imprisonment was within range for this kind of offending, there should, in the unusual circumstances of this case, have been no portion of that sentence that was to be served on parole. This error is, in my view, sufficient to vitiate the judge's exercise of discretion, so that this Court must sentence afresh.

48 For these reasons, I would grant the application for leave to appeal against sentence and allow the appeal. I would sentence the appellant to be imprisoned for a period of 15 months, 10 months of which I would suspend for a period of two years. An appropriate declaration of pre-sentence detention should be made.

49 I have had the considerable benefit of reading in draft the reasons of Priest JA. I respectfully agree that for the reasons his Honour describes, leave to appeal against conviction should be refused. I also agree that in the case of the appeal against sentence, leave should be granted and the applicant re-sentenced in the manner his Honour proposes.

[1] See Evidence Act 2008, s 165(6) and s 165A.

[2] Evidence Act 2008, s 165(2).

[3] Evidence Act 2008, s 165(3).

[4] In DPP v Faure [1993] VicRp 87; [1993] 2 VR 497, 503, the Court (Hampel J, Smith and J D Phillips agreeing) identified a range of factors which, in combination, should have attracted a warning concerning the evidence of the principal prosecution witness.

[5] For example, s 165A deals with warnings with respect to the evidence of children; and s 165B deals with delay in prosecution. See also Crimes Act 1958, s 61.

[6] By way of example, s 61 of the Crimes Act 1958 covers much of the same ground as s 165B of the Act. See Greensill v The Queen (2012) 37 VR 257, 226-7 [82]-[83] (Redlich, Osborn and Priest JJA).

[7] See also Jury Directions Act 2013, s 15.

[8] R v Miletic [1997] 1 VR 593, 606 (Winneke P, Charles and Callaway JJA).

[9] The description of the offence as 'the abominable crime' may appear somewhat quaint to most in the present day. An interesting discussion of the attitudes underpinning this nomenclature is to be found in Robert Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787-1868, 264-72.

[10] It was abolished by the Crimes (Sexual Offences) Act 1981, No 9509/80.

[11] R v Wardle [1947] VicLawRp 57; [1947] VLR 389.

[14] Emphasis added to this and the succeeding passages.

[15] M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Heydon J); Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 226-7 [82]-[83] (Redlich, Osborn and Priest JJA).

[16] Crimes Act 1958, s 61; Evidence Act 2008, s 165B. See Greensill v The Queen (2012) 37 VR 257, 265-71 [38]-[53].

[19] R v Shrestha [1991] HCA 26; (1991) 173 CLR 48; Bugny v The Queen [1990] HCA 18; (1990) 169 CLR 525.

[20] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623; R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, 67-8.

[21] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J).