Court of Appeal (Vic)|2010-08-05|Before: NETTLE and REDLICH JJA and BEACH AJA

Scetrine v The Queen [2010] VSCA 194 (5 August 2010)

R v Scetrine (Unreported County Court of Victoria at Ballarat, Judge Crossley, 15 May 2008)

1 On 28 April 2008 the applicant was presented for trial in the County Court at Ballarat on 23 counts of committing an indecent act with a child under the age of 16 (Counts 1-4, 7, 10-22 and 25-9) and six counts of taking part in an act of sexual penetration with a child under the age of 16 (Counts 5-6, 8-9, and 23-24). The offences were alleged to have been committed between 26 August 2005 and 30 May 2006 at Wendouree. There were four child complainants (JN, BM, JB, and KB), all of whom participated in VATE recordings. When interviewed by police, the applicant denied the offences and told police that, because of his impotence, he was physically incapable of committing some of the acts alleged.

2 The trial began on 28 April 2008 and was brief. It consisted of opening addresses on 29 April 2008 and the playing of the VATE tapes and special hearing recordings of the evidence of each complainant for the remainder of that day and into 1 May 2008. There was also some viva voce evidence given by other witnesses on 1 May 2008. The jury were provided with transcripts of each of the VATE tapes and special hearing tapes and of the other evidence. The applicant did not adduce evidence.

3 At the outset of 2 May 2008, the jury returned a directed verdict of acquittal on Count 11 and then heard final addresses from the prosecutor and defence counsel. After that, the trial was adjourned until Tuesday 6 May 2008.

4 At the outset of 6 May 2008, the jury entered a directed verdict of acquittal on Count 25 and the judge then charged the jury until 12.33pm, including a redirection as to the relevance of some of the evidence. At that point, the jury retired to consider their verdict.

5 At 1.08pm the jury returned to Court and asked to be provided with copies of counsel's addresses. The judge told them that the addresses had not been transcribed.[1] Thereafter, they continued to deliberate for the remainder of that day.

6 On 7 May 2008 the jury returned to Court again, in order to have one of the tapes replayed to them at their request.[2] Then they resumed their deliberations for the remainder of 7 May 2008 and continued to deliberate on 8 May 2008.

7 At 2.03 pm on 8 May 2008 the jury returned a verdict of guilty on Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 26, 28 and 29 and of not guilty on Counts 17, 18 and 27.

8 Following a plea in mitigation of penalty, on 15 May 2008 the judge sentenced the applicant to a total effective sentence of six years' imprisonment with a non-parole period of four years.

9 The applicant now applies for leave to appeal against conviction. His appeal against sentence was abandoned.

Ground 1 - Juror's knowledge of one of the complainants

10 On 28 April 2008, after opening addresses but before any evidence was adduced, the judge was notified that one of the jurors believed that he may know the identity of one of the complainants. The judge thus consulted counsel in the absence of the jury and suggested that he should say to the jury that it was a matter of whether the juror's knowledge of the complainant could be seen to affect the juror's judgement. As the judge said, if the juror literally did not know the complainant but simply knew his identity, it may be that the juror had no feelings which would render it improper for the juror to continue to sit on the case. On that basis, the judge proposed to leave it to the juror concerned to make a decision whether he should take the matter further. Both counsel agreed with that course.

11 The judge then had the jury return to Court and explained the relevant considerations, as he had said to counsel he would. His Honour's explanation to the jury included this:

So it really comes down to a consideration by the person concerned as to whether or not they think that there is even the slightest possibility of there being some sort of difficulty with making judgments in a case such as this or whether, in their opinion, their relationship was such as to lead someone else who knows of that relationship to think that it would have an effect.

12 The judge next asked the jury to retire to consider their position, which they did for some time, and then returned to Court. That was followed by this exchange between the judge and the juror concerned:

His Honour: Yes, so you are the gentleman concerned, are you?

Juror: Yes.

His Honour: Yes.

Juror: It dawned on me over a period of time.

His Honour: Don't apologise for that. I can understand how it happened. It would [not] have been obvious what I was getting at, at the beginning. I accept unreservedly that you had no realisation of this until later and I accept it on that basis and I thank you for raising it, whatever the result.

Juror: I'm still - I'm 90 per cent sure that I am vaguely acquainted with one of the (indistinct).

His Honour: Yes.

Juror: I don't think it will affect me at all. I can still look at the case in the same way as if I didn't know him at all.

His Honour: Yes.

Juror: It's just we're a member of the same club I believe and I've seen him (indistinct) various occasions around the club.

His Honour: Where you say a club it's a - - -

Juror: It's a golf club.

His Honour: A golf club, yes, I see.

Juror: And I do sometimes work in the pro shop golf club, he occasionally comes in and I say hello and he says hello and that's about it.

His Honour: That's a bit like the man in the paper shop.

Juror: That's about as much as we know each other, yes.

His Honour: Really it comes down to this, what are your feelings; are you perfectly happy and believe that you could be fully impartial in the proceedings?

Juror: I do.

His Honour: I thanked you once, I thank you again for raising it, and unless counsel wants to address me I think the matter will proceed, thank you.

13 Both the prosecutor and defence counsel agreed that the matter should so proceed. But counsel who now appears for the applicant contends that the judge should have discharged the jury, or at least the particular juror, and that his Honour's failure to do so resulted in a miscarriage of justice which requires that the convictions be set aside.

14 We reject that contention. The test is whether a fair-minded and informed member of the public would take the view that, because of the juror's knowledge of the complainant's identity, the juror might not discharge his task fairly and impartially.[3] Given the juror's very limited degree of acquaintance with the complainant, and his expressed disinterest in the outcome of the case, we see no reason to suppose that a fair minded informed member of the public would have any doubt that the juror would fairly and impartially discharge his duty as judge of the facts.

Ground 2 - Judge's failure to summarise the evidence and the submissions of Counsel

15 As has been noticed, the evidence and counsel's addresses concluded on 2 May 2008 and it was not until four days later, on 6 May 2008, that the judge charged the jury. Counsel for the applicant contends that, in those circumstances, it was incumbent on the judge to give the jury a detailed summary of the evidence and of counsel's arguments; whereas in fact his Honour touched only briefly on the evidence and counsel's arguments. In counsel's submission, the judge's charge was in that respect so inadequate as to be productive of a substantial miscarriage of justice.

16 We accept counsel's contention up to a point. This Court has reminded trial judges repeatedly of their common law obligations to relate the evidence to the issues, to summarise the salient aspects of an accused's record of interview and to summarise counsel's arguments.[4] The Court has also emphasised, repeatedly, that the requirement to do so applies generally. As Ormiston JA observed in R v D'Zilva,[5] the fact that a trial is of but short duration or that the issues may appear to be straightforward is not an excuse for a judge to fail to comply with those requirements :

One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial...

In this case, the judge failed to do what was required of him. His Honour's treatment of the evidence and of counsel's arguments was seriously deficient.

17 In the particular circumstances of this case, however, we do not accept that the judge's failure to do what was required of him could have affected the verdict. For, in the particular circumstances of this case, we do not consider that the jury would have been left in any doubt as to the issues or the evidence which related to them.

18 The process began with the prosecutor's final address to the jury, in which he identified the facts alleged to constitute each offence and then delineated the evidence of those facts by reference to the relevant pages of the transcript of the evidence. So, for example, in relation to the allegation comprised in Count 1, which was that between 26 August 2005 and 30 May 2006 the applicant wilfully committed an indecent act in the presence of JN, a child under the age of 16 to whom he was not married, the prosecutor told the jury in his final address that:

Count 1 relates to [JN] and it relates to an occasion when he and [BM] were in the computer room and the accused exposed himself and masturbated and ejaculated.

Now for your assistance when you're looking for evidence of particular counts and when you're using the transcript as an aide to your memories, you might pay particular regard in relation to Count 1 of the Special hearing tape concerning [JN] at p. 70...

19 At page 70 of the transcript of the Special Hearing, there was this:

Just talking about the ones [occasions] in the computer room, who was there on the two occasions that that happened in the computer room? - - - [BM].

And who else? - - - [BM] and I don't know, I don't think it was there.

All right, but you were there? - - - Yes, I was, yes.

And Bill was there? - - - Yes.

What were you doing in the computer room when you saw, on the first occasion, when you saw sperm come out of Bill's penis? - - - On the first occasion would - would have been in the computer room.

Yes? - - - Yes.

What were you doing? - - - Yes, we were playing games and stuff like that and then, yes.

What was it that Bill was doing that caused the sperm to come out of his penis? - - - Yes, he was wanking and - yes.

Could you clearly see that? - - - Yes.

When you say 'wanking' can you demonstrate with your hand what sort of movement he was making? - - - Yes, it was going up and down.

So you're holding - perhaps if you could [show] that a little bit higher up so that we can see on the camera? - - - There?

Yes? - - - Yes, it was up and down.

On his penis? - - - Yes.

On that first occasion that you saw that what happened to the sperm after it came out of Bill's penis? - - - He cleaned it up.

How did he clean it up? - - - With tissues and - yes, just - yes.

20 The jury had the transcript in front of them and, as the judge observed in discussion with counsel, took note of the page references identified by the prosecutor.

21 The prosecutor then went through a similar process in relation to each count, in each case precisely identifying the passages of the special hearing transcripts, VATE tape transcripts and transcripts of oral evidence to which the jury should have regard in deciding whether the facts alleged had been proved.

22 When the judge charged the jury, he also went through each count individually, identifying the facts alleged in relation to the count and in some cases made brief reference to the evidence. So, again taking Count 1 again as an example, the judge said this to the jury:

I now go to Count 1, that is an indecent act with or in the presence, or in my shorthand, indecent act with a child under 16, and that was the case when [JN] and [BM] were visiting the accused's home at ... for the purpose of using the computer and whilst they were there the accused is said to have exposed his penis and masturbated in their presence. The accused is said to have ejaculated and at the time the accused was viewing some pornography on his computer.[6]

23 We interpolate with respect to the emphasised passage that, in cross-examination during the Special Hearing, the complainant added that the applicant was looking at pornography on the computer while he masturbated himself to ejaculation:

Can you remember the first time anything was ever done to you by Bill? - - - The first time when I went there?

Yes? - - - Yes, as I was saying he was wanking on the computer.

Yes? - - - Yes, like and looking up porno and stuff while we played games and - - -

24 His Honour then went through a similar process in relation to each count seriatim.

25 The way in which the judge went about the task of relating the evidence to the issues left a great deal to be desired. The fact that the jury had in its possession a transcript of all of the relevant evidence did not relieve the trial judge of his obligation to give the jury oral directions in which he related the evidence to the law and to the facts in issue.[7] That said, this appears to us to be a rare case in which the jury were sufficiently appraised of the issues and of the evidence which they had to consider in relation to each issue. And we are strengthened in that view of the matter by the fact defence counsel did not take exception to the way in which that was done.[8]

26 The judge's treatment of counsel's arguments is equally troubling. Among the charge's other shortcomings, it made no reference to defence counsel's reference to the part of the applicant's record of interview where he said that he was physically incapable of ejaculating because he was impotent.[9] It is significant, too, that, although the jury asked for a transcript of counsel's addresses, and it could not be provided because it did not exist, the judge did not take the opportunity at that point to provide a more detailed summary of what counsel had said.

27 Once again, however, it is relevant to note that defence counsel did not take exception. There is also no suggestion, still less evidence, that defence counsel made a mistake about it or overlooked the point. That implies that defence counsel judged it to be in the applicant's best interests to leave the matter where it was.[10] One can also well understand why defence counsel would take that view of the matter, given that each of the complainants gave evidence that was in most respects uncontradicted and unimpeached and that the defence case was more or less limited to identifying a few relevantly inconsequential inconsistencies in the detail of some of the complainants' evidence and as between them. In those circumstances, it would hardly have aided the defence case to have the jury's attention directed once more to the detail of the evidence which the prosecutor had identified as relevant in the course of his closing address.[11]

Ground 3 - Pornographic images found on the applicant's computer

29 Under the heading of Ground 3, counsel for the applicant contended that the judge's failure to give the jury a Zoneff[12] warning or an Edwards[13] direction resulted in a miscarriage of justice.

30 The argument was based on the fact that, when the applicant was interviewed by police, he denied having any pornographic images on his computer and consented to police examining it to confirm that what he said about that was true. In fact, however, when police examined the computer, they found some pornographic images stored on it and evidence was given about that at trial. Then when the prosecutor addressed the jury he said this about it:

[I] want to say something about the accused man's record of interview. What he said to the Police is what he said but you might think when you listen to it again if you want to ... [that] [h]e had in his mind formulated what he was going to say if he ever had to answer for what he'd done to these boys. He had it all down pat ... Who's going to believe them? Hang on a minute I'm Bill Scetrine and I say this boy is troubled ... the point I am making is he was ready to counter any allegation that was levelled at him when he spoke to the Police and you might be tempted to think that he missed that one - the bloke who knows computers missed that one, because he knew, he didn't want any evidence around just in case. Well he denied it to the Police, he has made emphatic denials.

31 Counsel for the applicant submitted that, in view of the prosecutor's observation, the jury should have been warned that, if they concluded that the pornography was downloaded to the computer with the applicant's knowledge, and thus that he was lying in his record of interview when he told police that there was no pornography on his computer, they must not reason from the fact of the lie to a conclusion that the applicant was guilty of the offences charged.

32 We do not accept that submission. The point of the prosecutor's submission was not that the applicant lied to police about pornographic images being on his computer. Rather, to the contrary, the prosecutor's thesis appears to have been that the applicant had carefully planned for the eventuality of being called to account, and thus truly believed that he had removed all such images from his computer. It was only because he had missed the one found by police that police discovered it there when they searched.

33 Of course, the point of the prosecutor's thesis was to have the jury accept that the applicant's denials of offending were false and that his protestations as to the complainant being troubled and thus unreliable should be rejected. But as Gleeson CJ and Hayne J observed in Dhanhoa v The Queen:[14]

It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.[15] Zoneff was said to be an unusual case,[16] and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.

34 In this case, the Crown did not contend that there were any lies which were evidence of consciousness of guilt. Nor was there any real danger that the jury might apply such a process of reasoning. The Crown's case was simply that the evidence of the complainants should be accepted, and the applicant's denials rejected, for the reasons which the prosecutor advanced. In our view, that did not warrant a Zoneff warning, still less an Edwards direction.[17]

35 Counsel for the applicant also complained that, because the complainants gave evidence that the pornographic images which they had seen on the applicant's computer were movies or 'moving pictures', and the images found by police on the computer were still shots, it might be doubted that the images tendered were the images which the complainants had seen on the applicant's computer. The images tendered were also said to be more prejudicial than probative and should have been excluded in the exercise of discretion.

36 We do not accept either of those contentions. They were not made at trial. If these issues were to be pursued it would have been necessary to gain a clearer understanding of what the complainants meant by 'moving' and whether that was necessarily different to the images which the police discovered. As no notice was given of the intention to raise the argument that these images may not have been those that the applicant showed to the complainants, and since no inquiry of that kind was ever undertaken at the trial, as it might easily have been on voir dire if the point had been raised at trial, we would not now give the applicant the leave that was sought to pursue this argument. Moreover, we consider that any objection which might have been taken along those lines should now be seen as waived.[18] We take the evidence of images found by the police on the applicant's computer to have been tendered and received as evidence of the fact that the applicant had demonstrated such pornographic images to the complainants as they deposed he had. The probative value of evidence is not to be confused with prejudice, as Gleeson CJ explained in Festa.[19] According to the prosecution case, these images were used by the applicant to encourage a number of the complainants to participate in the conduct the subject of the relevant counts. They had significant probative value providing confirmation of part of the account given by them.

37 Counsel for the applicant argued further that, even so, there was a risk of the jury reasoning impermissibly from the fact that there were pornographic images on the applicant's computer that he was the kind of person who would have committed the offences charged and that the jury should have been directed that they were not so to reason.

38 It is significant that no request was made that such a direction be given. It is understandable that counsel did not wish the trial judge to draw any particular attention to these exhibits. But in any event, in our view, the contention that there was a need for such directions is misplaced. As counsel for the Crown submitted, the fact of the pornographic images being on the applicant's computer went to the circumstances of the offending alleged - it was proof of the actus reus of at least one of the offences, as opposed to propensity evidence - and there was no suggestion that it be used in any other fashion.

39 Additionally, even if a risk of the kind suggested might otherwise have arisen, the judge gave the jury a clear separate counts direction and also a detailed propensity direction, which included this:

... So be very careful how you use the evidence of other incidents involving other boys and other incidents that are not the subject of charges.

You must not ... use that evidence to decide that Mr Scetrine is the kind of person who is likely to have committed the offences charged and use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in this case, not on assumptions about the kinds of people that commit crimes. That has got relevance to what I said before about any prejudices you might have formed against Mr Scetrine.

40 In the circumstances, given the obvious relevance of the images to the complainants' account, we do not think that any further directions were required to address any risk of the jury reasoning impermissibly from the fact of the pornographic images on the applicant's computer to the conclusion that he was guilty of the offences with which he was charged.

Ground 4 - Lack of directions with respect to evidence of first complainant

41 During examination in chief, the informant was asked the following question by the prosecutor and, without objection, gave the following answer to it:

Is it your understanding that this matter came to police attention because of something [JN] had said at school and it was a mandatory reporting situation? - - - That's correct.

42 In the course of final address, when dealing with the suggestion which the applicant made to police when interviewed that the complainants had fabricated their allegations against him as part of an extortion attempt, the prosecutor said this:

...you know this all came out through mandatory reporting. Through something that [JN] has said to someone at school. It doesn't sound like much of an extortion attempt does it. [JN] and these boys didn't go to the Police. The Police went to them. It doesn't sound like much of a lie does it.

43 Then, when the judge summarised the prosecutor's argument, he said that one of the propositions which had been put by the prosecutor was that the jury had no reason to disbelieve the complainants:

You have no reason in the circumstances, he outline[d] why it came through compulsory reporting. The evidence was given by the boys, there is no reason to disbelieve them and you should accept them. There is evidence on all those counts that are left, and you should accept that, and essentially that was the summation of his argument. I am not playing it down.

He went through it in detail, and gave you a number of reasons why you should accept that evidence, but essentially that is the sum total of the argument he made, and it is for you to consider what he said about it, and I commend what he has said to you, and you will make a consideration whether or not you consider that evidence is to be accepted...

44 Defence counsel did not take exception to any of that. But counsel for the applicant now contends that the judge should have directed the jury that the complainant's report of the matter to the school which led to the police investigation was not evidence of the truth of the complaint, and that his Honour's failure to do so was productive of a substantial miscarriage of justice.

45 We think it is sufficient to say of that contention that, because the prosecutor properly took care not to disclose the terms of the complaint, there was no evidence of its contents and, therefore, nothing about which to warn that it was not evidence of truth.

Ground 5 - Standard of proof of uncharged acts

46 Some of the complainants gave evidence of uncharged acts similar to the alleged offences. That evidence was admitted under s 398A of the Evidence Act 1958 as evidence of the context in which the charged acts were committed.[20] The judge directed the jury that it was relevant to the nature of the relationship between the applicant and the complainants and so provided context to enable a better understanding of the circumstances in which the alleged offences were said to have been committed. Defence counsel did not take exception to that part of the judge's directions. But counsel for the applicant now contends that it was incumbent on the judge to direct the jury that they could not act on the evidence of uncharged acts unless satisfied of those acts beyond reasonable doubt, and that the judge's failure to do so constituted a miscarriage of justice which vitiated the applicant's conviction.

47 We do not accept the submission. Evidently, it is based on an observation by Weinberg JA in R v Osborne,[21] that:

It now seems clear that when a jury is directed as to the use that they can make of uncharged acts, they must be told that they should not act upon such evidence unless satisfied beyond reasonable doubt that those acts occurred.[22] That was not understood to be the law at the time of this trial. However, the High Court has now spoken. It must be accepted that his Honour's charge has turned out to be deficient in this regard.

48 With respect, however, it would be a mistake to take that observation literally or otherwise than in the context in which it was made. For, as was explained in Sadler, HML did not determine that it is necessary in every case of evidence of uncharged acts admitted under s 398A to direct a jury that they cannot act on that evidence unless satisfied of the uncharged acts beyond reasonable doubt. It is not required unless there is a real risk of the jury using the evidence of uncharged sexual acts as an important step in their process of reasoning to guilt, albeit, as was said in Sadler, as a matter of prudence:

Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.[23]

49 In this case, we are not persuaded that there was a risk of the jury using the evidence of uncharged sexual acts as an important step in their process of reasoning. Compared to the number of charged acts, the number of uncharged acts was small. In practical reality, therefore, the uncharged acts would not have added to the conclusion open on the evidence of the charged acts that the applicant had a sexual interest in the complainants. But even if there had been a significant risk of the jury treating the evidence of uncharged acts as an important step in their process of reasoning to guilt, the fact is that the judge did warn them, in effect, that it was necessary for them to be satisfied of those acts beyond reasonable doubt.

50 In his directions as to the way in which the evidence of uncharged acts could be employed, the judge told the jury that:

But it is very important that you only use that sort of evidence; that evidence about relationship between the accused man and each of the boys concerned, only for this purpose and only if you are satisfied that it is true and only if it helps to explain why the accused man acted and behaved as you find he did.

If you did not believe the evidence or if you do not think that it provides you with any assistance in that limited way, then you should disregard it ... So be very careful how you use the evidence of other incidents involving other boys and other incidents that are not the subject of charges.[24]

51 His Honour had previously told the jury several times that the standard of proof which applies in a criminal trial is proof beyond reasonable doubt, and that they could not convict the accused of an offence unless the Crown had proved 'to their satisfaction' beyond reasonable doubt that the applicant was guilty of that offence.

52 In those circumstances, the jury would surely have understood the later direction as to being satisfied that the evidence of uncharged acts was true as a direction that they had to be satisfied of the truth of the evidence of uncharged acts beyond reasonable doubt.

Ground 6 - Propensity direction with respect to charged acts

54 The contention advanced under the heading of Ground 6 was that, although the judge gave the jury a full propensity direction in relation to the evidence of uncharged acts, which included a prohibition on concluding from the evidence of uncharged acts that the applicant was the kind of person likely to have committed the offences charged, and reasoning from that to a conclusion of guilt of the offences charged, the judge failed to give a similar direction in relation to other charged acts and the failure to do so was productive of miscarriage of justice.

55 In R v DCC[25] Callaway JA essayed the several circumstances in which a trial judge must give a jury a propensity warning. He noted that one such case is where there are:

...multiple counts on the one presentment and more than one complainant and the evidence in relation to the complainants, or some of them, may be cross-admissible as similar fact evidence. In that case, too, a propensity warning is required...first, because the risk of prejudice is ordinarily at its highest in a similar fact case and, secondly, because, depending on the nature of the similar fact evidence, it may be necessary to explain to the jury the difference between probability reasoning, which is permitted, and propensity reasoning, which is not.[26]

56 Callaway JA was also of the view that the propensity direction should be in terms or to the effect that 'the jury is not to reason that the accused is the kind of person who is likely to have committed the other offences charged'.[27]

57 But as Callaway JA further observed in DCC,[28] it is not always necessary that a warning be given in the form which was sanctioned in that case. Although that form of warning is preferable and should ordinarily be used, there are some circumstances in which something less may suffice to bring home to the jury the importance of not reasoning from the fact that, because the accused is found to be guilty of one of the offences charged, he is the sort of person who is likely to have committed the other offences charged. It all depends on the facts of the case, the language employed and the context.

58 In our view, that was so in this case. The judge did not give the form of warning recommended in DCC. But his Honour did give the jury a separate counts direction as follows:

Now the Crown here brought 29 counts against the accused - counts are charges. There are 27 left for your determination. Those counts, 27 counts, are all on the one presentment, which is the name of the document which formally charges the accused man, and you have got a copy of that list of charges from the presentment, and you can look at that and it will remind you of what count or incident you are dealing with.

Now that means we are now running 27 trials in one because the accused as well as the Crown are entitled to a separate consideration of each count or charge separately considered in the light of the evidence appropriate to that charge. So there are, in fact, 28 [sic, 27] trials going on, they have all got to be separately considered, and your answer to one does not automatically help you with answering the next, or finding the verdict on the next. It would be quite wrong to say that simply because you find an accused person guilty of one count he must, as a result, be guilty of another.[29]

59 As was earlier noted, his Honour also gave the jury a detailed propensity direction in relation to uncharged acts, which included the imperative that:

But you must not reason that because Mr Scetrine has previously committed the other sexual acts, he must have done it on each of the occasions with which he is charged. Similarly, you must not use that evidence to decide that Mr Scetrine is the kind of person who is likely to have committed the offences charged and use this conclusion as evidence he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on assumptions about the kinds of people that committed crimes. That has got relevance to what I said to you before about any prejudices you might have formed against Mr Scetrine.

60 Although less precise, and less desirable, than the form of warning discussed in DCC, the combination of those two directions thus more or less accorded with the requirement in R v Beserick[30] that a judge must warn a jury that:

they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged.

61 They were similar, too, to the way in which the trial judge in R v Glennon (No 2)[31] approached the matter, which was held to be sufficient in the circumstances of that case to apprise the jury of the need to avoid propensity reasoning.[32]

62 In the result, taking the two aspects of the judge's warning in conjunction and in context, we consider that the jury would have understood them to mean that they had to determine guilt or innocence of each count on the basis of the evidence which related to that count, and they were not to reason from the fact that the applicant may be found to have been guilty of one count that he was the kind of person who was likely to have committed any other of the offences alleged against him.

63 We are strengthened in that conclusion, too, by the fact that defence counsel did not take exception to the direction which was given, or seek any further direction on the point. It implies that defence counsel was also of the view that the jury understood the need to avoid propensity reasoning.

65 Finally, under cover of Ground 7, counsel for the applicant argued that the verdict of guilty on Count 26 was inconsistent with the verdict of not guilty on Count 27, inasmuch as the complainant JB was the complainant in relation to both counts and the Crown relied on his evidence to establish both counts.

66 That argument is not persuasive either. The principles which govern an appeal on the ground of alleged inconsistency of verdicts were considered by the High Court in Mackenzie v The Queen[33] and more recently by this court in R v JA.[34] As was said in JA:

Where alleged factual inconsistency arises in relation to different jury verdicts on multiple counts, the test is one of logic and reasonableness. Appellate intervention is justified only if the verdicts cannot stand together, in the sense that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion.'

Due to the respect accorded to the jury's traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, 'it is not the role of the appellate court ... to substitute its opinion of the facts for one which was open to the jury.' If the outcome is explicable as a merciful verdict, intervention will not be justified.

It is otherwise if the difference in the verdicts is 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise' or confusion in the mind of the jury. In that context, '[i]t is impossible to state hard and fast rules. "It all depends upon the facts of the case".' Nevertheless, a conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice.

67 In this case, as was submitted on behalf of the Crown, there is a proper and convincing way to reconcile the verdicts on Counts 26 and 27. The facts which were alleged to comprise Count 26 were that, on an occasion when JN and JB went to the applicant's home together, JN pulled the applicant's pants down and 'played with his doodle'. The facts alleged to comprise Count 27 were that, on the same occasion, JN pulled his own pants down and the applicant played with JB's 'doodle'. JB gave evidence in chief at the special hearing to that effect, as follows:

When you say there was gay porn on there, what sort of sexual stuff are you saying there was on the screen? - - - Well, people playing with each other's penises.

How many people did you see on the screen? - - - Two.

Whereabouts were you standing in relation to the computer? - - - Near the door.

Do you recall whether [JN] or Bill were saying anything? - - - They told me to come and sit down, that's what I remember.

Did you see [JN] or Bill do anything to each other? - - - They were playing with each other's doodles. (Count 26)

How did that happen? - - - [JN] pulled Bill's pants down.

Sorry, [JN] pulled Bill's pants down? - - - Yes.

Did [JN] or Bill say anything at that time? - - - No.

What about [JN's] pants, what happened to them? Were they up or down or - - - ? - - - They went down as well.

Who pulled them down? - - - Him himself.

Himself? - - - Yes.

I think you said a minute ago that they were playing with each other's doodles, is that right? - - - Yes. (Count 27)

What did you do when you saw [JN] and Bill playing with each other's doodles? - - - I went outside.

Why was that? - - - Because it's rude.

68 In cross-examination, however, JB conceded that 'he didn't see Bill grab [JB's] penis':

You saw [JN] with his pants down and he took his own pants down, is that right? - - - Yes.

So in effect you can see [JN's] bottom, is that right? - - - Yes.

And it was then that you went outside? - - - Yes.

You didn't actually see [JN] grab Bill on the penis, did you? - - - Just a little bit.

He was between you and Bill, wasn't he? - - - Yes.

And Bill was facing him? - - - No, he turned to the side a bit.

Bill turned to the side, did he? - - - Yes, bit. And then I went.

And then you went but you didn't see Bill grab [JN's] penis did you? - - - No.

So as soon as [JN] has reached for - did you actually see him grab [the applicant's] penis? - - - Yes.

He actually touched it, do you say? - - - Yes.

69 JB did say again in re-examination that he had seen the applicant grab JN on the penis:

What I want to ask you is did you see [JN's] penis before you left? - - - Not really, no.

Did you see Bill do anything to [JN]? - - - No, besides grabbing him on the penis, yes.

70 But the apparent inconsistency between what JB said on the subject in examination in chief and what he said about it in cross-examination may well have been enough to raise in the mind of the jury a reasonable doubt as to whether JB did see the applicant touch JN's penis on that occasion.

71 Counsel for the applicant submitted that JB's evidence corroborated JN's testimony in respect of Count 26, on which the applicant was acquitted, but not on Count 27, on which he was convicted, and that added further uncertainty to the basis of the jury's decision to acquit on Count 26 but convict on Count 27.

72 We do not accept that submission. It is based on evidence given by JN during the course of his second VATE tape, that the applicant had touched him over his clothes when JB was present. That evidence, however, related to Count 10. The only relevant evidence which JN gave in relation to Counts 26 and 27 was that he had touched the applicant on quite a few times:

How many times do you say that this happened? Perhaps I should say this, how many times did you touch him? - - - I can't actually remember how many times, quite a few though.

74 It follows that the application for leave to appeal should be dismissed.

[2] It is not possible to work out from the transcript which tape it was.

[3] Webb v the Queen ([1994] HCA 30; 1994) 181 CLR 41, 53; R v ALH [2003] VSCA 129; (2003) 6 VR 276, 278 [8]; R v Goodall [2007] VSCA 63; (2007) 15 VR 673, 677 [25].

[4] In accordance with Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466. See, for example: R v Wiles & Briant [1965] VicRp 64; [1965] VR 475; R v Jellard [1970] VicRp 98; [1970] VR 802; R v Anderson [1996] VICSC 17; [1996] 2 VR 663, 666-8; R v Franks [1998] VSCA 100; [1999] 1 VR 518, 24-5; R v D'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 416-7; R v Dardovski [2003] VSCA 4; (2003) 6 VR 628, 688; R v Taylor [2004] VSCA 189; (2004) 10 VR 199, 205-5 [23]; R v Yusuf [2005] VSCA 69; (2005) 11 VR 492, 500 [15]; R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577 [55]; R v Gose [2009] VSCA 66, [52]-[55].

[7] R v Thompson [2008] VSCA 144; (2008) 21 VR 135, 166 [146].

[8] R v Clarke and Johnstone [1996] VR 643, 662; R v Anderson [1996] VICSC 17; [1996] 2 VR 663, 669.

[9] See and compare R v Thompson [2008] VSCA 144; (2008) 21 VR 135, 164 [140].

[10] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 134 [30] and 147 [74]-[76]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.

[11] See and compare R v Jansz [2010] VSCA 137, [42].

[15] Zoneff v The Queen (2000) 200 CLR 234, 244 [16]; R v Burge [1996] 1 Cr App R 163, 173.

[16] Zoneff v The Queen (2000) 200 CLR 234, 245 [23].

[17] Cf R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, 123 [15]-[17] and 127 [32]-[33].

[18] R v Radford (1993) 66 A Crim R 210, 232-3; R v Clark [2005] VSCA 294; (2005) 13 VR 75, 83 [61]-[64]; R v Durobin [2008] QSCA 118, [62]-[64]; Janz v R [2010] VSCA 137, [34].

[19] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 602-3 [22].

[20] R v Harriman [1989] HCA 50; (1989) 167 CLR 590, 631; R v Hopper [2005] VSCA 214, [79]-[88]; R v VN (2007) 15 VR 113, 123 [34].

[23] [2008] VSCA 198; (2008) 20 VR 69, 89 [65]; and see PPP v R [2010] VSCA 110, [23] (Redlich JA).

[32] See also R v Kerbatieh (2005) 155 A Crim R 367, [2005] VSCA 194, [104]-[108]; R v DD [2007] VSCA 317; (2007) 19 VR 143, 164 [80]-[85].

[34] [2008] VSCA 169, [47]-[49] (citations omitted); see also Goldsmith v R [2010] VSCA 99, [38]-[52].

Scetrine v The Queen [2010] VSCA 194

At a glance

Court

Decision date

Before

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Judgment (134 paragraphs)

Scetrine v The Queen [2010] VSCA 194 (5 August 2010)

Parties

Cases Cited (26)