A D A v Bruce
[2011] VSC 338
•27 July 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 6235 2010
| A D A | Plaintiff |
| and | |
| DETECTIVE SENIOR CONSTABLE DAVID BRUCE | First Defendant |
| and | |
| CHILDREN’S COURT OF VICTORIA AT MELBOURNE | Second Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2011 | |
DATE OF RULING: | 27 July 2011 | |
CASE MAY BE CITED AS: | A D A v Bruce & Anor | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 338 | |
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JUDICIAL REVIEW – Two sets of charges issued in the Children’s Court with respect to same factual circumstances – Magistrate’s decision dismissing pleas of autrefois convict and application to stay second set of charges as abuse of process – Proceeding adjourned to enable first set of charges to proceed according to law – Relevance of evidence of lack of consent to sentencing decision in respect of charges of sexual penetration of a child under 16 - Clarkson v R [2011] VSCA 157.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Carter | Robert Stary Lawyers |
| For the First Defendant | Mr T Gyorffy | Victorian Government Solicitor |
HIS HONOUR:
This proceeding constitutes an application for orders by way of judicial review in respect of decisions relating to two charges of rape against the plaintiff (‘the accused’) which were filed and served by the first defendant on 7 July 2010.
The second defendant has dismissed a plea in bar of autrefois convict and refused an application to permanently stay the rape charges as an abuse of process.
The background to the matter need not be set out in full detail. It is sufficient to record the following matters.
On 12 August 2009, the accused was charged with three charges of sexual penetration of a child under 16 which were alleged to have occurred on 29 April 2009. The complainant was 14 years of age and the accused was almost 17 years of age at the time of the alleged offences. The accused was bailed to appear before the Melbourne Children’s Court on 11 September 2009. After some intervening adjournments, the accused, on 3 March 2010, pleaded guilty before Magistrate J Bowles to the three charges before the Court. He also consented to the summary jurisdiction of the Court. A summary of facts was read to the Court. The prosecutor concluded the summary by stating that the accused says that he believed there was consent to the acts in issue, however, that was not accepted by the victim or the prosecution.
Counsel for the defence submitted that applying the principles of R v De Simoni,[1] the Court could not sentence on the basis of aggravating features which constituted evidence of the more serious offence of rape.
[1](1981) 147 CLR 383.
The Magistrate found the offences charged to have been proved. A victim impact statement and a medical report relating to the complainant were then tendered. An introductory plea was made on behalf of the accused. A psychological assessment was tendered by the defence. It was foreshadowed that the defence would submit that the accused should be sentenced to a Youth Supervision Order.
The Magistrate ordered that a pre-sentence report be provided to the Court by Youth Justice and that the accused undertake an assessment by MAPPS. The matter was then adjourned for the assessments to be undertaken and for a detailed plea to be conducted.
The hearing resumed on 27 May 2010. The Magistrate expressed concern that the reports she had received noted that the accused maintained that the sexual penetration he admitted was consensual. She indicated difficulty in resolving the basis on which she was to sentence. It was apparent that the accused’s position did not accord with what was put forward as fact in the agreed summary of facts. Some debate then followed as to the position of the defence and the prosecution. The matter was adjourned to 17 June 2010 for the purpose of further submissions in relation to the relevance of evidence of alleged violence and lack of consent to the sentencing task confronting the Magistrate.
On 17 June 2010, the prosecution advised that due to a miscommunication at the prosecutor’s office, the prosecution was unaware that further submissions were required. The Magistrate records in subsequent reasons what then occurred:
Mr Norton on behalf of the accused submitted that whilst violence can be an aggravating feature, in this case the violence was bound up with the issue of consent and could not be severed. The preparedness of the accused to accept the summary was on the basis that a number of attempts had been made to have the summary rewritten. The summary which had been read to the Court was the second summary which had been prepared. There was great sensitivity surrounding the desire to protect complainants from revisiting the incident and being required to give evidence. The accused admitted and had always admitted the elements of the sexual penetration charges.
The prosecutor, indicated that Leading Senior Constable Collins would now appear on behalf of the prosecution as he had had some prior involvement in the matter. L/S/C Collins submitted that the prosecution had charged sexual penetration of a child under 16 rather than rape after a lengthy process had been undertaken with the victim and her family. The prosecution submitted the violence was an aggravating feature and that it was not asking for the accused to be sentenced for rape. The matter was stood down in order for the prosecutor to consider making further submissions in light of the authorities to which Mr Norton had referred and that he would speak to the informant concerning the position of the complainant and in relation to possibly removing portions of the summary.
Upon resuming, the prosecutor indicated that there would be three charges of rape laid. Mr Norton submitted that the laying of such charges would contravene the principle of autrefois convict and would constitute an abuse of process. The matter was adjourned to 30 June 2010 for written submissions to be prepared. On 30 June 2010 the prosecution confirmed that it sought to proceed on charges of rape and correctly submitted that before there could be any submissions regarding autrefois convict and abuse of process, the charges had to be served and filed. The matter was adjourned to 7 July 2010 for the charges to be laid and for submissions to be made. The prosecution served and filed two charges of rape on 7 July 2010.
The matter was further adjourned to 19 July 2010 in order to provide the parties with an opportunity to make further submissions in relation to authorities of which I had become aware.
The accused has entered a plea in bar in the nature of autrefois convict in relation to the two charges of rape which have been laid. Despite the prosecutor foreshadowing that three charges of rape would be laid, the informant laid two charges of rape. A further charge has not been laid in respect of anal penetration. L/S/C Collins indicated that it was his understanding that the Informant was not of a view to lay a further charge of rape. He stated that there would be serious questions raised if a third charge was subsequently laid after a ruling had been made.
Ultimately, the Magistrate ruled on 20 August 2010 that the plea of autrefois convict was not open with respect to the rape charges and that the rape charges should not be stayed as an abuse of process. She made a series of consequential orders directed to achieving procedural fairness upon the hearing of the rape charges.
The accused then sought judicial review of the Magistrate’s orders. Both the original charges of sexual penetration and the rape charges stand adjourned in the Magistrates’ Court pending the outcome of the judicial review proceeding.
Since the Magistrate’s decision, the Court of Appeal has decided the matter of Clarkson v R.[2] A joint judgment of Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA clarifies the relevance of questions of consent in the context of sentencing in respect of charges of unlawful sexual penetration of a child.
[2][2011] VSCA 157.
It is apparent that the sentencing hearing with respect to the charges of sexual penetration against the accused broke down in the present case during the course of debate which was not finally resolved by rulings of the Magistrate. The accused and the first defendant have now accepted before me that the original sexual penetration charges provide an adequate vehicle for the resolution of the Crown case against the accused if the principles articulated in Clarkson are applied to it.
It has been agreed that this judicial review proceeding should be adjourned in order for the accused and the first defendant to return to the Children’s Court and resolve the matter by way of completion of the sentencing hearing in relation to the three charges of sexual penetration.
The second defendant was not represented before me[3] and the course proposed cannot therefore be achieved by orders made with the consent of all parties. In my view, the course proposed is an appropriate one. It will achieve resolution of the evidentiary difficulties which confronted the Magistrate upon the previous hearing in accordance with the principles the Court of Appeal has articulated. It will expedite finalisation of the matter in circumstances where such finalisation is in the public interest and the interest of the victim and the accused. It will give effect to the objectives of the Children, Youth and Families Act 2005.
[3]Her Honour has filed an affidavit correcting some factual errors in the material before the Court and otherwise quite properly indicated that she will abide by the Court’s decision.
For the assistance of the parties during the course of the hearing I summarised the evidentiary principles which appear to me to be relevant in the present case.
(a)Evidence of lack of consent by the victim is admissible upon the hearing in respect of a plea of guilty to a charge of unlawful sexual penetration as evidence of an aggravating factor in the offending. Proven absence of consent will significantly increase the gravity of the offence and the culpability of the offender: Clarkson[4] and the cases there cited.[5]
[4][2011] VSCA 157, [36].
[5]Poulton v Western Australia (2008) 37 WAR 211, [3]; Edwards v R [2001] WASCA 263, [3]; R v GP Unreported, WASCA 22 May 1997, [3]; Western Australia v SJH [2010] WASCA 40, [69]; Simon v Western Australia [2009] WASCA 10, [23].
(b)Evidence of violence is admissible upon the plea hearing in respect of a plea of guilty to a charge of unlawful sexual penetration as evidence of an aggravating factor: Clarkson[6] and the Western Australian cases there cited.[7]
[6][2011] VSCA 157, [43].
[7]Deering v Western Australia [2007] WASCA 212, [18]; Simon v Western Australia [2009] WASCA 10, [23], citing Poulton v Western Australia (2008) 37 WAR 211, [4], and Western Australia v Lee[2008] WASCA 150, [10].
(c) Section 38(2) of the Crimes Act 1958 provides:
(2) A person commits rape if—
(a)he or she intentionally sexually penetrates another person without that person's consent—
(i)while being aware that the person is not consenting or might not be consenting; or
(ii)while not giving any thought to whether the person is not consenting or might not be consenting; or
(b)after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(d)There are four elements of the offence under s 38(2)(a) – a person commits rape if he or she:
(i)sexually penetrates another person;
(ii)intentionally;
(iii)without that person’s consent; and
(iv)while being aware that the other person is not consenting or might not be consenting or while not giving any thought as to whether the other person is not consenting or might not be consenting.
(e)Consent is defined by s 36 of the Crimes Act 1958 to mean free agreement. The circumstances in which a person does not freely agree include those where:
(i)the person submits because of force or the fear of force to that person or someone else; and
(ii)the person submits because of the fear of harm of any type to that person or someone else.
(f)If the Crown adduces evidence of violence or lack of consent upon the plea hearing relating to a charge of sexual penetration of a child under 16, the Crown cannot invite the Court to infer from that evidence that the accused had the specific intention which would render the acts in issue rape (ie element (iv) as set out above).[8]
(g)If the fact of aggravating circumstances constituting violence or lack of consent is not admitted by the defence, then the Crown must establish those circumstances beyond reasonable doubt.[9]
(h)It cannot follow simply from the submission of evidence either as to the mode of penetration or the victim’s state of mind that the Crown is inviting the sentencing Court to draw an inference beyond reasonable doubt that the prisoner had the specific intent which would demonstrate guilt of rape.[10]
(i)The fact that such evidence might form a basis for such a conclusion (having regard to the matters set out in s 37AA of the Crimes Act) if rape were charged, does not make it inadmissible as evidence of objective aggravating factors with respect to the offence charged.
(j)The defence submission to the Children’s Court that evidence of violence could not in this case be severed from the issue of consent:
•was not correct if it was meant to convey that the evidence of violence contained in the summary submitted to the Court necessarily founded a case that the inference of the specific intent required for rape must be drawn beyond reasonable doubt;
•would not justify exclusion of the evidence if lack of consent was a matter relied on only as an aggravating factor with respect to the offence charged and not as a basis for drawing an inference as to the prisoner’s intention at the time.
[8]R v De Simoni (1981) 147 CLR 383.
[9]R v Olbrich (1999) 199 CLR 270.
[10]Such an inference would need to be the only inference reasonably open having regard to the evidence as a whole.
It follows from these principles that in the present case the further resolution of the sentence hearing will require either: (a) further and better agreement of the facts; or (b) evidence of aggravating circumstances from the Crown; or (c) acceptance by the Crown that in the absence of further evidence it cannot rely on aggravating circumstances which are in issue and have not been proved beyond reasonable doubt.
Nothing in this reasoning should be considered as criticism of the Magistrate’s handling of the sexual penetration charges up to this point in time. This Court is simply seeking to facilitate the further resolution of the matter in accordance with the agreement now arrived at by the accused and the first defendant.
For the sake of completeness I record that counsel for the first defendant indicated to this Court that he would request the Director of Public Prosecutions to intervene in and further facilitate the expeditious resolution of this matter.
Accordingly, I propose to make orders in the following form (omitting formal parts):
1. The Plaintiff and the First Defendant have agreed that:
a.The Plaintiff and the First Defendant will return to the Children’s Court constituted by Magistrate Bowles for the completion of the sentencing hearing in relation to the three charges of sexual penetration of a child under 16 in respect of which the Plaintiff has pleaded guilty.
b.The Second Defendant will be requested to have regard to this Court’s reasons for adjournment concerning the relevance of evidence of lack of consent and/or violence on charges of unlawful sexual penetration.
c.The two rape charges the subject of this proceeding are to be struck out upon the completion of sentencing by the Children’s Court of the Plaintiff with respect to the three charges of sexual penetration of a child under 16 referred to above.
2.The Court orders by consent as between the Plaintiff and the First Defendant that:
a.The Plaintiff’s application for judicial review is adjourned to a date to be fixed.
b.The Chief Commissioner of Police pay the Plaintiff’s costs of this proceeding up to today’s date.
c.Liberty to apply be reserved to the parties.
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