and Paul Michael Thomas v The Queen
[2013] VSCA 183
•23 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0038 | |
| PAUL MICHAEL THOMAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and COGHLAN JJA and DIXON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 July 2013 | |
DATE OF JUDGMENT: | 23 July 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 183 | |
JUDGMENT APPEALED FROM: | DPP v Paul Michael Thomas (Unreported, County Court of Victoria, Judge Mason, 27 June 2012) | |
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CRIMINAL LAW – Conviction – Sexual penetration of child under 16 years – Whether judge failed to direct jury as to previous representations – Whether judge erred in failing to direct jury as to uncharged act – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G M Hughan | Victoria Legal Aid |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
Following a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under 16 and sentenced therefor to two years’ imprisonment with a non-parole period of 15 months. He now seeks leave to appeal against conviction.
The Crown case at trial
The applicant was born on 22 September 1962 and, at the time of the offence, he was aged between 40 and 41 years. At the time of the offence, the complainant was aged seven years. During the relevant period, the complainant lived with her mother and siblings in a country town and the applicant lived in another country town close by. The applicant and the complainant’s mother became romantically involved and on occasions stayed over night at each other’s homes. On one such occasion, shortly after the complainant’s seven birthday, the complainant accompanied her mother and brother, A, on a visit to the applicant’s home. Following the visit, the applicant drove them all back but the complainant and A then returned with the applicant to his home to stay over night and play with each other and with the applicant’s son.
The Crown case was that, on the following day, the complainant was playing with one of the applicant’s sons on a computer in a bedroom in the applicant’s home. At the time, she was wearing jeans and a ‘flower top’. At some stage, she left the room and, when she returned, the applicant was sitting alone on a chair close to the computer. The applicant asked the complainant to sit on his lap, which she did, and the applicant then undid her jeans, inserted his finger into her vagina and moved it from side to side for some time. According to the complainant, the penetration lasted for possibly half an hour and the applicant only stopped it when it was time for the complainant to leave. He then drove her home. The complainant said that she did not say anything to the applicant during the incident because she was too shy to speak about it.
The complainant did not tell her mother about the incident either and, when asked why not, she said that it was because she did not think that her mother would believe her. According to the complainant, she told her sister, B, about it later that evening but, when it was later put to her in cross-examination that B had no recollection of the conversation, the complainant said that she thought that B may have been asleep dreaming when she told her.
B gave evidence that she went straight to sleep on the night that the complainant returned home from the applicant’s house and she said that she did not recall the complainant telling her anything about the incident at that time. She also said that, on the following day, the complainant told her that the applicant had picked her up and touched her, pointing to her chest area as if to indicate that the touching had been on her chest, and did not say anything then about the applicant touching her vagina. When cross-examined about that evidence, the complainant said that she did not recall the conversation but conceded that it could have occurred.
B gave further evidence, however, that, after the complainant returned home from the applicant’s home, she seemed very ‘clingy’ towards B and that the complainant’s apparent attitude towards the applicant changed with the complainant becoming rude, mean and nasty towards him.
The complainant’s father, F, gave evidence to similar effect. He said that, by January 2004, he had become concerned about changes he noticed in the complainant’s behaviour and that, on 9 January 2004, he asked the complainant whether the applicant had ever touched her. She replied that the applicant had got her to sit on his knee at his computer, where he undid her fly and put his finger in her vagina.
The complainant recorded a VATE statement with police on 15 January 2004 which constituted her evidence-in-chief at the trial and she was cross-examined on that evidence at the special hearing.
The complainant was also medically examined on 14 January 2004 and the examining physician gave evidence that, upon examination, the complainant was found to have normal anatomy without evidence of any damage, injury or scarring to the genital area. He also said that the complainant did not complain to him of any pain or discomfort as a result of the experience. But he added that penetration of the external genitalia could have occurred without causing damage or scarring.
Police interviewed the applicant on 21 January 2004 but he declined to answer any questions. He was subsequently released pending further investigations but, on 15 February 2011, he was charged with the offence.
The defence case at trial
The defence case at trial was to deny that the alleged offence occurred. The applicant did not give evidence
Ground 1 – Failure to direct the jury as to the use to be made of the complaint to B
The applicant’s first and principal ground of appeal is that the judge erred by failing to direct the jury that they could not use evidence of the complainant’s statement to B - that the applicant had ‘touched her and she pointed to her chest area’ - as evidence of the alleged offence or as going to the assessment of the credibility and reliability of the complainant’s testimony; and further or alternatively that the judge erred in failing to direct the jury that they could not treat that evidence as evidence which was independent of the complainant.
The relevant part of the judge’s directions was as follows:
… My next direction to you is how you consider the evidence that has been put before you about complaint, the fact that a complaint was made and how you view that. You have heard evidence that [the complainant] made a complaint about the alleged assault to her father in January 2004, she also said that she complained to her sister [B] after going to bed on the night of the same day of the incident.
Now it is for you to determine whether [the complainant] first of all made the alleged complaints, did they occur, did she complain. [The complainant's] father said that she complained to him one night in January 2004 when he was putting her to bed, he said she had been acting strange for a while, not getting on with people at school, just not being herself. He asked her what was going on and eventually he asked her ‘Has [the applicant] ever touched you?’ She then said she had been sitting on a chair – computer, [the applicant] had come into the room and told her to stand up, then sit on his knee, and then he undid her fly and stuck his finger in her vagina.
[The complainant] said that she told her dad what [the applicant] had done to her, not in those terms that the father described. She also said that she told [B] but did not know if she was awake, that is whether [B] was awake and did not think she had heard her. [B] said, she did not recall [the complainant] saying anything to her on the night she came back from [the applicant's]. [B] said that she had asked [the complainant] to turn off the light and then she went straight to sleep, that is [B] went to sleep.
[B] did recall something else the next day that [the complainant] had said in front of her, and a neighbour … , that when [the applicant] picked her up he touched her, and pointed to her chest area. [The neighbour] made a joke and [the complainant] laughed it off and ran off. [The complainant] could not recall that event occurring.
As to the complaint, if you find that she did, that is [the complainant] did make a complaint, you can use the evidence of complaint in two ways. First you can use the contents of [the complainant's complaint] as evidence in the case. For example, you can use [the complainant’s] statement to her father as evidence of her being sexually assaulted in the way she has described. When considering this evidence it is important to remember that just because a person says something on more than one occasion that does not mean that what she says is truthful or accurate. A false or inaccurate statement does not become true or accurate by virtue of it being repeated.
Secondly, you can use [the complainant's] complaint to assess her credibility. The fact that [the complainant] made the complaint and the content of that complaint may show that her account of the events in question has been consistent, in this case it is a fundamental proposition of the defence that there is an inconsistency in the complaint because the father's account of what she said to him differs as to the structure of how events unfolded in the room to the detail that is given by the complainant …to the police. So you look at that for consistency.
You can ask yourselves whether [the complainant] acted in the way you would expect her to act if she had been sexually assaulted as she has alleged. Was her conduct in making the complaint the sort of conduct you would expect of a person in her position at the time.
In addition the evidence of complaint may rebut an argument that the absence of complaint would suggest the offences did not take place. Now in this case the prosecution submitted that the fact that [the complainant] complained about the alleged incident in this manner makes it more likely she is telling the truth, that is about her being penetrated in the way she has described to police, because it was spontaneous, fluent, there was no challenge to the fact that she had actually made a complaint, and the details of the difference between her account and the account her father gave peripheral and unimportant and people obviously sometimes get the details wrong, but remember the fundamental essence, and you will remember the example just given you by [the prosecutor] about recalling, for example, circumstances of her motor car accident. You might remember the very precise details of what occurred, the fundamental ones, but you might have been mistaken as to what might be the more peripheral aspects of the development.
Now the defence disputed this proposition, this argument, and said, look, the complaint made to her father was prompted by persistent questioning over an extended time or period by her father. It was answered ultimately in response to a direct question suggesting [the applicant's] name, and in circumstances where she had a strong desire, that is, where [the complainant] had a strong desire to leave her mother's home, because of the violence at home.
Furthermore, [the complainant’s] father's evidence of the nature of the complaint was inconsistent with the circumstances that she gave the police, where she said she had gone to the toilet and had come back to see [the applicant] sitting on the computer chair, so you get different accounts as to the circumstances of it being on the chair with [the applicant].
As to the alleged complaint to her sister [B], [B] has no recollection of what occurred in the bedroom that night and has a recall of an entirely different incident by way of allegation the next day.
Now it is important to treat, or consider how you treat the evidence of someone else as evidence of complaint and whether it is independent. It would be a mistake to treat the evidence of [the complainant’s] father as evidence that is independent of the complainant, although he gave evidence about the complaint on oath in court, it was [the complainant] who was the source of that evidence. So you may use this evidence, [of the complainant’s father], about the fact that there was a complaint in the ways I have just described, as evidence of the offence or in your assessment of [the complainant's] credibility but you must not mistake it for independent evidence of the offence, that was pointed out by [defence counsel]. It is not independent but you can use it as evidence in the way I have described, and bear in mind the respective arguments from each of the parties as to how you would view the credibility in those circumstances, it is a matter for your balanced judgment.[1]
[The complainant] gave evidence that she first complained about the conduct to her sister the very night after the event. Her sister does not recall that occurring because of the circumstances of going to bed and asleep that night. The first person who can recall the complaint by [the complainant] is her father F who said [the complainant] complained to him on around 9 January 2004, so there is a delay of up to five months to the point of him recording a complaint.[2]
[1]Transcript 117.4-120.28 (emphasis added).
[2]Transcript 121.17-25.
Counsel for the applicant argued that the net effect of that direction was to bundle together, and so to treat as if alike, evidence of each of three separate complaints, being: (1) the representation of 9 January 2004 by the complainant to her father in response to her father’s question - ‘Had [the applicant] ever touched her’, which evidence was given by both F and the complainant with some differences as between their respective accounts; (2) the representation said to have been made by the complainant to her sister B on the night following the alleged offence, which evidence was given by the complainant alone; and (3) the representation, about which only B gave evidence, that the complainant told her that the applicant had picked her up and touched her and the complainant pointed to the area of her chest. Counsel submitted that, inasmuch as the judge so bundled the three representations together and treated them as if alike, his Honour effectively invited the jury to use the evidence of the third representation impermissibly as evidence of the alleged offence and as evidence capable of supporting the credibility and reliability of the complainant’s testimony.
In my view, the argument should be rejected. As I read the judge’s directions, they were plainly enough to the effect that there were only two alleged complaints or previous representations on which the Crown relied as evidence of the alleged offence or as supporting the complainant’s credibility and reliability. As his Honour described them, they were the complaint made by the complainant to her father in January 2004 and the complaint which the complainant said that she made to her sister B, but which B did not recall, in the bedroom which they shared on the night following the offence. They were the only two incidents which the judge described in terms of ‘complaint’ and, tellingly, as can be seen from the direction to which I have referred, his Honour expressly contrasted those two ‘complaints’ with what he characterised to as the ‘entirely different incident by way of allegation the next day’.
The distinction which the judge thus drew between the two ‘complaints’ on the one hand and the ‘entirely different incident by way of allegation the next day’ on the other hand, also accorded with the manner in which the trial was conducted. The Crown did not suggest that the conversation between the applicant and B on the day following the offence was to be regarded as evidence of a complaint or previous representation which supported the Crown case. Similarly, the defence only ever referred to that conversation as evidence of inconsistency which undermined the credibility and reliability of the complainant’s testimony. Thus, in summarising defence counsel’s final address, the judge put the position as follows:
[Defence counsel] said that the prosecution therefore rests solely on the credibility of [the complainant] and that credibility is shattered. Her evidence is not reliable, it is not consistent, it is not consistent between herself and her father as to the fundamental way in which she said it occurred. It is not consistent with her sister, where she said she complained to her sister, and that she has a capacity to be mischievously manipulating. By virtue [defence counsel] argues of creating the excuse as to why [B] may not have recalled the circumstance because she spoke to her the day before she was giving her original interview, and was told that [B] did not recall, and then said to the interviewer the next day, ‘Well, that must have been because she was going to sleep or having a dream, and that showed a capacity to create matters that suited herself to fit with her story.’
Apart from her general unreliability with the way in which she described the occurrence to the police as opposed to what she said to her father, on her father's evidence, it went beyond that, there is an implausibility about the matters occurring in the way that she said it did because the door is open. [C] is in his room, she does not know where [applicant’s son] is and it is day time, and so the fact of that matter is that it is an implausible act apart from its inconsistency.
You cannot excuse away those fundamental differences, argues [defence counsel], simply because of the passage of time, because she said something different right back at that time in 2004, that is what she said to her father, as opposed to what she said to the police, and this is fundamental her credibility and reliability as a witness, and you are asked to convict on that evidence alone and it is fundamental.
Other inconsistencies are, that her father says she was not going well at school. [The complainant] says, ‘No, I was all right.’ The father says that she was wetting the bed and she said there was nothing wrong with her. [B] says that [the complainant] claimed that she had been touched on the chest area, indicating the chest area, and [the complainant] did not recall that. And then there was the evidence that you might accept that in fact she was wrong even about the number of nights that she stayed there being two nights on the evidence, as opposed to [the complainant] saying she could only remember one night, so she is inconsistent with [B] there.[3]
[3]Transcript 148.4-149.17 (emphasis added).
Perhaps, it would have been better if the judge had included in his directions an express admonishment to the effect that the evidence of the conversation between the applicant and her sister B on the day following the offence was not capable of being seen as evidence of the offence or as supporting the credibility or reliability of the complainant’s testimony. That would have avoided the need for this court to consider the overall effect of the judge’s directions in the manner that has proved necessary. Self-evidently, however, B’s evidence as to the complainant saying that the applicant touched her on the chest was not capable of being viewed as evidence of the act of sexual penetration which was charged and, if the jury might otherwise have been in any doubt about that, the doubt was surely excluded by the judge’s express characterisation of it as ‘an entirely different incident by way of allegation the next day’.
I am strengthened in that conclusion by the fact that very experienced defence counsel did not take exception to the judge’s direction. In the circumstances of this case, that bespeaks a rational degree of confidence on counsel’s part, informed, no doubt, by the atmosphere of the trial, that the judge’s direction were adequate to convey to the jury the manner in which the evidence of the conversation with B could and could not be employed.[4]
[4]R v Wright [1999] 3 VR 355, 360 [16].
Accordingly, I reject Ground 1.
Ground 2 – Failure to direct jury as to an uncharged act
Under cover of Ground 2, it was contended that the judge erred in failing to direct the jury that they were not to use B’s evidence of the complainant’s allegation, that the applicant had touched her on the chest, as evidence of improper behaviour.
I do not accept that contention. It was not suggested at trial or, in my view, otherwise likely to be thought that there was anything improper about the applicant picking up the complainant and in the process touching her on the chest. After all, she was a child of only seven years of age and so picking her up and touching her on the chest could hardly be regarded as sexual. Nor was the act of touching the
complainant’s chest at any time referred to by the Crown or the defence as evidence of other than of an innocent act of contact which was inconsistent with the complainant’s allegation of sexual penetration.
Once again, it might have been better if the judge had included an express direction to that effect – if only to avoid the risk of it later being contended that the jury could have been misled. But, in my view, there was no risk of the jury being misled and, once more, I am fortified in that conclusion by the absence of exception. It also follows that there was no occasion for the judge to warn the jury that the complainant’s statement that the applicant had touched her on the chest was not independent evidence of that fact.
Accordingly, I reject Ground 2.
Conclusion
In the result, I would refuse leave to appeal.
COGHLAN JA:
I agree.
DIXON AJA:
I also agree.
NETTLE JA:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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