B C H v The Queen
[2011] VSCA 350
•14 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0354
| BCH | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WEINBERG, BONGIORNO and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 May 2011 | |
DATE OF JUDGMENT: | 14 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 350 | |
JUDGMENT APPEALED FROM: | DPP v [BCH] (County Court of Victoria, Judge Leckie, 22 July 2010 (date of verdict/conviction), 17 September 2010 (date of sentence)) | |
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CRIMINAL LAW – Conviction – Indecent assault of a person under 16, sexual penetration of a child under 10 and gross indecency with a person under 16 – Whether trial judge erred in failing to give, or to give a sufficiently clear, propensity direction – Whether trial judge erred in failing to warn against propensity reasoning and the use by the jury of evidence of uncharged acts – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Power & Bennett |
| For the Crown | Mr J D McArdle QC and Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with Harper JA
BONGIORNO JA:
I also agree with Harper JA.
HARPER JA:
The applicant is an uncle of the complainant, although their ages are relatively close. He is 11 years older than she. They were both still children – she merely five – when, according to her, he commenced to behave in sexually inappropriate ways with her.
This behaviour forms the basis of the first of a total of nine charges faced by the applicant at his trial. She was the complainant in each. He was convicted of the first three, but acquitted of the remainder.
The first of the three charges which resulted in a conviction was that the applicant indecently assaulted his niece, a person under the age of 16 (count 1). The second was a charge of sexual penetration of her, she being a child under the age of 10 (count 2). The third and final charge resulting in a conviction was of gross indecency with the complainant, a person under 16 (count 3). The applicant seeks leave to appeal against each of them.
The first incident allegedly occurred at some time between the beginning of March 1981 and the end of that year. The complainant, to whom I shall refer as VLJ, was then in the first year of her schooling. On the occasion in question she was in her bedroom, dressed in her school uniform, when the applicant entered. He asked her if she was interested in playing a game. He then lay beside her on the bed, and she remembers him unzipping the fly of his pants and pulling out his erect penis. He told her to rub her hands up and down it, which she did.
The second charge, that of sexual penetration of a child under the age of 10, occurred – according to VLJ – during the same period of some nine months (1 March 1981 – 31 December 1981) as the first. She claims that the applicant forced her to have oral sex with him, behaviour which she says resulted in him ejaculating inside her mouth.
The third charge arose, she says, out of events which took place between 1 March 1981 and 11 January 1984. She was then aged between five and seven. She says that she remembers being in bed asleep when the applicant woke her. He was clothed, but had removed his penis from his trousers. He told her to rub it, which she did, causing an erection. Hence the charge that he committed an act of gross indecency with her, then a person under the age of 16 years.
The remaining six charges which the applicant faced at his trial, and of which he was acquitted, included one charge of rape, one charge of attempted rape, two charges of indecent assault of a person under the age of 16 years, one charge of committing an act of gross indecency with a person under that age, and one charge of sexual penetration of a child under the age of 10.
All nine charges were the subject of evidence from VLJ. She also gave evidence of sexual behaviour by the applicant which did not result in any charges. This evidence, the Crown asserts, was not put as tendency evidence, but merely to provide context, ‘so that the jury were not left with the impression that there was a gap of some years between the charged sexual offending occurring.’
According to VLJ, some (but not all) examples of the offending behaviour occurred when he was her basketball coach. She first competed in that sport when she was 10 years old, and continued to play it until she was 14. There were occasions during those years, she claims, when her uncle would drive her home from basketball and, during the course of the journey, make inappropriate sexual contact with her. She gave examples, such as touching her in circumstances in which the sexual element was plain. She was, however, unable to recall with any degree of specificity what he did on any particular occasion.
On 16 August 2008, VLJ complained to the police. As a result, she was provided with a recording device and a microphone, which were concealed within her clothing. Thus equipped, she met the applicant and recorded the resulting conversations. Recordings were likewise made of other, later, conversations. During them the applicant made statements which could be taken as admissions that he had had sexual relations with VJL. Indeed, during the course of the evidence which he gave at his trial, he acknowledged two occasions during which he had penile/vaginal sexual relations with the complainant. But (as he asserted at the trial, and now re-asserts) these encounters were not only consensual, but also occurred after VJL was of the age when her consent deprived his behaviour of any criminality. Nevertheless, she was his niece, and the relationship was therefore one of embarrassment to him.
The applicant seeks to rely upon three proposed grounds of appeal. As set out in his written outline of submissions, they read as follows:
1.A miscarriage of justice occurred as a result of the failure of the trial judge to give a propensity direction as to the discreditable conduct being the appellants [sic] having oral sex with his niece.
2.A miscarriage of justice occurred as a result of the judge failing to give a sufficiently clear propensity direction, where the directions that were given could be construed as a warning against substitution of the uncharged acts with the charged acts, but not warning the jury as to propensity reasoning.
3.The learned trial judge erred in failing to warn the jury against propensity reasoning: that because the applicant was the kind of person to commit the crime, therefore he is guilty of the crime charged.
During the course of the trial, counsel for the applicant asked the trial judge to give what counsel described as a ‘propensity direction’ to the jury. In making this submission, counsel referred to what he described as the ‘very vague references to acts without time or place’; and he further submitted that the jury should be directed that they should ‘ignore those general aspects’. His Honour responded by noting that counsel had ‘made no submission to have this [evidence] excluded’ and that, accordingly, his Honour ‘took it [that] the parties let it go in.’ The judge continued:
I didn’t know whether tactically you wanted it in for some purpose, but it’s in. They’ve got to be given a direction on it and even though it’s vague they’re entitled, it seems to me, to use it by way of context. … [I]n relation to the basketball … she remembers … him rubbing himself against her and things of that nature, but that’s as specific as it gets.
Following further discussion along these lines, counsel for the applicant told his Honour that he would ‘be asking for a propensity direction at least.’ His Honour replied:
You'll get that. It's incumbent upon me [.] … [T]he direction says, ‘… I will now direct you on how you must not use this evidence. First, you must not use this evidence to reason that if the accused did these other alleged acts, he must have committed the offences charged. That is, even if you accepted this evidence, it would be wrong to say simply on this basis that because the accused committed these other acts, he must have done so again.
Secondly, if you accept this evidence you must not use it in an impermissible way, that is to prejudice you against the accused. Thirdly, flowing from the two warnings I just gave you, you must not substitute this evidence for evidence of the offences charged. You may only convict the accused of the offences charged on the indictment if you are satisfied beyond reasonable doubt that he committed those offences.
Rather, the questions for you are: does the evidence help you to understand the context of the alleged offence? Does it make the other offence[s] intelligible and does it assist in answering the questions you might otherwise ask?’
That is what the direction says and [what] I would be following.
Counsel for the applicant then told his Honour that he understood, but remained concerned that the uncharged acts were lacking in specificity.
Four days later, his Honour directed the jury about the importance of examining separately each of the nine charges which were then before the jury. He next turned to a related subject: the use to which the members of the jury could properly put the evidence of uncharged acts. In addressing the importance of separate consideration of each charge, the judge said this:
In this trial, the prosecution has brought nine charges against the accused – as you have seen on the document which is headed ‘Particulars of Offence’. While these are separate matters, they are all being dealt with in the one trial. This is done for convenience, as it would be expensive and time consuming to hold a separate trial before a different judge and jury for each charge. However, you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say that simply because you find the accused guilty – or not guilty – of one charge, that he must be guilty – or not guilty, as the case may be – of another. It would also be wrong if you do find the accused guilty of one of the charges to reason that, because he engaged in that misconduct, he is the kind of person who is likely to have committed any of the other charges. Each charge must be considered separately in light only of the evidence which applies to it. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If your answer is yes, then you should find the accused guilty of that charge. If the answer is no, then you should find the accused not guilty of it.
His Honour then directed the jury in the following words about their duty in relation to evidence of uncharged acts:
Members of the jury, in this trial the prosecution have led evidence of alleged sexual misconduct by the accused against the complainant which is not the subject of any of the charges … . Examples of that were that the complainant said in between the incident in the bedroom when the complainant said she was five to seven years old, which is count 3, and the incidents … which [are] counts 4 and 5, she said in her evidence that there were other incidents that occurred in between, but she cannot remember where they were or anything about them. But she was alleging other misconduct but there is no charge relating to it and there is very little specificity, as has been said a number of times, about those matters. The complainant also said that between the ages of 10 and 14 she was playing basketball and the accused would take her to and from the basketball. She said there were sexual contacts between them during those years, but she cannot recall the incidents again with any specificity. She also said, I think in cross-examination, there were incidents (but she cannot recall the details) that were between the incident which gives rise to counts 1 and 2 and the incident which gives rise to count 3. So in a number of instances she gave evidence saying ‘well, there were other things happening between us over this period, but I cannot give you any details or any specificity about that’.
I must now direct you about how you may use this evidence and then I will give you directions about how you must not use this evidence. If you accept this evidence you may use it to place the alleged offences in a complete and realistic context and setting. That is, it may help you better understand the circumstances of the alleged offence you are considering, such as to show that the complainant does not say that the offence occurred out of the blue, so they were just these isolated incidents. If you accepted that evidence, it may place the evidence she gives about the specific instances in a more realistic context and may help you better understand what she said was happening.
It is important that you only use this evidence to understand the context of the alleged offence or offences you are considering. It is only relevant to make the other evidence intelligible and to answer questions you might otherwise ask. It is not evidence that proves or disproves the accused’s guilt of the offences charged. It is also important that you only use this evidence if you are satisfied beyond reasonable doubt that it is true. If you do not believe the evidence, or do not think that it provides you with any assistance, then you should disregard it.
I will now direct you on how you must not use this evidence. First, you must not use this evidence to reason that if the accused did these other activities that are alleged, these other matters which are uncharged, that he must have committed the offences charged. That is, even if you accept this evidence, it will be wrong to say simply on this basis that because the accused committed these other acts, he must have done so again on the particular offence you are considering. Secondly, if you accept this evidence, you must not use it in an impermissible way, that is to prejudice you against the accused. Thirdly, flowing from the two warnings I have just given you, you must not substitute this evidence for the evidence of the offences charged. You may only convict the accused of the offences charged on the indictment if you are satisfied beyond reasonable doubt that he committed those offences. Rather, the questions for you are: ‘Does the evidence help you understand the context of the alleged offence; does it make the other evidence intelligible, and does it assist in answering the questions you might otherwise ask?’
The applicant in his written submissions contends that there:
… were two main prosecution methods in attacking the applicant’s sexual appetites both of which had the potential to excite propensity reasoning, if left to the jury without judicial guidance. First, were uncharged acts and secondly where the [applicant] admitted vaginal and oral sex with his niece. The guidance should have been forthcoming.
The following passage from the judgment of Callaway JA in R v Grech[1] is then cited:
[1][1997] 2 VR 609, 614.
In my opinion the jury should have been told that:
(a)the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and
(b) even if the jury accepted that evidence or part of it —
(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.
It is significant that his Honour added that:
The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.
The applicant’s principal attack on the judge’s charge in this case is that (as the applicant contends) the judge did not instruct the jury that they must not reason that, because the applicant engaged in sexual conduct with his niece on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.
In my opinion, this submission is not made out. I do not, in coming to this conclusion, place much weight on the fact that the judge, when directing the jury about the importance of their separate consideration of each charge, told them that it would be ‘wrong, if you do find the accused guilty of one of the charges, to reason that, because he engaged in that misconduct, he is the kind of person who is likely to have committed any of the other charges.’ I accept that he did not reproduce this form of words when directing the jury about the use they could make of the evidence of uncharged acts. His Honour did tell the jury, however, that even if they accepted the evidence of those acts, ‘it would be wrong to say simply on this basis that because the accused committed these other acts he must have done so again on the particular offence you are considering’. He further told the jury that if they accepted the evidence of uncharged acts they must not use it in an impermissible way, ‘that is to prejudice you against the accused.’ As I have already noted, he added:
Thirdly, flowing from the two warnings I have just given you, you must not substitute this evidence for the evidence of the offences charged. You may only convict the accused of the offences charged on the indictment if you are satisfied beyond reasonable doubt that he committed those offences.
As I understand the applicant’s submissions, he also contends that, when charging the jury, the judge should specifically have adverted to the relationship of uncle and niece – or at least to the applicant’s explanation ‘for the vaginal and oral sex with his niece’. That explanation, it is submitted, was ‘such that it ought to have attracted the propensity warning as a jury may reason that it is likely by virtue of that fact he may have committed the offence charged.’
I disagree. In my opinion, the judge gave clear directions about the use to which the jury could put evidence of uncharged acts. Adding a specific reference to the relationship of blood between them would – it seems to me – have been unnecessarily prejudicial.
In my opinion, none of the proposed grounds of appeal are arguable. I would refuse the application for leave to appeal.
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