B R L v The Queen
[2010] VSCA 258
•12 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0765
| BRL |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, BUCHANAN and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 March 2010 |
| DATE OF ORDERS | 26 March 2010 |
| DATE OF PUBLICATION OF REASONS | 12 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 258 |
| JUDGMENT APPEALED FROM | R v BRL (Unreported, County Court of Victoria, Judge Murphy, 5 August 2009 (conviction) and 11 August 2009 (sentence)) |
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CRIMINAL LAW – Appeals against conviction and sentence – Convictions on one count of an act of gross indecency to a person under 16 years and one count of indecent assault - Whether convictions on these counts inconsistent with verdicts of not guilty on 11 other counts of sexual misconduct – Whether verdicts unsafe and unsatisfactory – Inadmissibility of inconsistent complaint evidence – Appeal against conviction allowed – Convictions quashed and sentences below set aside – Verdicts of acquittal entered.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Littleton Hackford & D’Alessandro |
| For the Respondent | Mr C J Ryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons of Harper JA. It was for those reasons that I joined in the orders of the Court.
BUCHANAN JA:
I agree with Harper JA.
HARPER JA:
On 29 July 2009 the applicant pleaded not guilty in the County Court sitting at Sale to thirteen counts, each of which alleged a sexual offence. In summary, the Crown case was that the applicant had sexual relations with two children, DM and TB, who are brother and sister and the step-children of one of the applicant’s brothers.
The impugned relationships gave rise to ten counts (counts 1-10) in which DM was the complainant, and three (counts 11-13) in which the complainant was TB. Four of the five counts of sexual penetration with a child involved DM; the fifth, TB. In three of the four counts of gross indecency, DM was the complainant; in the remaining count in this category, the complainant was TB. She was also the complainant in one of a total of four counts of indecent assault.
The trial occupied six days from 29 July. On Tuesday 4 August, following a direction by the trial judge, the jury returned a verdict of not guilty on count 5. On the next day, the applicant was found not guilty on all the remaining counts except counts 7 and 13. The first of the guilty verdicts, returned on count 7, was that the applicant, on an occasion in the 12 months between 23 September 1987 and 22 September 1988, procured the commission of an act of gross indecency by DM, a person then under the age of 16. The other count on which a verdict of guilty was returned, count 13, was that at some time during the eight weeks between
1 August 1988 and 30 September 1988, the applicant indecently assaulted TB. DM was about 14 years of age at the time of the procuring which was the subject of count 7, while his sister TB was 12 at the time of the alleged indecent assault upon her. The applicant, who was born on 1 May 1965, was about 22 years old (in the case of DM) and was 23 (in the case of TB).
Following his conviction on counts 7 and 13, the applicant was on 11 August 2009 sentenced to ten months’ imprisonment for the indecent assault on TB (count 13) and four months’ imprisonment for procuring the commission of an act of gross indecency on DM (count 7). The maximum punishment on count 7 is two years’ imprisonment. On count 13, it is five years’ imprisonment. Two months of the sentence on count 7 was ordered to be served cumulatively on the sentence imposed on count 13. Accordingly, the total effective sentence was 12 months’ imprisonment. His Honour ordered that six months be served immediately and that the balance be wholly suspended for a period of 12 months.
A notice of application for leave to appeal against conviction and sentence was filed on 21 August 2009. On 11 September, the applicant was granted bail by this Court. The full statement of the grounds of appeal was due to be filed on 23 November. It was in fact filed on 24 November, and was therefore one day late. An application to reinstate the application for leave to appeal was not opposed by the Crown, and was granted by the Court.
The latter application (that being an application for leave to appeal) was heard by this Court on 26 March 2010. Although not on that day in a position to give reasons, it was the Court’s unanimous view that the appeal should succeed. The Court therefore ordered on 26 March that the application for leave to appeal be allowed, that the appeal be treated as having been instituted and heard instanter and allowed, that each conviction recorded in the court below be quashed and each sentence imposed be set aside, and that a verdict of acquittal be entered on counts 7 and 13.
I now publish my reasons for agreeing in the judgment of the Court.
Six grounds of appeal against conviction were initially put forward. Grounds 1 and 2 have since been abandoned. Grounds 3 and 5 concern count 7. Ground 3 is that the guilty verdict on that count is inconsistent with the verdicts of not guilty on each of the remaining counts in respect of which DM was the complainant. Ground 5 is the general ground that the verdict on count 7 is unsafe and unsatisfactory; but, since the reason put forward for it being so is that of inconsistency with the other verdicts, the two grounds may be examined as one.
The same is true of count 13. Ground 4 is that the guilty verdict on that count, TB being the complainant, is inconsistent with the verdicts of not guilty on counts 11 and 12; and ground 6 is that the guilty verdict on count 13 is unsafe and unsatisfactory. But, following the pattern set in relation to DM, the latter description is said to be warranted by the inconsistency between the one guilty and the two not guilty verdicts which were based upon TB’s complaints.
The respondent sought in its response to argue that the difference between the verdicts was explicable, as there were sound reasons for differentiating between counts 7 and 13 on the one hand and the remaining counts on the other.
Count 7 – DM complaint
The Crown case on count 7 was that in 1989, when DM was in year 10 at school, and at either 14 or 15 years of age, he had returned from a day at school to his grandparents’ home. This was also the home of their son, the applicant. Complainant and applicant were together in the lounge room when the applicant produced a number of magazines containing hard-core pornographic material. At the instigation of the applicant, the two knelt side by side on the carpeted floor while the applicant turned the pages of the magazines and, having suggested that they masturbate together, adopted his own suggestion to the point of ejaculation. At the same time, he encouraged the complainant to join him by stating that it ‘was a good thing for people to do’ and that ‘blokes did this stuff together.’ DM made some attempt at compliance, but when asked by the applicant whether he had ‘come’, falsely made out that he had.
Asked by the prosecutor whether he had reported this incident to any one, DM nominated the year 10 co-ordinator at his school, ‘a school teacher I felt close to’. No ‘graphic detail’ was given, ‘but I intimated ... that I was being interfered with.’ DM added that he believed he told the co-ordinator who the offender was. He declined the teacher’s offer of assistance.
In cross-examination, it was put to the complainant, and he agreed, that in a statement to the police he said that ‘I told my teacher, [the co-ordinator] ... that I was being made to have oral sex with [BRL]’ [the applicant]. Counsel then suggested that the witness ‘never named BRL’. DM responded: ‘I say that that’s not true.’
The co-ordinator was called by the Crown. He said that he noticed DM remaining at the school after he was expected to have gone home. He asked why, ‘and over a period of time [DM] confided in me that ... he was a bit concerned about going home’ because ‘sometimes when he was in the shower ... there’d be pornographic magazines thrown into the bathroom floor [by] ... a male relative’ who was not otherwise identified. Thereafter, the witness ‘just monitored him [DM] over the next number of months at school for that particular year, just to see if he was having any problems at school and he was socially fine, he ... wasn’t being alone or anything he was mixing with a group and doing everything every other student was doing and he seemed to be physically fine.’
In cross-examination, DM agreed that, as far as he could remember, he never showered at his grandparents’ house. He also agreed that the applicant never threw magazines on the floor when he, DM, was in the shower.
The applicant argues that the co-ordinator’s evidence demonstrates how unreliable a witness the complainant is. Whereas the co-ordinator speaks of an incident at home, the complainant says it took place at his grandparents’ house. The co-ordinator says that, as reported to him, DM was subjected to the indignity of having pornographic material thrust into his personal space while he was in the shower. Masturbation is not mentioned in the co-ordinator’s account of what he was told. DM’s evidence was of the pornography being used as a stimulant in a joint episode of masturbation, the other and instigating participant being the applicant, who he identified by name to the co-ordinator. The co-ordinator says that no-one was named.
In opening the Crown’s position on the applicant’s plea following his conviction on count 7, the prosecutor sought to turn the applicant’s argument about inconsistent evidence on its head. Whereas at the trial the applicant had sought to highlight the inconsistencies between the evidence of DM and that of his former teacher, and thereby discredit DM, the prosecutor submitted that the co-ordinator provided ‘some supporting evidence by way of complaint’ about ‘sexual misconduct by a relative … in relation to pornographic magazines’.
A similar approach to that taken by the Crown on the plea was adopted by the prosecution on the application for leave to appeal against conviction. In its outline of submissions, the respondent argued that ‘count 7 was supported by complaint evidence from both DM and the recipient of the complaint, the co-ordinator, and was the only count on the presentment concerning DM that did.’ In other words, it was submitted, the evidence of the co-ordinator bolstered the evidence of DM to the point that a verdict of guilty, otherwise based solely upon the complainant’s evidence, could be justified.
Complaint evidence is only relevant, and hence only admissible, to the extent that it may properly assist the jury to assess the credibility of the complainant.[1] In other words, it is admissible as evidence of consistency of behaviour, not as evidence of the facts about which complaint is made.[2] It therefore follows that a complaint which is inconsistent, or only consistent in part, with the complainant’s evidence, may be inadmissible, because irrelevant, if tendered by the prosecution.[3] At the same time, ‘the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the [complainant] in evidence and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the [complainant].’[4]
[1]Ugle v The Queen (1989) 167 CLR 647.
[2]Suresh v The Queen (1996) 16 WAR 23.
[3]R v Braye-Jones [1966] Qd R 295.
[4]Ibid 297 (Lucas J, with whom the other members of the Court of Criminal Appeal agreed).
Although ‘the matter is one of degree’, the inconsistencies between the evidence of DM and the evidence of the co-ordinator are in my opinion such that they overwhelm those points - in the references to pornographic material and to a male relative - at which the accounts converge. As the Court of Criminal Appeal (Victoria) said in R v Freeman:[5]
The ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.
[5][1980] VR 1, 5.
In my opinion, this complaint does not bolster DM’s credit. On the contrary, it weakens it.
The respondent submitted that count 7 was to be further distinguished from the other counts involving DM because no other alleged misconduct occurred in the period September 1987- September 1998, and because the misconduct itself:
… was different in nature to the other counts in that it was not penetrative. Count 7 was a single offence not supported by uncharged acts of a similar kind.
It is true that there were no allegations of misconduct, save that alleged by count 7 itself, in the period covered by that count. It is also true that DM gave evidence of many uncharged acts, including acts of masturbation; and, unlike the incident which the complainant describes as taking place in the lounge room of his grandparents’ home, these involved fellatio with, and the masturbation of, the applicant ‘on many, many occasions … by the time [he was] 11 or 12’. The difference, therefore, is that the episode with the pornographic magazines did not involve DM making physical contact with the applicant, whereas the other acts of masturbation not only involved physical contact but were accompanied by oral sex. In this sense, it can be said that count 7, unlike the other charges, was not supported by uncharged acts.
But to say that a verdict of guilty can be distinguished from a series of ‘not guilty’ verdicts – and that the former can thereby be justified – because, unlike the not guilty verdicts, it is not ‘supported’ by evidence of uncharged acts, is to turn logic on its head.
The other distinction relied upon by the Crown to differentiate the guilty verdict on count 7 from the not guilty verdicts on every other count involving DM is not as wobbly as this, but is unconvincing nevertheless.[6] The alleged act of gross indecency was different in time, in the sense that, on DM’s account of events, it was committed in a period during which no other improper acts giving rise to a charge (as opposed to uncharged acts to which no specific time has been allocated) are alleged. But other charged acts, while said by the prosecution to have occurred within the same period as yet more charged acts, and grouped accordingly, were isolated in time from other charged acts similarly grouped. More importantly, there is nothing to link time with guilt or the absence of guilt. In other words, the time at which an act of sexual misconduct is said to have occurred is not relevant, in the circumstances of this case, to the differentiation between a count which warrants a verdict of guilty and a count which does not.
[6]I do not by this observation intend any disrespect to senior counsel for the respondent, whose submissions were put with commendable clarity and brevity.
The respondent points out, correctly, that it was not asserted by the applicant during the trial that the evidence of complaint was not fit to go to the jury. Nor was that point taken on appeal. But the applicant seeks to rely not so much on its irrelevance as on its incapacity to explain or justify, when set against the verdicts of not guilty on counts 1-6 and 8-10, the verdict of guilty on count 7. Indeed, the applicant’s position both at trial and before this Court was that the evidence of complaint, while not probative of the prosecution case, was relevant to the defence for the reason that it cast doubt upon the credibility of the complainant. It was, therefore, fit to go to the jury, although the use to which the jury could properly use it was limited; it was relevant not because it was incriminating, but because it was exculpatory.
Count 13 – TB complaint
The respondent relies, in opposition to grounds 4 and 6 of the application for leave to appeal, on much the same points as were made in relation to grounds 3 and 5. Count 13 alleges an indecent assault committed by the applicant against TB in the period 1 August 1988 to 30 September 1988. By contrast, count 11 alleges an act of gross indecency committed on TB by the applicant between 1 June 1983 and 31 August that year; while count 12 alleges the sexual penetration of TB by the applicant in the period 1 June 1983 to 26 January 1986. This, according to the respondent, provides a basis upon which the jury could properly return a verdict of guilty on count 13 and not guilty on counts 11 and 12. For the reasons given in relation to DM, I reject this argument.
It is then said that the conduct alleged in count 13 is different in nature from that alleged in the other two counts. That is true. But each is, by the nature of the several allegations, different from the other. Those differences, therefore, say nothing about the basis for the differences in the verdicts.
TB turned 7 in 1983. Like DM, TB gave evidence of uncharged acts. In her case, the evidence, which resulted in count 11 – that between June 1983 and the following August the applicant committed an act of gross indecency upon TB – was that ‘every weekend’, in the applicant’s bedroom, over a period of approximately three years when TB was between seven and nine years old, he ‘pulled out his penis and then he made me touch it … I had to hold it and then pull it backwards and forwards.’ ‘More than once’ between June 1983 and the time in 1986 when TB moved with her family to Tasmania, he also ‘would … make me put my mouth on it and then he would grab my hair and push my head up and down.’ This evidence formed the basis for count 12.
The evidence of the indecent assault upon which count 13 is based was that, in 1988 when TB had returned from Tasmania and had gone to her grandparents’ home after school, the applicant pushed her onto the kitchen table and put his hands down her tracksuit pants, inside her knickers, and while forcefully kissing her, pushed and pulled on her vagina. Two days later, he told her that he would pay her $5.00 if in return she allowed him to feel her breasts. She declined the offer, and later reported both incidents to her mother. Asked whether she also reported ‘at that time about all the … things that had happened years earlier’, she replied: ‘No’.
In her evidence in chief, TB’s mother said that, one Sunday in October 1988, TB ‘told me that [BRL] kept touching her … on her boobs.’ Under cross-examination, the witness agreed that this was ‘the first [she] had heard of any suggestion of any difficulty involving [TB] and [BRL]’.
This maternal evidence cannot amount to a complaint which the jury was entitled to use as strengthening TB’s credit. She gave no evidence of being touched on the breasts. She told the jury only of a request by the applicant that, in return for a monetary payment, he be allowed to touch her in this otherwise forbidden way. And, according to TB’s mother, her daughter did not complain to her about the respondent’s conduct in fondling TB’s vagina.
Unsafe and unsatisfactory
It is against this background that the Court is asked to conclude that the verdicts on counts 7 and 13 are each unsafe and unsatisfactory. It must be conceded that the jury had before it the evidence of DM that the applicant sat with him one afternoon with a collection of pornographic magazines and exhorted him, a boy of about 14 or 15 years of age, to copy the older man as the latter masturbated himself. It must also be conceded that, had the jury been satisfied beyond reasonable doubt that, in giving this evidence, DM was telling the truth, then all the elements of the crime of gross indecency would have been made out. Likewise, the jury had before it evidence that, on an occasion when TB had gone to her grandparents’ home after school, the applicant had without her consent pushed her onto the kitchen table and, while forcefully kissing her, pushed and pulled on her vagina. Again, were the jury satisfied beyond reasonable doubt that this evidence was the truth, all the elements of the crime of indecent assault would have been made out.
In the case of each of counts 7 and 13, senior counsel for the Crown put before us every argument which might point to the conclusion that counts 7 and 13 could be relevantly distinguished from the remaining counts - in respect of each of which verdicts of not guilty had been returned. Despite the clear and careful way counsel for the respondent approached this task, the result in my opinion is that it was not open to the jury to be satisfied to the requisite degree of the applicant’s guilt on either count. It would therefore be dangerous in all the circumstances to allow the two verdicts in question to stand. I concluded, accordingly, that the appeal must be allowed and the convictions quashed.
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