Bolton (a pseudonym) v The Queen
[2022] VSCA 81
•6 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0152
| CLYDE BOLTON (a pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant’s name.
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| JUDGES: | MAXWELL P, PRIEST and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 March 2022 |
| DATE OF JUDGMENT: | 6 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 81 |
| JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Gaynor, 14 June 2019) (Conviction) |
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CRIMINAL LAW — Appeal — Conviction —Incest, indecent act with child under 16 and gross indecency with a person under 16 perpetrated against appellant’s daughter and granddaughters — Whether conviction for incest on charge 2, was unreasonable or cannot be supported having regard to the evidence — Whether evidence capable of establishing that sexual penetration occurred — Whether verdict of attempted incest should be substituted — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr R Edney | Stary Norton Halphen |
| For the Respondent: | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the respective reasons for judgment of Priest JA and Sifris JA. I agree with Sifris JA that the appeal should be dismissed, for the reasons which his Honour gives.
PRIEST JA:
By this appeal[2] the appellant challenges his conviction by jury on one charge of incest[3] — he does not attack seven other convictions returned by the same jury — committed against his daughter. The circumstances are as follows.
[2]On 31 August 2021, the appellant was granted both an extension of time and leave to appeal against conviction: Bolton (a pseudonym) v The Queen [2021] VSCA 237 (Kyrou and Kennedy JJA).
[3]Section 52(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
An indictment filed in the County Court charged the appellant with incest and other offences perpetrated against his daughter, ‘NA’, on various dates in the period between 7 July 1984 and 31 December 1987; and with incest and committing an indecent act with a child under 16, perpetrated against his granddaughters, ‘AT’ and ‘GT’, in a period between 1 January 2009 and 31 March 2014.
On 14 June 2019, a jury empanelled to try the appellant found him guilty of gross indecency (charge 1) and incest (two charges — charges 2 and 3) involving his daughter; and of incest with AT (charges 8, 9, 10 and 12), and committing an indecent act and incest with GT (charge 11). Subsequently, on 9 August 2019, the trial judge sentenced the appellant to a substantial period of imprisonment in accordance with the following table:
Charge Offence Sentence Cumulation 1 Gross indecency with a person under 16 6 months Nil 2 Incest 2 years 1 year 3 Incest 7 years Base 8 Incest[4] 2 years 1 year [4]The appellant was sentenced as a serious sexual offender on charges 3, 8 to 12: see Sentencing Act 1991, Part 2A.
9 Incest 2 years 1 year 10 Incest 2 years 1 year 11 Indecent act with a child under 16 6 months 3 months 12 Incest 2 years 1 year Total effective sentence: 12 years and 3 months’ imprisonment Non-parole period: 9 years and 6 months Other relevant orders: Sex offender registration; forensic sample.
In my view, the sole ground of appeal — that the verdict on charge 2 is unreasonable or cannot be supported having regard to the evidence in that the evidence ‘did not establish beyond reasonable doubt that sexual penetration occurred’ — should succeed. For reasons that follow, I would allow the appeal; set aside the conviction for incest on charge 2; and substitute a judgment of conviction for attempted incest.[5]
[5]See Criminal Procedure Act 2009, s 277(1)(c).
The Amended Summary of Prosecution Opening, filed for the purposes of the trial — which must outline ‘the manner in which the prosecution will put the case against the accused’[6] — described the circumstances of charges 1 and 2 as follows:[7]
When [NA] was 13 or 14 years old, she and the accused were in her parents’ room. The accused made her put Vaseline on his penis (Charge 1 – gross indecency). She was naked and the accused made her kneel on the bed. He tried to insert his penis into her anus, and she told him to stop because it hurt (Charge 2 – incest).
[6]See Criminal Procedure Act 2009, s 182(2)(a).
[7]Footnotes omitted; emphasis added.
NA, having given evidence of regularly having to perform fellatio on her father, gave the following evidence-in-chief with respect to the circumstances of charge 2:[8]
[8]Emphasis added to this and passages following.
[PROSECUTOR]: What other type of sexual activity, if any, was there between you and your father?---Mostly it was – it was oral sex on my part. And once, um, he suggested that, um, we would have sex and that we would try it anally. Um, and that was the only other time.
Well, firstly, whereabouts were you when that conversation took place?---I don’t know where the conversation occurred. I don’t remember, but I remember the event occurred in my mother’s bedroom.
Yes, and approximately how old were you at that time or what year at school were you in?---I – I think, from memory, roughly, um, I was in my teens and maybe year 7 or year 8.
Would you, please, tell the jury exactly what happened? Firstly, what were you wearing?---I don’t remember what I was wearing. Um, I do recall that he would ask me to get naked, and I would get naked.
On this particular occasion, what happened in your mother’s bedroom?---I was asked to get naked. Um, we got Vaseline. I’m not sure where, from either the bedside table or from the bathroom, which was right next door. Um, I would manually masturbate him and then put Vaseline on his penis, and then he asked me to go on my hands and knees on the end of the bed while he was standing.
And what happened then?---He attempted to have sex with me.
Could you, please, be more specific? Exactly what did he attempt to do?---He attempted to put his penis in my bottom.
Would you, please, describe what your physical sensation was at that time?---It felt painful. So I asked him to stop.
And did he?---Yes.
NA’s evidence under cross-examination by defence counsel included the following:
So if we take one example, and that is the incident where you say that your father attempted to anally penetrate you, is that a memory that has always been with you or one that has surfaced later in time?---It has always been with me.
Okay. And has the detail in relation to that episode, has that detail always been with you or has it – has there been additional detail that’s returned to you over time. Sorry, that was a long question but do you understand?---It’s – it’s – I remember the act but I don’t particularly remember the detail around it.
…
I suggest to you that there was never an act of attempted anal penetration with your father. Do you agree or disagree?---I disagree.
In her final address to the jury, the prosecutor made the following submissions concerning the circumstances of charge 2:
I want to take your firstly to the first two charges. Charge 1 is a charge of indecent act with a child under 16 and the act alleged is requiring [NA] to place Vaseline on the accused man’s penis. Charge 2 is an allegation of incest and the allegation is anal penetration by the accused man’s penis. And she gave this description: she said, ‘Once he suggested we would have sex and that we would try it anally and that was the only other time. I was in my teens and maybe Year 7 or Year 8. I was asked to get naked, we got Vaseline, I’m not sure where. From either the bedside table or from the bathroom, which was right next door. I would manually masturbate him and then put Vaseline on his penis. And then he asked me to go on my hands and knees on the end of the bed while he was standing. He attempted to put his penis in my bottom. It felt painful, so I asked him to stop’.
Now, members of the jury, one of the elements or ingredients of the offence of incest is sexual penetration. And penetration, in this case penetration of the anus, means penetration to any extent. Now, clearly I should have asked the extra question, but I didn’t. I’m inviting you, members of the jury, to draw the inference, the conclusion based on her account that there was indeed penetration of her anus to some extent and that it was that which caused her pain.
Defence counsel made the following submissions in her final address:
Now, I want to go to a couple of the specific incidents. The attempted anal sex. So in relation to, and that relates to Charge 1 and 2. In relation to it, she has told you that she’s either 13 or 14 at the time. She can’t say year, month, day. It was apparently the only time something like that had happened. She cannot recall her reaction or anything that she might have said in response to what was happening. She can’t recall anything that he might have said. She couldn’t tell you how she ended up in the position that she was in, naked and on the bed.
It’s not even entirely clear on the evidence whether penetration actually happened or not …
At the close of evidence, in the course of discussion contemplated by s 11 of the Jury Directions Act 2015, defence counsel submitted with respect to charge 2 that ‘there’s an issue on the evidence as to whether penetration occurred’. The judge agreed, and said that she would ‘have to talk about the alternative of attempted penetration’. A little later, there was the following discussion:
HER HONOUR: Yes. Do I need to give – it doesn’t seem to me I need to give any direction on inferences in this case. It’s most unusual but it’s hardly a question of – I mean there’s nothing to be inferred it seems to me. Again, I’m asking counsel for submissions here and it seems to me the witnesses are saying this happened, and he’s saying, no, they didn’t. If counsel – if anything comes up I can easily put it in. It’s easily done but – and it’s most unusual. The only one I think there’s a possible inference, ‘It hurt’, but again - - -
[PROSECUTOR]: Well, Your Honour, that’s part of my argument in relation to the penetration on Charge 2 because there’s no other reason that it would hurt.
HER HONOUR: Well, perhaps that’s – yes, perhaps I will do it then.
In her charge, the judge gave directions on the drawing of inferences. And when addressing the issue of sexual penetration for the purposes of charge 2, she instructed the jury as follows:
Here, in relation to Charge 2, the prosecution says to you, it asks you to infer that there was penetration to a small extent, even though on the evidence, the accused man desisted. But the prosecution says you could safely infer that because it hurt, that to some extent the accused man’s penis entered her vagina [scil, anus]. It is a matter for you, ladies and gentlemen. That is the prosecution argument.
I also want to turn to Charge 2 again, because if you were not satisfied beyond reasonable doubt that the accused man had penetrated [NA’s] anus with his penis, that is not the end of the matter. What can happen sometimes in a trial, ladies and gentlemen, is that if a jury is not satisfied beyond reasonable doubt that an accused has committed a particular offence, they will be asked to then look at what is called an alternative charge.
And alternative charge is a charge based on the same facts alleged, but which lacks one of the elements. …
The judge then directed the jury concerning the elements of attempted incest as an alternative to charge 2.
In this Court, counsel for the appellant submitted with respect to charge 2 that there was no evidence of sexual penetration having occurred, and that an inference that sexual penetration had occurred was not available. It was not open to the jury to be satisfied beyond reasonable doubt that penetration was established, counsel submitted, given that NA’s evidence was that the appellant ‘attempted to have sex with [her]’, and ‘attempted to put his penis in [her] bottom’.[9] Indeed, NA agreed with the proposition put to her in cross-examination that ‘[her] father attempted to anally penetrate [her]’.[10] Counsel contended that NA’s description that the ‘physical sensation’ felt ‘painful’ could not establish that penetration of NA’s anus had occurred.
[9]See [7] above.
[10]See [8] above.
Accepting that it was not sufficient for NA’s anus simply to have been touched, and that it must have been penetrated to some extent — even if only ‘slightly or fleetingly’ — counsel for the respondent contended that the evidence did establish that the appellant’s penis had penetrated NA’s anus. Counsel argued that ‘[t]ouching the anus would not have been painful’, and that ‘[p]enetration, even slight penetration, is the cause of the pain experienced by the complainant’. There was, counsel contended, ‘no other reason why this act would have caused pain to the complainant’. Citing Mathis,[11] counsel for the respondent submitted that whether the evidence established beyond reasonable doubt that penetration occurred ‘cannot turn solely on the particular words [NA used] in response to a particular question’, the jury’s assessment of what was established necessarily being based on everything that NA said. Counsel for the respondent also sought to draw factual parallels between the complainant’s evidence in Scannell[12] and NA’s evidence.
[11]Mathis (a pseudonym) v The Queen [2014] VSCA 118, [19].
[12]Scannell v The Queen [2014] VSCA 330, [25]–[29].
By s 276(1)(a) of the Criminal Procedure Act 2009, ‘the Court of Appeal must allow [an] appeal against conviction if the appellant satisfies the court that … the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. In light of M[13] — recently endorsed in Pell[14] — the question this Court must ask itself is whether we consider it to have been open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant sexually penetrated NA.
[13]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[14]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In my opinion, it was not open to the jury to conclude that the pain of which NA spoke resulted from penetration of — as opposed to pressure on — her anus. Axiomatically, an accused person cannot fall to be convicted of a very serious offence — attracting a maximum penalty of 20 years’ imprisonment — based on inexact proofs, or upon a ‘leap of faith’ invited by the prosecution. Yet that, in my view, is what occurred in the present case. As the prosecutor acknowledged in her address to the jury, she ‘clearly … should have asked the extra question’ — that is, as to whether NA’s anus was penetrated — but did not.[15] It was not open to the jury to fill the gap left by the prosecution’s failure to adduce distinct evidence of a crucial element of the charged offence.
[15]See [9] above.
For these reasons, the conviction for incest on charge 2 cannot be permitted to stand. I would allow the appeal against conviction and set aside the conviction for incest on charge 2. Given that the jury must have been satisfied of facts that prove the appellant was guilty of attempted incest, I would substitute a conviction for that offence.
Substitution of the conviction for attempted incest would ordinarily result in the appellant being resentenced on that charge, and would trigger a reconsideration of the total effective sentence (produced by the orders for cumulation) and total effective sentence.[16] In oral submissions, however, counsel for the appellant submitted — somewhat remarkably, it might be thought — that, should the Court substitute a conviction for attempted incest, no different sentence should be imposed. I am thus absolved from the necessity of considering the sentence I would have been minded to impose had that submission not been made.
[16]See Criminal Procedure Act 2009, s 277(3). See also R v Gibb [1997] 2 VR 576; Ryan v The Queen (1982) 149 CLR 1; R v McL [1999] 1 VR 746; McL v The Queen (2000) 203 CLR 452; Pate (a pseudonym) v The Queen [2019] VSCA 170, [90].
SIFRIS JA:
I have read a draft of the reasons to be delivered by Priest JA, allowing the appeal against conviction on charge 2 (incest) and substituting a conviction for attempted incest. As noted by his Honour, counsel for the appellant submitted that in the event that the appeal was successful, no different sentence should be imposed.
I have the misfortune to disagree with his Honour. In my opinion the appeal should be dismissed.
I gratefully adopt his Honour’s summary of the relevant evidence, submissions, discussions, charge to the jury and the relevant procedural history.
In my opinion, based on the evidence of NA which was accepted, it was
reasonably open to the jury to find, beyond reasonable doubt, that the appellant penetrated NA and that charge 2 was made out. There was no evidence or available inference consistent with innocence. No other inference was reasonably open or suggested apart from a denial that there was any anal penetration, a position rejected by the jury. Rather, the challenge was to the sufficiency of the evidence in relation to penetration.
In my opinion, NA’s evidence that ‘It felt painful’, given the circumstances and context in which the conduct occurred, admits of no inference other than that penetration occurred. Any other inference would be pure speculation and without any factual foundation.
There is nothing in the cross-examination of NA, the final address of defence counsel or the judge’s charge that suggests that the pain may have derived from something other than penetration. Pain from touching or pressing, without any penetration at all, is not, in the circumstances of this case, a reasonable inference to draw. Even if it was raised, it was an inference that the jury was entitled to reject.
The jury had the substantial benefit of observing NA give evidence including rigorous cross-examination in which she disagreed with the proposition that there was never an act of anal penetration. Her disagreement to the proposition may, together with the other evidence, be viewed as a positive assertion of the fact, namely that it did take place. As pointed out below, NA’s use of the word ‘attempt’ does not detract from the force of the evidence.
NA may not have recalled the detail of the event or the conversations before and after, but she was adamant and unequivocal about recalling the event and the pain. She said ‘I remember the act but I don’t particularly remember the detail around it’. She was 13 or 14 years old. She said in cross-examination that ‘I’ve tried to forget but I couldn’t’ and ‘It has always been with me’.
The appellant accepted that it was open to the jury to accept NA’s evidence. The conviction was reasonably open on the whole of the evidence. I do not consider that there is any missing link. NA said this was the first and only time that sex was proposed and that she put Vaseline on the applicant’s penis. She said ‘It felt painful’.
When NA used the word ‘attempt’ — in the phrases ‘attempted to have sex with me’ and ‘attempted to put his penis in my bottom’ — she was not using the word in the legal sense of ‘fall short of the complete commission of that crime’,[17] in this case penetration. The word ‘attempt’ in the context of her evidence clearly embraced slight or fleeting penetration, falling short of full penetration. Such limited penetration establishes the legal element of sexual penetration required for the offence of incest, notwithstanding that in lay terms it might be considered an attempt, given the limited, fleeting or slight entry. It is relevant to note that defence counsel and the judge both used the word ‘attempt’ in this sense, namely that there was some but not full penetration.
[17]R v Donnelly [1970] NZLR 980, 990 (Turner J).
In Mathis (a pseudonym) v The Queen,[18] Maxwell ACJ said:
Plainly enough, the question of whether a particular allegation has been proved — or, more accurately, whether a jury can be satisfied beyond reasonable doubt that it has been proved — cannot turn solely on the particular words which a witness uses in response to a particular question. The jury’s assessment of what is established by a witness’s evidence will be based on everything said by the witness, both in examination-in-chief and in cross-examination, and on the manner and tone of the witness’s responses to questions.[19]
[18][2014] VSCA 118.
[19]Ibid [19].
The fact that, unlike what occurred in Scannell v The Queen,[20] the prosecutor did not ask ‘the extra question’ relating to penetration does not detract from the jury being entitled to draw reasonable inferences, as properly directed by the judge. Looking at the evidence as a whole, I do not consider that the failure to ask the additional question had the suggested consequence. As pointed out, the only reasonable inference was that some penetration took place.
[20][2014] VSCA 330.
I would dismiss the appeal.
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