Boulattouf v R

[2007] NSWCCA 102

Appeal Outcome: Special leave application refused by the High Court - 31 August 2007

New South Wales

Court of Criminal Appeal

CITATION:	Anthony Boulattouf v Regina [2007] NSWCCA 102 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 March 2007
JUDGMENT DATE:	12 April 2007
JUDGMENT OF:	Simpson J at 1; Barr J at 1; Howie J at 1
DECISION:	The appeal against the conviction is dismissed. Leave is granted to appeal against the sentence but the appeal is dismissed.
CATCHWORDS:	Criminal law - whether a direction inviting the jury to consider whether the complainant had a motive to lie and whether she and her mother had a motive to conspire to lie was capable of correction - whether direction effectively corrected. Criminal law - whether verdicts inconsistent
LEGISLATION CITED:	Evidence (Children) Act 1997
CASES CITED:	McKinney v The Queen (1991) 171 CLR 468 R v Lansdell, Court of Criminal Appeal, New South Wales, 22 May 1995 R v Jovanovic (1997) 42 NSWLR 520 R v Fuge (2001) 123 A Crim R 310 R v Smith [2000] NSWCCA 468 R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991, unreported Gilbert v The Queen [2007] HCA 15 Palmer v The Queen (1998) 193 CLR 1
PARTIES:	Anthony Boulattouf, Regina
FILE NUMBER(S):	CCA 2007/0008
COUNSEL:	R Herps P Hamill SC
SOLICITORS:	S Kavanagh Nyman Gibson Stewart
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1128
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ

2007/0008

SIMPSON J
BARR J
HOWIE J

12 APRIL 2007

ANTHONY BOULATTOUF v REGINA

JUDGMENT

1 THE COURT: On 9 December 2005, following a trial that commenced on 5 December, the appellant was convicted by a jury of a single count of aggravated indecent assault. On 3 February 2006 Geraghty DCJ sentenced him to imprisonment with a non-parole period of 21 months, commencing on the day it was imposed, and a balance of term of seven months.

2 The appellant now appeals against the conviction and seeks leave to appeal against the sentence.

3 The count on which the appellant was convicted was the second of three on the indictment. The first, to which it was an alternative, was of sexual intercourse with a child under ten years. The jury returned a verdict of not guilty on this count and thus proceeded to the second, alternative, count. Both of these counts alleged offences said to have been committed on 15 April 2004. The third count was of aggravated indecent assault, alleged to have been committed between 14 February 2004 and 15 April 2004. At the direction of the trial judge, the jury returned a verdict of not guilty to this count.

4 What follows is an account of the facts and circumstances alleged by the Crown. It should not be taken to represent any concluded findings of fact.

5 The appellant was the proprietor of a domestic renovation business. In April 2004, with the assistance of two employees, he was working on the renovation of an apartment owned by the complainant’s mother, to whom we will refer (in order to preserve the complainant’s anonymity) as SA.

6 SA, the complainant (then aged seven and a half years), and complainant’s 19 year-old brother, CA, were all temporarily living in the apartment. The complainant and SA shared one bedroom; the second was occupied by CA.

7 On 15 April 2004 SA was unwell and spent the day in bed, in the room ordinarily occupied by CA. It was school holidays. Having arisen early, the complainant became tired and lay down on her mother’s bed and fell asleep. Later, she was in the living room. The appellant gave instructions to his employees, and then led the complainant into her mother’s bedroom. He said he was going to make her feel better, because she felt ill. He said he would give her a massage. The two entered the bedroom. The appellant closed the door. He asked where the complainant was in pain and she pointed to her stomach. The appellant told her that he was a doctor.

8 The complainant lay on the bed. The appellant patted her on the stomach, asking if it hurt. The appellant put his hand under her clothing, and touched her on the vagina. He inserted “about two” fingers, and “fiddled around” with her vagina.

9 The complainant jumped up from the bed and terminated the encounter, saying that she thought that that was enough. The appellant accepted that.

10 The complainant immediately went to her brother’s room, where her mother was in the bed. She told her mother what had happened. CA entered the room shortly after. The complainant told him the same as she had told her mother. CA expressed the view that it was “really wrong” and that SA should report the matter to police.

11 SA did so, and police arrived at the apartment at about 6.15 pm. By this time the appellant and his employees had left for the day. Senior Constable Maclay asked the complainant what had happened. She said -

Tony took me into the bedroom and played with my private parts.

12 A Detective Brazel arrived, and telephoned Dr Mark Johnston, a medical practitioner at the Child Protection Unit at the Sydney Children’s Hospital. In answer to a question whether her vagina was sore the complainant answered affirmatively; when asked to describe how it felt, she said -

Really really sore.

She said that it had hurt when she went to the toilet after the incident.

13 The complainant was taken to the Sydney Children’s Hospital where Dr Johnston took a history, and then examined her. He reported -

When speaking about the events of today, [the complainant] said she was taken to the bedroom by the male offender and told to lie down.

He recorded that the complainant said that the appellant had told her he was a doctor. Using the complainant’s words, Dr Johnstone recorded that the appellant had -

… put his finger inside me.

14 On examination Dr Johnston found -

… no evidence of bruising, abrasion or laceration on the labia, on the fourchette or the vestibule … the hymen was well seen. There was no evidence of any recent injury to the hymen. Examination of the anal area was normal.

15 In short, there were no abnormal findings.

16 On 16 April 2004 the appellant was arrested by police and subsequently interviewed. On arrest he was told of the nature of the offence in respect of which he had been arrested, and cautioned. He said -

I not touch anyone.

17 He initially declined to accompany police, saying he had a business to run. He was, however, conveyed to the Burwood Police Station. En route to the police station he said -

She was sick. I got some lemonade and I felt her stomach. I did not do anything wrong.

He was again advised of his right to silence, and of the allegation. He spoke to his solicitor. He was then asked if he was prepared to be interviewed and he replied -

Yeah, sure, I’ve not done anything.

18 In an electronically recorded interview he confirmed his denial while travelling to the police station, and confirmed that he had agreed that he had touched the complainant’s stomach because she was feeling sick. He said that after having had the lemonade the complainant said she felt much better. He said that she then -

Started lying in the room, like little kid, jumping on me, lying.

He said that she cuddled him and ran to him and that he couldn’t “ push her away, she’s a little innocent baby ”.

19 When given an opportunity to comment on the specific allegation the appellant said -

No way. I’d cut my hand if I’d done that. No way … I never done nothing, what is there to say.

He denied ever having told the complainant or any member of her family that he was a doctor, saying -

I am not a doctor, how I can tell I’m a doctor.

He repeated that the complainant used to run and jump on him, and talk to him, and played like a little girl.

20 He gave an account of his movements on a day that he remembered that SA had been sick in bed. He denied that on that day he had ever pressed the complainant’s stomach and denied that he ever put his hands inside her pants.

21 At the conclusion of the Crown case the Crown conceded that, on 4 March 2005, while watching the video of her interview with a solicitor of the Office of the Director of Public Prosecutions, the complainant had said -

He didn’t really call me. He grabbed my arm and then he – and then he said ‘come on’.

22 At another point a little further in the video, the complainant stated -

It [meaning the bedroom door] was also locked. He locked it so I couldn’t get out.

23 She also said that she had been upset and frightened because, while they were in the bedroom, the appellant had told her not to tell anybody. She said that she was trying to get out of the room.

24 Presumably, these concessions were made because they involved matters of detail which the complainant had not mentioned in her initial interview.

25 In this respect it is of some significance that the evidence of the complainant was given, pursuant to s14 of the Evidence (Children) Act 1997, by playing a video recording of an interview of her by police. This occurred the day after the date of the allegations, 16 April 2004, at about 1.15 pm.

26 The appellant did not give evidence in the trial. He relied upon his denials to police and called evidence of good character.

The appeal

27 Four grounds of appeal were pleaded and argued, of which the first three all concerned a direction given to the jury by the trial judge. These grounds were framed as follows:

Ground 1 The learned trial judge erred in law in inviting the jury to consider whether there was a conspiracy between the complainant and her mother and whether there was any established motive between the complainant and/or her mother to lie.
Ground 2 The learned trial judge erred in declining to discharge the jury on the application of defence counsel following the directions which are subject of Ground 1.
Ground 3 The trial miscarried due to the inadequacy of the redirection to redress the prejudice to the fairness of the trial which had been caused by remarks of the learned trial judge.

28 At a point about half way through a relatively short summing up, the trial judge directed the jury as follows -

Well, can I say, you must realise, common sense tells us, does it not, that everyone’s memory is fallible, faulty, and some people’s memories are more faulty that others. Some people have good memories and some have bad, to state the bleeding obvious. As time passes, memories can fail as to some details. Events happen very quickly when they unfold, particularly dramatic events, and no, we do not have a video recording – you heard the Crown saying that, nothing is recorded, we have only our memory to rely on as to what happens. So she said she was ‘really really really really upset’. Well, what does that mean? Do you, because of all these inconsistencies, conclude that [the complainant] is lying and unable to maintain her narrative? Or do you regard it as just normal, that there are always some inconsistencies? Is [the complainant] and her mother conspiring to make up a story, and if so why? Are they unable to maintain the story they have agreed upon? Whatever happens to us, whatever happens, we never get the details exactly right. There is always some variation. And does that consideration, when placed in this context, result in you feeling uncomfortable or are you uncomfortable. Now ‘comfortable’ or ‘uncomfortable’ is not the test. The test is whether you have a reasonable doubt. No the test is whether you are satisfied beyond reasonable doubt that the elements of the offences are proven.

29 Counsel for the appellant protested, and sought a discharge of the jury. As a result, his Honour gave the jury this further direction -

Now, there is an important matter I need to correct. That is what we have been discussing here while you have been waiting. I need to correct something I said to you before lunch. It was wrong, and if you attend to it you could fall into error. Therefore you must pay attention to what I say now in order that this matter be corrected. I said to you, when I was talking about inconsistency and the obscurities of various versions and so forth, I said to you, what were you going to make of it? I talked about memory and about how memory is fallible and so forth, and then I said in that context that [the complainant] and her mother, you may think, conspired to make up a story but were unable to maintain it. Remember me saying that? You are to ignore that, completely, please, for this reason. It has never been suggested by the accused, or by his counsel, that there was any motive for lying. It has never being (sic) suggested that the mother and the daughter made up lies together – that has not been something that has even been considered, so you must not speculate on that basis, nor must you guess about that. It is not a consideration that you should engage in. It is an impermissible thought process for you to go down that path because if you do go down that path, it tends to reverse the onus. The onus is always on the Crown, and if you go down that path, you might think that unless Mr Boulattouf has persuaded you that there was a motive for lie (sic), unless he has persuaded you that, then you will accept the complainant’s evidence. You must not think in that way. It has never been suggested. There is no onus on him and so I would like you, I direct you, to put that matter completely out of your mind. It was a question I should not have posed to you, and it is one that I direct you to ignore.

30 As at trial, both sides approached the appeal on the understanding that what the judge said initially was a misdirection. It is well established that such a direction ought not to be made because it is apt to lead a jury to believe that the burden of disproving such conclusions lies on the accused: McKinney v The Queen (1991) 171 CLR 468.

31 As at trial, the two sides disagreed whether the misdirection was incapable of correction so that the only solution was a discharge of the jury. Counsel for the appellant submitted on appeal that the invitation to reason about whether the complainant might have lied and whether she and her mother might have had any motive to conspire to lie must so have impressed itself on the minds of the jury as to be impossible to remove. It was not simply that the redirection was inadequate; no adequate redirection could possibly have been given.

32 In R v Lansdell, a judgment of this Court given on 22 May 1995, Simpson J said this at 7 -

The system necessarily places a great deal of faith in the ability of a jury to accept, and follow, the directions of a trial judge, even in circumstances where it might appear to the jury that they are asked to act against the dictates of common sense. Equally, however, the system recognises that there are bounds beyond which a jury cannot be expected, or asked, to go. For this reason, the criminal appeal courts have developed the notion encapsulated in the commonly used phrase "no direction to the jury could have cured the damage ....." Implicit in this notion is the recognition that there are occasions when the legal system accepts that a jury will not, or cannot be expected to, comply with the directions of a trial judge.

33 Although counsel referred to a number of cases which have dealt with a direction like the one now complained of or with a comment to the same effect, for example R v Jovanovic (1997) 42 NSWLR 520; R v Fuge (2001) 123 A Crim R 310 and R v Smith [2000] NSWCCA 468, none suggests that such a direction cannot be effectively withdrawn. The argument really was that the intractability of the problem was self-evident.

34 We do not regard the misdirection as falling into that category of cases in which the jury cannot be expected to comply with a direction to put the offending matter out of their minds. In our opinion the trial judge was entitled to refuse to discharge the jury. As a consequence, he was obliged to give such further direction as was necessary to ensure that they should not resort to the impermissible process of reasoning. In doing so, his Honour was entitled to expect that the jury would follow the further direction and put the original one out of their minds: R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991, unreported; R v Lansdell. See also the remarks of McHugh J in Gilbert v The Queen [2007] HCA 15 at [31] – [32].

35 The alternative case on appeal, the third ground, was that the redirection was insufficient to cure the ill. Counsel for the appellant submitted that the redirection did not make the point that people lie for all sorts of reasons and that sometimes those reasons are not discovered. Reference was made to the judgment of Sperling J in Jovanovic at 542. Then it was submitted that the redirection was unclear, that it inevitably reiterated that the appellant had not adduced evidence why the complainant had made her complaint and that it did not explain that the complainant’s account gained no legitimate credibility from the absence of evidence of motive. Reference was made to Palmer v The Queen (1998) 193 CLR 1 at 9.

36 We reject the submission that the redirection was unclear. His Honour first told the jury that he was about to correct something he had said, then that they could fall into error if they attended to it, then that they needed to pay attention. His Honour reminded the jury of the subject-matter and told them plainly that they were to ignore completely what he had said. Then he explained why that was so, that such a process of reasoning was impermissible because it tended to reverse the onus of proof. Then his Honour explained what that expression meant and reminded the jury that the onus of proof lay always on the Crown. His Honour concluded by repeating that there was no onus of proof on the accused and that they should put completely out of their minds what he had previously said.

37 In our opinion no disadvantage accrued to the appellant by the reminder that he had not suggested that the complainant had any motive to lie. We reject the submission that “the redirection inevitably reiterated that the appellant did not (and presumably therefore could not) place before the Court any evidence as to why the complainant made the complaint against him”. The redirection did no such thing. It did not mention any lack of evidence. It dealt only with the absence of any suggestion that there was a motive for lying or conspiring.

38 It is correct to say that his Honour did not in terms tell the jury either that “people lie for all sorts of reasons and that sometimes those reasons are not discovered” or that the “complainant’s account gained no legitimate credibility from the absence of evidence of motive”, but there is no general requirement for a trial judge to do so and his Honour was not asked to redirect in those words.

39 The progress of the matter after the redirection suggests that the jury were not troubled about the relevant part of the evidence. They asked a number of questions about the evidence of a number of witnesses, none of whom, apparently, was the complainant or her mother.

40 It seems to us that the redirection was apt to remove from the minds of the jury any thought of reasoning by considering whether the complainant or her mother had any motive to lie or conspire. Nothing that happened afterwards suggests that the jury did not heed the redirection. We reject the first, second and third grounds of appeal.

41 The fourth ground of appeal is as follows -

Ground 4 The verdict of guilty in relation to count 2 is unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty in relation to counts 1 and 2 or otherwise represents a miscarriage of justice.

42 The second reference in this ground to count 2 was apparently made in error. The substance of the ground is an asserted inconsistency between the acquittal on the first count and the conviction on the second. The argument runs this way. The Crown case on the first and second counts depended entirely on the evidence of the complainant. The first count charged penile penetration of the vagina and the second an indecent assault constituted by a touching of the vagina with the fingers. The only relevant distinction between them was penetration, which was a requisite of the first count but not of the second. The unequivocal evidence of the complainant was of penetration. The jury had a reasonable doubt about that and acquitted the appellant on the first count. Yet they convicted him on the second. Since the jury had a reasonable doubt about penetration, and the complainant described no touching other than a touching during the act of penetration, they were bound also to have a reasonable doubt about the indecent touching. The verdicts were inconsistent.

43 It is not usual for the Crown to charge an assault alternatively to a count depending on penetration unless there is some doubt in the mind of the prosecutor whether the anticipated evidence will be sufficient to make out the principal charge. The reason for the Crown’s caution seems to have been the anticipated evidence of Senior Constable Maclay about what the complainant had told her and extracted above. The complainant did not mention penetration to Constable Maclay.

44 The Crown Prosecutor opened to the jury on the conversation with Constable Maclay. In introducing the counts to the jury the Crown Prosecutor explained that the first involved sexual intercourse by digital penetration and that the second was an alternative count. The Crown put it that if the jury were not satisfied beyond reasonable doubt that there was actual penetration of the vagina they could consider the alternative charge of indecent assault.

45 Constable Maclay gave evidence as anticipated. There was nothing equivocal, however, about the complainant’s evidence of the event. The principal part of her evidence in chief was adduced by the playing of a videotape of an interview she had had with investigating police officers on 14 July 2004, two days after the events. There were these questions and answers -

Q 262 … What did Tony do?
A He touched my private part.
…

Q271 …So you said he touched you on, on your private part. How did he touch you on the private part?
A He put his hand under my clothes and then he touched it.

Q272 He put his hand under your clothes and he touched it.
A And he put it inside it.

Q273 He put it in, sorry?
A He put it inside it.
Q274 O.K. What, he put it inside what?
A My private part. He put his fingers inside it and fiddled around with it.
…
Q278 O.K. O.K. When you, when you said that he puts his hand
under your, under your pants whereabouts, whereabouts were you? Were you lying, were you sitting or standing?
A I, I was lying on the bed.
…

Q307 O.K. And then what happened when he put his hand, what
happened when he put his hand under your underpants?
A Then he started touching my private part with his fingers.

Q308 O.K. How, how do you know, how do you know it was his
fingers?
A Because I could feel them.
…
Q314 Before you jumped up and you said he put his finger
inside your private part what did he do, what did he do
with his fingers inside your private part?
A Moved it around.

…
Q316 Do you know how many fingers he, he used?
A About two.

46 It was put to the complainant in cross-examination that the events did not happen. She was adamant that they did.

47 When the Crown Prosecutor gave her closing address there was no mention of the alternative charge. Having dealt with what she anticipated would be put to the jury as inconsistencies in the evidence of the complainant, the Crown Prosecutor pointed out that they were all peripheral to the main event – matters such as whether the complainant’s mother was making beds or whether she was having coffee or whether she was up at all, being ill. The central submission was that there were no inconsistencies in the complainant’s evidence about the event the subject of the first count. The Crown Prosecutor told the jury that they could “safely convict”, and plainly the reference was to the first count, not the second.

48 As expected, defence counsel drew attention to a host of what were said to be inconsistencies in the evidence of the complainant, but none of them was put forward as raising a reasonable doubt about penetration rather than indecent assault. The submission was that the jury would have a reasonable doubt about whether anything of a sexual nature had taken place.

49 His Honour summed up. Having enumerated the elements of the first count his Honour told the jury that if they were not satisfied of that, there was an alternative account. Later on his Honour returned to the subject and said this -

Now, the first charge is one of sexual intercourse.
…

…sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part the body of another person. That is how it is defined. So it is not just what we might consider to be penile penetration, but digital penetration also fills the definition, so that if you find that you can be satisfied beyond reasonable doubt when (the complainant) tells you that on this occasion the accused put his finger in her vagina and moved it around, then that fully constitutes the definition of "sexual intercourse".

As to the question of "indecent assault" in the alternative, the accused has been charged with assaulting (the complainant) and at the same time committing an act of indecency. I have spoken to you of what an act of indecency is.
…
Touching the genitalia has been considered by the law as an act of indecency, so that if you accept what (the complainant) tells you happened, then it would in law constitute an act of decency, if you need to go to the alternative count.

50 Of course, what his Honour could not do was refer to the respective cases on the circumstances in which the jury might acquit on the first count and convict on the second. That was a topic neither counsel had dealt with.

51 The jury asked a number of questions after retiring. In the first place they dealt with evidentiary matters. Later on they asked this question -

Can we please get clarification on what an act of indecency is by law?

52 His Honour responded with a reiterated and somewhat expanded version of what he had already said. It is unexceptionable and we do not need to deal with the content of it. As before, however, there was no reference to the circumstances in which, on the case put forward by either side, the jury might have a doubt about the first count but not the second.

53 The jury were asked to retire again and the debate continued. In the course of it the Crown said this -

CROWN PROSECUTOR: So they do not have to find an assault and then find a separate act of indecency and the case is, the Crown case is that they consider the alternative verdict only if they are not satisfied beyond reasonable doubt that penetration of her vagina occurred, and the indecent act is the touching of the genitalia region…

54 His Honour recalled the jury and continued as follows -

The Crown relies on exactly the same act to constitute the assault and the indecent act. If you are satisfied beyond reasonable doubt that the accused digitally penetrated the vagina of the victim, then you will find him "guilty". If you are not satisfied that he digitally penetrated her vagina you will find him "not guilty" on that count. You will move onto the next count then. If you are satisfied that he touched her vagina, that would constitute an act of indecency, and you will find him "guilty" on that alternative count. If you find that he did not touch her vagina, then you will find him "not guilty" on that account.
…
If you are satisfied beyond reasonable doubt that he penetrated, with his finger, the vagina of the victim - "guilty". If not satisfied about that, beyond reasonable doubt - "not guilty". Then you will move to the next. Are you satisfied that he touched her on 15 April on the vagina? That would constitute an act of indecency, so if you are satisfied beyond reasonable doubt about that, you would find him "guilty". If you are not satisfied about that, then you will find him "not guilty" on that count also.

55 There is an initial attractiveness about the appellant’s assertion that the verdicts were inconsistent. However, they must be seen in the light of the way the trial was conducted. The Crown Prosecutor had an initial concern about the quality of the evidence that led her to include the alternative count in the Indictment. Whether that was justified needs no examination here. But the trial thereafter was not conducted by the Crown or the defence on any basis that would entitle the jury to distinguish between the two counts. Putting it in our own words, either the jury would be satisfied beyond reasonable doubt that there was a sexual event or they would not. The elements of the two counts were correctly explained. The jury were told that the counts were charged in the alternative, but they were never told how to distinguish between the two, on what evidence or on what argument. That was not done because it could not be done.

56 It seems to us that once the trial advanced past the stage of the evidence and the arguments on it, the second count really had no part to play. The jury were simply left with the evidence of the complainant, whom they obviously believed, and a simple choice between alternatives. Uninstructed about how to exercise that choice, they must have regarded themselves as entitled to convict on either the first or the second count. They had reason to have some sympathy for the appellant. He raised his good character. He called evidence from people who were prepared to entrust young children to his care and did not consider him a danger.

57 In our opinion the most probable explanation for the result is that the jury considered themselves entitled to deal mercifully with the appellant and convict him of the lesser rather than the greater offence and that that is what happened. This ground of appeal has not been made good.

58 The appellant also seeks leave to appeal against the sentence, though his application may be no more than a formality. No submissions were made to suggest that the sentence fell above the proper range of discretion of the trial judge or that it was otherwise infected with error. The maximum penalty was imprisonment for ten years. The standard non-parole period was five years. A sentence of twenty-eight months, comprising a non-parole period of twenty-one months and a balance of term of seven months seems to us unremarkable in the circumstances.

59 We make the following orders -

1. The appeal against the conviction is dismissed.
2. Leave is granted to appeal against the sentence but the appeal is dismissed.
************

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