BSJ v The Queen
[2012] VSCA 93
•17 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0206 |
| B S J |
| v |
| THE QUEEN |
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JUDGES: | MAXWELL P, BUCHANAN and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 16 February 2012 | |
DATE OF JUDGMENT: | 17 May 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 93 | |
JUDGMENT APPEALED FROM: | DPP (Vic) v [B S J] (Unreported, County Court of Victoria, Judge Lacava, 4 June 2010) | |
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CRIMINAL LAW – Appeal – Conviction – Incest – Coincidence evidence – Possibility of concoction relevant to assessment of probative value – No real possibility of concoction – Coincidence evidence – Cross-admissibility limited to similar evidence.
CRIMINAL LAW – Appeal – Sentence – Incest – Same sentence for different counts.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Victoria Legal Aid |
| For the Crown | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BUCHANAN JA
HANSEN JA:
After a trial in the County Court the appellant was found guilty on four counts of incest, three counts of attempted incest, two counts of indecent assault and one count of an indecent act with a child under the age of 16.
A plea was conducted and the appellant was sentenced to be imprisoned for a term of 5 years on each of the counts of incest, for a term of 3 years on each of the counts of attempted incest, for a term of 6 months on each of the counts of indecent assault and for a term of 1 year on the count of an indecent act with a child under the age of 16.
A single judge of this Court refused the appellant leave to appeal against conviction but granted him leave to appeal against sentence. The appellant has elected to have his application for leave to appeal against conviction determined by the Court of Appeal. For reasons which follow, we would refuse leave to appeal against conviction and dismiss the appeal against sentence.
Circumstances of the offences
The offences were alleged to have been committed against four stepdaughters of the appellant between December 2000 and April 2008, when the appellant was aged between 43 and 51 years.
Counts 1, 2 and 4 were alleged to have been committed against VLV. When VLV was aged 13 or 14 years, she bathed with the appellant. The appellant pulled VLV towards him so that VLV straddled the appellant. He penetrated VLV with his erect penis. VLV asked him to stop but the appellant persisted saying, ‘It will be fine.’ (Count 1.)
When VLV was aged 14 years, the appellant got in to the bath with her. The appellant manoeuvred VLV on top of himself so that she straddled him. The appellant’s penis touched the outside of her vagina. Another stepdaughter entered the bathroom and the appellant pretended to be washing VLV’s back. (Count 2.)
When VLV was aged 17 years, she shared a bedroom with RMV, another stepdaughter. The girls slept in bunk beds, VLV in the top bunk and RMV in the bottom bunk. The appellant entered VLV’s bed, undid the zip of his pants and pulled down VLV’s pyjama pants. The appellant inserted his penis into VLV’s vagina. The penetration lasted for some minutes, while VLV lay still. (Count 4.)
Counts 5, 6 and 8 were alleged to have been committed against AAV. When AAV was aged 19 years, she lived in a unit in Seaford. The appellant stayed in the unit after umpiring a local football match. The appellant insisted on sleeping in the same bed as AAV, despite her protests. He put his hand down the front of AAV’s pyjamas and penetrated her vagina with his fingers. He moved his fingers in and out and around, telling AAV that he was going to make her come. (Count 5.)
In late 2007, AAV was aged 21. She visited her mother and the appellant with her then boyfriend. The appellant gave the boyfriend a massage at his request. The boyfriend went to take a shower and the appellant told AAV he was going to massage her. The appellant touched AAV’s breasts and attempted to insert his fingers in her vagina. AAV protested and continued her protests until her boyfriend returned. (Count 6.)
When AAV was aged 22 years, she attended at the home of her mother to do some cleaning. While AAV was cleaning dishes at the sink, the appellant touched her breasts and vaginal area over her clothing. He also tried to kiss AAV on the lips, saying, ‘I’m your dad, don’t you love me?’ and ‘You owe me one.’ (Count 8.)
Counts 9, 10 and 11 were alleged to have been committed against RMV. When RMV was aged approximately 12 years, she showered with the appellant. The appellant made RMV touch his penis. (Count 9.)
When RMV was approximately 17 years of age, the appellant entered her bedroom and penetrated her vagina with his fingers. (Count 10.)
Immediately following the incident constituting count 10, the appellant said to RMV: ‘Do you want to try?’ RMV said, ‘No’. The appellant then got on top of RMV and attempted to put his erect penis into her vagina. (Count 11.)
Count 12 was alleged to have been committed against KMM. When KMM was aged 23, at an 18th birthday party for VLV, the appellant grabbed at KMM’s breasts and said, ‘You’ve got high beams on tonight,’ or words to like effect.
Coincidence evidence: considering the possibility of concoction
The first ground of the application for leave to appeal against conviction is that ‘the learned trial judge erred in admitting coincidence evidence as it did not have significant probative value.’
The trial judge ruled that the evidence of each complainant was cross-admissible. The appellant contends that his Honour erred in holding that there was no real possibility of concoction and in holding that the similarities between the allegations made by the complainants was sufficient to justify the evidence being cross-admissible as coincidence evidence.
The threshold submission for the Crown was that the possibility of concoction was not relevant to the assessment of probative value within the meaning of ss 97(1)(b) and 98(1)(b) of the Evidence Act 2008. Senior counsel acknowledged that this submission was directly contrary to the decision of this Court in P N J v Director of Public Prosecutions.[1] There the Court followed the New South Wales Court of Criminal Appeal decision in A E v The Queen,[2] holding that it was:
not only appropriate but necessary for a judge to consider whether, on the material before the court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide. If necessary, a voir dire can be conducted, in order to assess whether the claim of contamination is well founded.[3]
[1](2010) 27 VR 146 (‘P N J’).
[2][2008] NSWCCA 52, [44] (‘A E’).
[3]P N J (2010) 27 VR 146, 153 [28].
In the present case, senior counsel for the Crown submitted that the Court should not follow the decision in P N J. In a helpful written submission, counsel pointed out that the general rule which has been adopted in New South Wales is that the trial judge’s determination of ‘probative value’ for the purposes of ss 97 and 98[4] should proceed on the assumption that the evidence will be accepted by the jury. Issues of reliability and credibility are matters for the jury, to be decided in the light of all of the evidence.[5]
[4]And other provisions of the Evidence Act 2008.
[5]See R v Shamouil [2006] 66 NSWLR 228, 235–238 (‘Shamouil’); R v Mundine (2008) 182 A Crim R 302, 308–9. See also J L S v The Queen [2010] VSCA 209, [26]; P G v The Queen [2010] VSCA 289, [62], [76]–[77]; K R I v The Queen (2011) 207 A Crim R 552, 562–3 [53]–[55] (‘K R I’).
It has been held, however, that there are exceptions to the general rule. The leading New South Wales decision is Shamouil, where Spigelman CJ acknowledged that there would be circumstances
where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.[6]
In P G v The Queen,[7] Nettle JA (with whom Neave and Harper JJA agreed) expressed the point this way:
The assessment of reliability is predominantly a question for the jury, except in cases where the circumstances are such that the issues of credit and reliability are so fraught that it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.
[6][2006] 66 NSWLR 228, 237 [63]; K R I (2011) 207 A Crim R 552, 562–3 [54].
[7][2010] VSCA 289, [62].
Senior counsel for the Crown submitted that this general rule should be applied with equal force to the issue of possible concoction as between multiple complainants. For the purposes of the judge’s decision on admissibility, he contended, that possibility should be ignored.
The decision in P N J must, of course, be followed unless we were persuaded that it was ‘clearly wrong’.[8] We are not so persuaded. Assuming for present purposes that there is such a general rule – and that is a question currently reserved before a five-member bench of this Court – we consider that the issue of concoction is properly viewed as an exception to that rule. Deciding whether there is a ‘real chance’ that concoction has occurred will ordinarily not involve any assessment of the reliability or credibility of individual witnesses. Rather, it entails a fact-finding exercise, in which the judge will consider what the objective record shows about matters such as relationship, opportunity and motive.[9] These are matters which can properly be assessed by a judge, without usurping the function of the jury.[10]
[8]R v B D X (2009) 24 VR 288, 309–314 [125]–[152].
[9]R v O G D (No 2) (2000) 50 NSWLR 433, 445–6 [70], 454 [112].
[10]Hoch v The Queen (1988) 165 CLR 292, 302–3 (‘Hoch’).
The probative value of coincidence and tendency evidence lies in the improbability of the complainants’ having concocted similar lies. As the High Court explained in Hoch,[11] that probative value is destroyed if it appears that the evidence may in fact have been concocted. It is therefore an issue which is properly addressed when the judge is determining the admissibility of the evidence.
[11]Ibid 296.
Was there a real possibility of concoction?
Counsel for the appellant submitted that there was a real possibility of concoction. The four complainants were sisters. It was said that KMM, VLV and RMV had a motive to concoct the allegations they made in order to support AAV, who went to the police and made a formal statement. Each of KMM, VLV and RMV knew when they made their statements that AAV had complained to the police.
In 1999, AAV had made a complaint to the police that she was sexually abused by the appellant. On that occasion the other complainants did not support her and AAV retracted her complaint, saying that it was untrue.
Counsel submitted that it was not determinative of the question whether there had been concoction that KMM, VLV and ALV denied at the committal hearing that they had conspired to give false evidence. Further, it was said, the trial judge wrongly proceeded on the basis that RMV had denied at the committal hearing that she was involved in joint concoction, for the issue was not explored with her then.
Counsel for the appellant relied upon the decision of the New South Wales Court of Criminal Appeal in A E.[12] There, the trial judge had found that there was no possibility of joint concoction by two sisters, who made similar allegations of sexual misconduct by the accused. The Court of Appeal held that the trial judge erred. The Court said:
The complainants were sisters and were in contact with one another at the time each made her complaint.[13]
[12][2008] NSWCCA 52.
[13]Ibid [44].
Counsel for the respondent submitted that the prosecution had excluded any real possibility of concoction. We think that contention is correct. It was not put to any of the four complainants at the committal that there was any motive to concoct an allegation that the appellant had sexually abused any of them. There was no evidentiary foundation in the depositions for the proposition that any of the complainants had any reason or motive to concoct their allegations. Further, there was nothing in their contact with each other to suggest any such reason or motive. While a denial by a complainant of concoction of an allegation is not necessarily decisive, in the present case counsel for the appellant at trial did not seek to cross-examine any of the complainants on the voir dire with a view to establish that there was a real risk of concoction and, although counsel cross-examined the complainants at the trial as to the question of concoction, he did not raise again the question of cross-admissibility.
We do not consider that A E lays down a general rule that the possibility of concoction exists where the complainants are sisters who are in contact with each other when complaint has been made. The decision depended upon its own facts. In the present case, the trial judge conducted an inquiry into the possibility of concoction and was satisfied by an examination of the evidence of each of the complainants that the possibility had been excluded. Each complainant knew of complaints by her sister, but his Honour was satisfied that ‘they were not apprised of the detail of the complaints, nor did they discuss the detail of their evidence or read each others statements’. We can perceive no error in the trial judge’s approach or his conclusion.
One final point should be made. In contradistinction to the position on an interlocutory appeal, the Court on a conviction appeal is able to consider the course of the trial, and in particular the evidence given by the complainants, in examining the correctness of the decision to admit the (coincidence or tendency) evidence. As in R v Demirok,[14] the Court might be satisfied that the decision was correct at the time it was made but conclude nevertheless that the course of events at trial had given rise to a substantial miscarriage of justice.[15] In the present case, however, the evidence which the complainants gave at trial served only to confirm the correctness of the judge’s decision. The appellant’s trial counsel made no submission to the contrary.
[14][1976] VR 244, 255–6.
[15]See also Criminal Procedure Act 2009 (Vic) s 276(1).
Coincidence evidence: similarities
Apart from the question of concoction, counsel for the appellant submitted that the trial judge erred in concluding that there were sufficient similarities in the allegations of the complainants to render their evidence cross-admissible as coincidence evidence.
Counsel closely analysed the evidence of the complainants and pointed to differences in the evidence of particular complainants. For example, KMM’s allegation of indecent assault was quite different from the account given by VLV of indecent assaults upon her. Again, it was said that there was no relevant similarity between the allegations of AAV on one hand and the allegations of VLV and RMV on the other hand. Each of the charged acts concerning AAV was alleged to have occurred when she was at least 19 years old and living away from the family home. One of the incidents alleged occurred at her own home when the appellant slept there overnight. That stood in marked contrast to the allegations of VLV and RMV, who were both living under the appellant’s roof at the relevant times. Both referred to incidents when bathing or showering when they were aged between 12 and 14 years and both referred to the appellant getting into their beds at night when they were 17 or 18 years of age and penetrating, or attempting to penetrate, their vaginas.
We do not accept this contention. The trial judge did not invite the jury to consider all the complainants’ evidence together, but rather to evaluate particular evidence from one complainant only in relation to like evidence from another complainant. He said:
Another way in which you may use the evidence, if you find the evidence proven, beyond reasonable doubt, is if you find there are similarities in the evidence, such that accounts of the complainants are so similar that they cannot be explained by coincidence.
You must, however, approach such reasoning with care to distinguish in this case similarities that might bear on surrounding conduct, but which are not really similarities bearing on the commission of the offences.
Let me illustrate with an example. [KMM] has given evidence that she was washed by the accused man from her early teenage years to at least one occasion when she was 23 or 24. There are similarities in this account with the accounts of the other three sisters, in terms of there being washing or bathing with the accused. However, [KMM] does not describe sexual contact during this washing or bathing so you would not reason that there was a similarity that went beyond the mere fact of washing.
On the other hand, [RMV] and [AAV] both describe sexual conduct in the form of having to wash the accused’s penis in the shower. And [VLV] describes penile penetration in the bath and attempted penetration.
The prosecution argues that there is a similarity in these accounts, in that the accused is using the pretext of bathing or washing to engage in sexual activity. You may use this evidence if you find the accounts are so similar that they cannot be explained by coincidence.
In such a situation you may infer that the only rational explanation for the similarities is that each of the witnesses is telling the truth.
….
Similar principles apply to the other evidence as similarities, which the prosecution argues first, the manner in which the ‘tickle time’ progressed, to touching the vaginal area and the breast area over clothing, and then under clothing with both [AAV] and [RMV].
Second, the penile penetration of [VLV’s] vagina in the bunk bed when she was 17 and then the attempted penile penetration of [RMV]. Third, the touching of the breast over clothing in relation to [KMM] and [AAV].
In our opinion, those directions were apt to ensure that the jury only considered sufficiently similar evidence in relation to particular counts.
Coincidence evidence: probative value and prejudicial effect
The second ground of the application for leave to appeal against conviction is that the trial judge erred in concluding for the purposes of s 101 of the Evidence Act 2008 (Vic) that the probative value of the coincidence evidence outweighed its prejudicial effect. Counsel for the appellant submitted that, with four sisters testifying that the appellant abused each of them over an extended period of time, there was a very real risk that individual jurors would reason that he must have sexually abused at least one of them and thus, despite directions to the contrary, would have engaged in reasoning that the appellant was the kind of person who was likely to have committed the conduct alleged by the Crown.
The trial judge gave clear, detailed and forceful instructions as to the use the jury could make of the coincidence evidence, including:
The first thing you must understand from these generalised allegations of sexual misconduct is that you must not substitute the evidence of these occurrences for the evidence that directly relates to the offences charged. That is, you must not reason that because the accused did these things, if you find that he did, and that is entirely a matter for you; you must not reason that just because he did these things, he must have also committed the conduct said to constitute the actual charges.
Similarly, you must not use that evidence to decide that the accused is the kind of person who is likely to have committed the offence charged and use this conclusion as evidence that he is guilty of the actual charges. That kind of reasoning is prohibited and I direct you that you must not reason in that way. Your decisions must be based only on the evidence given in the case, not on assumptions about the kind of people who commit crimes.
His Honour later reiterated these instructions, saying:
I now want to tell you how you can use this evidence, but before doing so I remind you of three things I said earlier about this evidence.
First, you must not substitute the evidence of these occurrences for the evidence that directly relates to the charged offences.
Second, you must not use that evidence to decide that the accused is the kind of person who is likely to have committed the offences charged, and to use this conclusion as evidence that he is guilty of the actual charges. That kind of reasoning is not permissible.
Third, you can only use the evidence of the accused's sexual conduct that does not directly relate to the offences charged in a permissible way, if you find that the evidence you do use – unless you find that the evidence you do use is established, beyond reasonable doubt.
The jury may be assumed to have obeyed these instructions.
Sentence
We turn to the appeal against sentence. The appellant is 54 years’ old. His parents separated when he was aged five years and his mother died when he was aged 16 years. The appellant left home before the death of his mother. He was not advised by his siblings of his mother’s funeral and so did not attend it. For many years he did not know where she was buried. Those matters are said to have greatly upset the appellant. The appellant had limited contact with his father.
The appellant left school at the age of 15 years and left home shortly thereafter. He completed one and a half years of an apprenticeship as a jockey, but was unable to go further due to increasing height and weight. Thereafter, the appellant worked continuously in various jobs until a decade ago, when he became a full-time carer for the woman he later married, who suffers from a number of illnesses.
Although the appellant had prior convictions, the sentencing judge said that he regarded them as irrelevant for the purpose of sentencing the appellant for the offences the subject-matter of this appeal.
Having regard to the fact that the appellant pleaded not guilty and remained, according to a psychologist’s report, ‘in denial’, the sentencing judge was not able to say that the appellant had good prospects of successful rehabilitation.
The first ground of the appeal against sentence is that the sentencing judge erred in imposing the same sentence on each count of incest and on each count of attempted incest.
Counsel for the appellant submitted that by imposing the same sentence the sentencing judge failed to take into account the different circumstances attending the commission of each crime. For example, counsel said that the level of premeditation in count 2 was not equal to that in count 11. He pointed out that the appellant was not sentenced as a serious sexual offender in respect of counts 1 and 2.
In our view, the sentencing judge did not err in taking a broad brush approach. The circumstances of the incest in counts 4, 5 and 10 were sufficiently similar to render identical sentences appropriate.[16] The circumstances attending count 1 might be seen as less serious, but the victim was younger. Like reasoning justifies the imposition of the same sentence for each of the counts of attempted incest. On one view, the appellant benefited from the imposition of the same terms of imprisonment in that it might be said that certain of the offences warranted sterner punishment.[17]
[16]Cf G J W v The Queen [2010] VSCA 193.
[17]See F D v The Queen [2011] VSCA 8.
The second ground of appeal is that the judge mistook the facts in relation to count 10, an offence of digital penetration of the complainant’s vagina. In his sentencing remarks his Honour said that the offence was committed in 2001, whereas it took place in 2007. If the sentencing judge did think the offence was committed in 2001, he presumably crafted a sentence that reflected the age of the victim as 12 years.
The complainant recounted the events chronologically in her evidence and said that she was 17 years old when the offence, the subject-matter of count 10, was committed. In our view, the date appearing in the transcript is either a typographical error or the result of a slip on the part of the sentencing judge. We do not think that his Honour sentenced the appellant on a false basis.
The final ground of appeal is that the sentencing judge mistook the facts in relation to count 11 in that he treated it as a separate incident of offending whereas it was part of one event.
In the course of his sentencing remarks his Honour said:
[Counsel for the appellant] submitted that the offending in counts 10 and 11 was involved in the same incident. It was not. They were separate incidents of offending.
Counsel for the respondent conceded that the prosecution did not establish that counts 10 and 11 were committed on different occasions. Nevertheless, as two separate and distinct offences were committed by the appellant, who was to be sentenced as a serious sexual offender, we are of the view that it was open to the judge to impose the sentence that he did on counts 10 and 11 and order a measure of cumulation.
We would therefore refuse the application for leave to appeal against conviction and dismiss the appeal against sentence.
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