Cha v The Queen

[2012] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cha v R [2012] NSWCCA 142

Hearing dates:

20 June 2012

Decision date:

04 July 2012

Before:

McClellan CJ at CL at [1]
Price J at [34]
Button J at [35]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal - conviction - whether directions of trial judge correct - whether directions regarding whether certain acts constitute sexual intercourse correct - leave to appeal granted - appeal dismissed.

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act

Cases Cited:

Johnson v Miller (1937) 59 CLR 576
R v Khouzame &Saliba [1999] NSWCCA 173
R v S [2000] 1 Qd R 445
Walsh v Tattersall (1986) 188 CLR 77

Category:

Principal judgment

Parties:

Jong Kyu Cha (Appellant)
Crown

Representation:

Counsel:
W Brewer (Appellant)
T Smith (Crown)
Solicitors:
Ford Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/288593

 Decision under appeal 

Date of Decision:

2011-09-02 00:00:00

Before:

Syme DCJ

File Number(s):

2010/288593

Judgment

1. McCLELLAN CJ at CL: The appellant was tried on an indictment which included two counts of having sexual intercourse with the complainant without her consent, being a breach of s 61I of the Crimes Act 1900. He was also charged with assaulting the complainant and, at the time of the assault, committing an act of indecency contrary to s 61L of the Crimes Act. He was only convicted of one of the counts which was in the following terms:

'On 30 August 2010 at Ultimo in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent knowing she was not consenting thereto."

1. The appellant was sentenced to a non-parole period of 2 years and 6 months to date from 6 June 2011 and expire on 5 December 2013 with an additional term of 1 year and 6 months to expire on 5 June 2015.

1. There are five grounds of appeal against conviction. The appellant does not seek leave to appeal against his sentence.

1. The grounds of appeal are as follows:

Ground 1: That the learned trial judge erred in law by ruling at the completion of the Crown case that evidence that the appellant had penetrated the complainant's genitalia in a number of ways, including touching her clitoris, and inserting his finger into her vagina, could be variously relied upon by the jury as sufficient proof that the appellant had sexual intercourse with the complainant.

Ground 2: That the learned trial judge erred in law by providing the jury with directions to the jury consistent with her ruling described in ground 1 herein.

Ground 3: That the learned trial judge's ruling and directions jury had the effect of charging the appellant with having committed two or more offences in the one charge, and was thereby, in the result, bad for duplicity.

Ground 4: That in consequence of the learned trial judge's ruling and directions to the jury on this issue, the trial of the appellant was unfair and led to a miscarriage of justice.

Ground 5: That the learned trial judge erred in law in her directions to the jury upon the use that could be made of the complainant's subsequent "recent complaints", by impermissibly directing that such evidence was "further evidence that the assault as alleged did occur", and that "you can use what she said and what she did about the accused's conduct as some evidence of the truth of what she said, that is, evidence to support what she said about what she alleges the accused did.

1. Ground 5 was abandoned at the hearing of the appeal.

1. It is convenient to deal with grounds 1, 2, 3 and 4 together.

1. The complainant was a woman in her early twenties. She grew up in Korea and came to Australia on a student visa. She was taking English lessons and has worked at various occupations. In the middle of 2010 she developed medical problems, particularly menstrual pain and other muscular pain and she sought advice from her friends as to who may assist her. She was recommended to the appellant as a Buddhist monk who had some training in the field of Chinese medicine and acupuncture. The complainant took up the recommendation and made an appointment to meet the appellant for treatment. She attended for treatment on four occasions. During the first three occasions she received what appears to be have been conventional acupuncture treatment.

1. She went to the appellant's premises on the fourth occasion on 30 August 2010. On this occasion she was asked by the appellant to remove some of her clothing. The appellant removed her underpants and inserted an acupuncture needle into the area of her anatomy between her vagina and her anus. He then used some form of medical applicator which he inserted into her vagina on a number of occasions which was the conduct which the Crown alleged constituted the first count on the indictment.

1. After this process the complainant was asked by the appellant to lie on her back and he commenced to do a full body massage including massaging her breasts. That was the conduct which the Crown alleged constituted an indecent assault. The appellant then started to massage the complainant in the vicinity of her vagina and her clitoris and it was alleged that in the course of that massage he placed two fingers inside her vagina leaving them there for a period of time.

1. After a time the complainant became concerned as to whether this was a legitimate form of acupuncture treatment. At the end of the session she challenged the appellant about the treatment and he allegedly said to her: "I made a mistake." The complainant left the premises and was very upset. She reported the incident to her boyfriend sending him a text message in which she complained that she had been raped.

1. The appellant gave evidence at his trial. He had previously participated in an ERISP with the police where he admitted that he had placed an "applicator" in to the complainant's vagina. He also agreed that he had touched her clitoris moving his finger backwards and forwards on it.

1. In the course of his evidence in chief and during cross-examination the appellant variously denied touching the complainant's clitoris or indicated that he may have done so unknowingly for "one second." This was in significant contrast to the answers he gave during the course of his ERISP.

1. The statement of facts served by the prosecutor pursuant to s 137 of the Criminal Procedure Act provided:

"He then started massaging up and down across the complainant's vagina with his fingers touching both the outside and the inside of the vagina (Count 3 - sexual intercourse without consent). The accused then began to touch the complainant's clitoris. The accused then inserted the index and middle finger of his right hand into the complainant's vagina in and out for 20 minutes. Sometimes when he removed his fingers he would rub around the complainant's clitoris."

1. The appellant submitted that this statement should be interpreted so that the Crown case was confined to the alleged insertion of the appellant's fingers into the complainant's vagina but excluding any reliance upon the touching of the clitoris as a basis for criminal liability.

1. In support of this submission the appellant drew attention to the prosecutor's opening, in particular the following passage:

"After doing that the accused had the [complainant] lie on her back face up and he commenced to do a full body massage that included massaging her breasts. And that's the conduct the Crown relies upon the found the charge of indecent assault. Various other things continue to take place. The accused then started to massage [the complainant] in the vicinity of her vagina and her clitoris and ultimately placed two fingers inside her vagina and did that for quite some time. [The complainant] became concerned about it but believed that this was some sort of legitimate acupuncture treatment. And at the end of that treatment she challenged Mr Cha whether that was a proper treatment and said she'd be concerned if it wasn't. And he said words to the effect: 'I made a mistake.' "

1. Towards the end of the Crown case the trial judge discussed with counsel the written directions she would give to the jury. The prosecutor said:

"So far as count 3 is concerned sexual intercourse involves the penetration to any extent of the female genitalia and the Crown would say on the admissions made by the accused in the ERISP of touching the clitoris, that would satisfy, even if they had a doubt about the finger penetration, that would satisfy the definition of sexual intercourse."

1. Defence counsel responded to this submission from the prosecutor by indicating that he had understood that the factual circumstances relied upon to prove the third count was the use of the fingers in the penetration of the vagina "and not so much the clitoral manipulation." It was accepted on behalf of the appellant that he had admitted touching the complainant's clitoris, although he denied penetration of the vagina. However, it was submitted that at the trial that the prosecution had made "a shift in its approach to the proof of penetration" and that the prosecution should have been limited to proof of penetration of the vagina.

1. It was further submitted that the broad definition of sexual intercourse in s 61H of the Crimes Act 1900 which provides that sexual intercourse means:

"(a)sexual connection occasioned by the penetration to any extent of the genitalia ... of a female person ... by ...:

1.any part of the body of another person, or

2.any object manipulated by another person .."

is 'an enabling definition, within the framework of which various, and varied allegations can be made the subject of separate alleged offences.

1. It was further submitted that the definition cannot be used to allow physical activity of significantly different natures and ingredients to be caught in a single charge, in a "catch-all" way, thereby relieving the prosecution from its responsibility to provide appropriate particulars. It was further submitted that the prosecution must particularise with precision the acts said to constitute the offence and in the present case in the particulars were not sufficient.

1. It was further submitted that by allowing the jury to consider both the touching of the clitoris and the allegation of penetration of the vagina with respect to count 3 the trial judge effectively allowed the prosecution to advance two separate acts either of which could constitute the offence alleged in count 3. It was submitted that this was unfair to the appellant.

1. In support of this submission the appellant referred to the decision of the High Court in Johnson v Miller (1937) 59 CLR 576 where Dixon J said at 489-490:

"In my opinion he clearly should be required to identify the transaction upon which he relies, and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence ... a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged, but also the particular act, matter or thing alleged as the foundation of the charge."

1. To the same effect it was submitted was the judgment of McKenzie J in R v S [2000] 1 Qd R 445 at 452 where his Honour said:

"One is the need to eliminate the risk of duplicity. The occasion on which the offence occurred must be sufficiently identified so that it may be differentiated by the jury as a specific event upon which they must focus ... The second purpose of particulars is to give the accused person a sufficient indication of what is alleged against him."

1. Accordingly it was submitted that the appellant suffered an incurable unfairness leading to a miscarriage of justice.

1. In my opinion the appellant's submissions should be rejected and the first four grounds of appeal must fail. The act which the prosecution particularised as constituting count 3 was alleged to have commenced with the massaging across the complainant's vagina, touching both the inside and outside of it which proceeded to touching of the complainant's clitoris and finally the insertion of two fingers into her vagina. It was asserted that on occasions the fingers would be removed at which time the appellant would rub around the complainant's clitoris.

1. For my part I understand the particulars to describe one event, although there is a progression of the activity from external acts to internal acts. The statement of facts makes clear that the Crown was asserting an ongoing incident of digital penetration which involved alternation between the insertion of the appellant's finger into the vaginal canal and the touching of the clitoris. The opening address of the prosecutor made plain that the Crown did not restrict itself to only digital penetration of the complainant's vaginal canal.

1. At the trial when this issue was raised the trial judge concluded that the term vagina had been used loosely in the proceedings. Her Honour said:

"It has been used to describe an area of the labia and it has been used to describe an area on the outside of the vagina and inside of the vagina. They are all, as far as I am aware, part of the female genitalia as is the clitoris."

1. At this point in the trial her Honour concluded, as in my opinion she was entitled to, that the Crown had not confined the allegation to one of the appellant only placing his fingers inside the complainant's vagina. I do not understand the prosecution case to have departed or altered from the way in which it was expressed in the s 137 statement and the manner in which it was opened to the jury. The Crown case was always that the appellant engaged in digital penetration of the complainant's genitalia although the degree and level of penetration differed from time to time.

1. This was not a case in which there were allegations of various and different acts of penetration (see R v Khouzame &Saliba [1999] NSWCCA 173. The appellant's submission that the effect of the trial judge's directions to the jury had the consequence that he was accused of having committed two or more offences in the one charge making it bad for duplicity should also be rejected.

1. The general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity they should be separately charged: Walsh v Tattersall (1986) 188 CLR 77. Kirby J explained at 107:

"If, for example, criminal acts occurred within a few minutes of time and in close proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.

...

Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include:

(a)the connection of the events in point of time;

(b)the similarity of the acts;

(c)the physical proximity of the place where the events happened; and

(d)the intention of the accused throughout the conduct."

1. In my opinion the events which were alleged to have constituted count 3 clearly fall within the exception to the rule with respect to latent duplicity. The allegation was that the appellant digitally penetrated the complainant's genitalia in the course of a continuous massage of the genital area. Although the fingers of the appellant may have contacted different parts of the complainant's genitalia at different times the circumstances were such that it was proper that a single count should be charged.

1. Finally, it is necessary to consider the appellant's submission that by reason of the ruling of the trial judge the appellant was disadvantaged. That ruling confirmed that her Honour would allow the Crown to assert that the evidence in proof of count 3 included both touching of the clitoris and penetration into the vaginal canal. If there was any real disadvantage to the appellant from the course which the trial judge took (and I have already indicated I did not believe this was the case) there was an opportunity for defence counsel at the trial to have asked for the complainant to be recalled for further cross-examination. This did not occur. To my mind this is not surprising given the admissions which the appellant made in the course of his ERISP. He plainly accepted that he had touched and massaged the complainant's clitoris. The discussion with counsel took place towards the conclusion of the Crown case. The appellant's counsel was able to make a decision as to whether to call the appellant with full knowledge of the course which the trial was to take.

1. During her summing-up the trial judge made plain to the jury that the Crown was not relying on an accidental touching of the complainant's clitoris by the appellant. Rather the Crown asserted that there was a deliberate touching over a period of time. Accordingly, the jury were given appropriate directions as to the manner in which the prosecution advanced its case. I would reject grounds 1, 2, 3 and 4 of the grounds of appeal.

1. Accordingly, although I would grant leave to appeal, the appeal should be dismissed.

1. PRICE J: I agree with McClellan CJ at CL.

1. BUTTON J: I agree with McClellan CJ at CL.

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Decision last updated: 02 October 2012