CMG v The Queen
[2013] VSCA 243
•10 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0204
S APCR 2012 0092
S APCR 2012 0138
| CMG | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WARREN CJ, REDLICH and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 6 February 2013 | |
| DATE OF JUDGMENT | 10 September 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 243 | 1st Revision 13 September 2013 2nd Revision 21 October 2013, paras [229], [232] and [241] |
| JUDGMENT APPEALED FROM | DPP v [CMG] (Unreported, County Court of Victoria, Judge Gaynor, 29 June 2011) ( S APCR 2012 0138 & S APCR 2011 0204) DPP v [CMG] (Unreported, County Court of Victoria, Judge Smallwood, 2 April 2012) (S APCR 2012 0092) | |
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CRIMINAL LAW – Appeal against conviction – Four charges of sexual penetration of a child under 10 – Three charges of indecent assault – Whether trial judge erred in precluding defence counsel from making certain submissions in final address – Failure by counsel to apply the rule in Browne v Dunn (1893) 6 R 67 to the complainant and other witnesses – Counsel warned as to the lack of evidentiary basis of the submissions.
CRIMINAL LAW – Juries – Role of the jury keeper – Whether irregularity – Whether court officer acted as jury keeper during deliberations – Separation oath/affirmation given to the jury – Section 49 of the Juries Act 2000.
CRIMINAL LAW – Appeal against conviction – One charge of indecent act with a child under 16 – Whether verdict inconsistent with the acquittal of two charges of indecent act with a child under 16 and one charge of sexual penetration with a child under 16 – Whether verdict unsafe and unsatisfactory – Appeal dismissed.
CRIMINAL LAW – Appeal against sentence – Sentence fixed taking account of sentence then being served for a conviction on other offences – Prior conviction later quashed – Matter brought back to sentencing judge – Whether the sentencing judge erred in fixing a new non-parole period following the quashing of a prior conviction – Section 412 of the Criminal Procedure Act 2009 – Sentencing judge functus officio upon the sentence entering the records of the court – DPP v Edwards [2012] VSCA 293 applied – Whether slip rule applied – Procedural fairness in re-sentencing. – Power on appeal to fix new sentence – Sub-section 277(3) of the Criminal Procedure Act 2009 considered – Appeal allowed – Resentenced to five years’ imprisonment with a non-parole period of three years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Desmond and Mr R Edney | Doogue & O’Brien |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
In this matter the appellant appeals two sets of convictions arising out of two trials involving different complainants and his sentence in relation to one set of those convictions.
The appellant was convicted of sexual offences in two separate trials. In the second trial, the convictions from the first trial were taken into account in sentencing. Subsequently, the appellant’s appeal against his convictions from the first trial were allowed and a re-trial ordered. The sentencing judge for the second trial, upon being alerted of the successful appeal on the first trial, recalled the matter before her and resentenced the appellant on the convictions from the second trial on the basis that the judge was authorised to do so.
Later again, on the retrial of the convictions from the first trial, the appellant was convicted of only one charge. The trial judge did not permit defence counsel to raise certain matters in final address. In addition, there was an assertion that improprieties had occurred in the management of the jury during deliberations. These matters were the basis of an appeal against conviction of the single charge in the retrial of the first trial.
The appellant appeals his conviction on the retrial of the first trial and his conviction in the second trial. He also appeals his sentence following the second trial.
The facts and evidence of the trials are set out in the reasons of Coghlan JA which I gratefully adopt.[1]
[1]See [146]-[151] & [219]-[235].
The Conviction Appeals
The grounds of appeal on the first matter, I will refer to as the LS matter, are:
1. That the guilty verdict of the jury was inconsistent with the other verdicts of acquittal.
2. That the verdict is unsafe and unsatisfactory.
The extant grounds of appeal against conviction on the second matter, I will refer to as the GS matter, are:
5. The trial judge erred in prohibiting defence counsel during his final address from further arguing certain matters;
6.The trial miscarried because an unsworn jury keeper permitted to be in contact with the jury during their deliberations.[2]
[2]Although the jury keeper in the re-trial of the LS matter was also unsworn, this is not a ground of appeal in relation to that matter.
I would dismiss the appeals against conviction for the reasons stated by Coghlan JA and, also, the additional remarks of Redlich JA.
The sentence appeal
I now turn to the procedural history, which is complicated, in more detail.
The appellant was originally convicted on four charges in relation to LS on 11 February 2011: three charges of an indecent act with a child under 16 and one charge of sexual penetration of a child under 16. He was sentenced on 25 February 2011, by her Honour Judge Sexton, to a total effective sentence of six years’ imprisonment with a non-parole period of four years.
Subsequently, on 7 June 2011, the appellant was convicted on the GS matters. Taking into account the appellant’s recent conviction and sentence on the LS matters,[3] her Honour Judge Gaynor sentenced the appellant on all of the offences as a serious sexual offender.[4] On 29 June 2011 he was sentenced to six years and four months’ imprisonment on the GS matters, with two of those years to be served cumulatively on the LS sentence. Judge Gaynor also ordered a non-parole period of six years in relation to both sets of convictions, pursuant to s 14 of the Sentencing Act 1991. As a result, the appellant was ordered to serve a total effective sentence of eight years’ imprisonment in relation to both the LS and GS convictions, with a non-parole period six years. No separate non-parole period was ordered in relation to the total effective sentence on the GS conviction because the non-parole period encompassed both sets of convictions.
[3]See DPP v [CMG] (unreported, Judge Gaynor, 29 June 2011) especially [15]-[20], [25]-[26], [28].
[4]Pursuant to s 6F Sentencing Act 1991 (Vic).
However, at the time of sentence, the appellant was appealing his four convictions in relation to the LS matters. Eventually, the convictions were quashed and a re-trial was ordered on 24 October 2011.
Upon the disposition of the LS appeal the circumstances that underpinned the sentence in GS had changed, clearly after sentence. The minimum term which now applied, by default, to the GS sentence alone, breached the requirements of s 11(3) of the Sentencing Act 1991 (Vic)[5] and there was no separate non-parole period ordered in relation to the GS convictions that could replace it. If the minimum term in GS was designed to encompass both sets of convictions it could no longer appropriately apply.
[5]A non-parole period must be at least six months less than the term of the sentence.
The GS sentence was not raised by counsel before the Court hearing the LS appeal. The Court had no knowledge of the circumstances leading to the GS convictions and sentence. Counsel did not request the Court to deal with the matter at the time. Later the difficulty was identified and Judge Gaynor was notified. In the end, after email communications between Judge Gaynor’s associate and a Court of Appeal associate, her Honour considered that it was necessary for her to deal with the GS matter and had it returned before her Honour on 1 December 2011. By this time the appellant lodged an appeal against conviction in the GS matter.
Her Honour informed counsel appearing on the recall of GS that the Court of Appeal did not regard her as functus officio. Ultimately, Judge Gaynor concluded that s 412 of the Criminal Procedure Act2009 (Vic) permitted the setting of a non-parole period in relation to the GS convictions alone.
The solicitor for the appellant before Judge Gaynor submitted that setting a non-parole period should be a matter for the Court of Appeal, as the appellant was also appealing the GS convictions to that Court. Judge Gaynor did not accept the submission. Her Honour articulated three reasons. First, because the Court of Appeal had left the matter to her Honour to resolve. Secondly, because she considered the Court of Appeal was entitled to deal with a properly constructed sentence if the conviction appeal failed and it then had to consider the appeal against sentence. Thirdly, because she considered it inappropriate to leave matters in abeyance because the appellant had chosen to appeal against conviction and sentence. It is unclear why her Honour thought that an appeal was already on-foot against sentence. At that date, none had been filed.
Her Honour, having considered she was seized of the matter, then imposed a new non-parole period of four years. The total effective sentence of six years and four months’ imprisonment was unaffected.
For reasons I will shortly state, her Honour was not permitted to take this approach. Her Honour had become functus officio once her first sentence entered the record of the court and she could not reconsider the matter or recall her earlier order relating to the minimum term. While there are some qualifications to this rule, s 412 of the Criminal Procedure Act did not provide one under the circumstances of this case. However, in the circumstances outlined above, her Honour’s actions were entirely explicable and should attract no criticism.
Following the resentence on the GS convictions, the appellant was re-tried on the LS matters before his Honour Judge Smallwood. The appellant was acquitted of all but one of the LS related charges and sentenced by his Honour on that conviction to 137 days’ imprisonment to be served concurrently on the sentence in relation to the GS convictions.
In June 2012, the appellant applied for leave to file an appeal out of time against the head sentence and the new non-parole period on the GS matters. The ground of appeal was that:
1. The sentencing discretion miscarried on 1 December 2011 because:
(a) The applicant was denied knowledge of the basis upon which the Court of Appeal had determined that the judge should re-sentence the applicant;
(b) The applicant was denied the opportunity to make submissions on re-sentence;
(c) The sentencing judge erred in finding that s 412 of the Criminal Procedure Act 2009 empowered her to re-sentence the applicant.
At the hearing of the appeal, the Court foreshadowed that it would grant the extension of time for leave to appeal, grant leave to appeal, allow the appeal and would hear the plea on resentence. The Court would publish its reasons at a later date. I turn to the grounds.
The sentencing judge was functus officio
I consider ground 1(c) to be made out and the order as to a non-parole period made in December 2011 should be declared invalid and set aside.
There is no doubt that Judge Gaynor’s sentence was valid when first imposed. Nor is there any doubt that, in the absence of some statutory or common law exception, her Honour was functus officio for the purpose of that sentence. The sentence had entered into the record of the court.
However, her Honour purported to rely on s 412 of the Criminal Law Procedure Act. That section gives the court a broad power to amend a sentence for the purpose of correcting any ‘defect or error in substance or in form’. Thus, if the quashing of the sentencing by Judge Sexton led to an ‘error in substance’ in the sentence of Judge Gaynor, arguably s 412 might be engaged to create an exception to the functus officio rule.
There are some possible ways in which the sentence of Judge Gaynor could be said to contain ‘error in substance’ as a result of the LS convictions being quashed. The first is that the non-parole period is in breach of s 11(3) of the Sentencing Act. The second is the appellant was treated as a serious sex offender in relation to each count whereas he should not have been treated as a serious sexual offender in respect of the first two counts.[6] The third is that her Honour may have miscalculated the appellant’s prospects for rehabilitation. The fourth is that her Honour took into account what has proven to be an irrelevant consideration — prior convictions. A final and related issue, is that the quashing of the convictions could be regarded as ‘fresh evidence’.
[6]Per s 6B of the Sentencing Act a person is not a serious sexual offender until convicted of two or more relevant offences.
The appellant argues that s 412 did not apply in this case and during the appeal hearing the Crown conceded that it did not. The Crown submitted that s 412 could only apply when the error in question existed at the time that the sentence was imposed.
The potential errors I have mentioned are all ‘errors’ of the sort encompassed by an appeal against sentence under s 278 of the Criminal Procedure Act. An appeal under s 278 will succeed under s 281 if an appellant satisfies the Court that there is an ‘error’ in the sentence first imposed (and a different sentence should be imposed). There has been very little discussion of the limits of s 412. However, if an ‘error in substance’ in s 412 was construed as being broad enough to cover these types of errors there would be no reason why it could not encompass almost any ‘error’ encompassed in s 281. Moreover, it would mean that events subsequent to the imposition of a sentence containing no error in substance would enliven the sentencing judge’s power to resentence. A sentencing judge might be functus officio one day and not the next. The power of sentencing judges would extend to being able to recall or amend sentences in a dramatic way. It is extremely unlikely that Parliament could have intended to create such a change to the criminal appellate system or essentially undermine any certainty in the sentencing process.[7]
[7]See also DPP v Dickson [2011] VSCA 222 [43] (Maxwell P, Buchanan and Weinberg JJA agreeing).
In written submissions on appeal, the Crown had also sought to rely on the argument that the resultant effect of Judge Gaynor’s sentencing order left her essential judicial function unperformed such that her Honour could exercise the inherent jurisdiction of the Court to correct the error, relying on R v Brattoli and R v Judge Bland, Ex parte DPP.[8] These cases were overruled subsequent to the filing of written submissions.[9] In any event, these cases may be distinguished on the basis that her Honour’s order was validly made at the time, unlike the cases referred to where the orders were always made incorrectly.
[8]Crown’s written submissions para [8.9].
[9]See DPP v Edwards [2012] VSCA 293.
Grounds (a) and (b)
In his appeal submissions the appellant complains that neither he nor his counsel were included in the communications between the Court of Appeal and Judge Gaynor that preceded the resentence. The appellant’s submissions also assert that Judge Gaynor did not ‘ask or require Counsel’ or the appellant if they desired to make further submissions.[10] The appellant submits that the opportunity to make such submissions was necessary because of his lack of prior convictions, his good antecedents and the application of the serious sexual offender provisions of the Sentencing Act, all of which needed to be considered in any re-sentencing exercise.
[10]Appellant’s written submissions para [22].
The requirements of procedural fairness vary from case to case.[11] It seems to me that in this case they would have at least required the appellant be given the opportunity to make submissions on the new sentence, especially in light of the way Judge Gaynor gave close consideration to the subsequently quashed convictions. The complaint in this case is that counsel was not required by Judge Gaynor to make such submissions. Nevertheless, the Crown conceded during the appeal hearing that her Honour would not have permitted any submissions to be made about resentence. In any case, as a result of the appellant’s success on ground 1(c), it is unnecessary to consider grounds 1(a) and (b).
[11]R H McL v The Queen 203 CLR 452 [23] (Kirby J) citing Kioa v West (1985) 159 CLR 550, 615; J v Lieschke (1987) 162 CLR 447; Annetts v McCann (1990) 170 CLR 596.
In this light it is relevant to note that s 412 does not specifically provide for a re-hearing. The Crown, in its written submissions, argued that as the ‘slip rule’ did not necessarily have to be applied in open court or required submissions unless desirable in the interests of justice, neither would s 412.[12] Interstate provisions which expressly provide that under certain circumstances a Court may reopen proceedings or rescind or recall a sentence and remake or amend a sentence contain this requirement.[13] This in fact provides a further indication that s 412 was not intended to apply in cases such as this.
[12]Crown’s written submissions [8.8]. However, the Crown conceded during the oral hearing that the basis of the resentence should have been properly placed before the parties so that submissions could be made on it.
[13]Crimes (Sentencing Procedure) Act 1999 (NSW) s 43(2); Sentencing Act (NT) s 112(2); Crimes (Sentencing) Act 2005 (ACT) s 61(2); Sentencing Act 1997 (Tas) s 94(4); Sentencing Act 1995 (WA) s 37(2); Penalties and Sentences Act 1992 (QLD) s 188(3).
Leave to appeal the original sentence
It does not necessarily follow that, because the appellant has succeeded in demonstrating that the sentencing discretion miscarried in relation to the non-parole period on 1 December 2011, the original exercise of the sentencing discretion in June 2011 miscarried in relation to the head sentences and total effective sentence. The appellant has not specifically directed the grounds of appeal at the head sentence or total effective sentence. However, during oral argument, the Crown submitted that they would not oppose the granting of leave to appeal with the amendment of the grounds to allow for an appeal on the basis of manifest excess. The Crown conceded that the sentence was unjust as it stood.
In these circumstances and largely for the reasons articulated by Redlich JA, I would grant the appellant leave to appeal against the individual sentences. However, in addition to the potential for a ground of manifest excess to succeed, there may be another ground for appeal. For the reasons that follow it is clear that the quashing of the LS convictions has led to the creation of subsequent error in the original sentence, for the purposes of s 281 of the Criminal Procedure Act and on that basis a different sentence ought to be imposed.
The sentencing remarks
When sentencing the appellant on 29 June 2011, Judge Gaynor made significant reference to the LS convictions. First, her Honour set out the facts underlying the offences before her and then the appellant’s personal circumstances. Her Honour then went on to say:
[15] On 25 February you were sentenced by Her Honour Judge Sexton to a term of imprisonment of six years, and ordered to serve a four year minimum, after you were convicted at trial of three charges of committing an indecent act with a child under 16, and one charge of taking part in an act of sexual penetration with a child under 16. Those charges related to the complainant L, who was the daughter of your wife's cousin.
[16] On 21 January 2009 you took L to your house where no one else was present and showed her photographs of naked women on a computer, kissed her within an open mouth, removed her skirt and underpants, and penetrated her vagina with your fingers. L was aged seven at the time. The discovery by L's parents of your sexual abuse of their daughter led to the complaint being made by GS, in that following the revelation of that conduct both your former wife and GS's mother questioned GS about whether or not you had sexually abused her. She at first denied anything had happened, but then admitted you had touched her and eventually made a statement to police which underlay the charges you ultimately faced in the trial before this court.
[17] The offending against L occurred subsequent to the offending in relation to GS, and this in my view has important ramifications for the sentencing exercise before me. It is very often the situation in cases where children have been the victims of sexual abuse that the perpetrator is an otherwise thoroughly respectable person, with an excellent work history and no other prior criminal history. Indeed that is the case with you [CMG]. Ordinarily those sorts of factors have a strong mitigatory effect upon any sentence a court might oppose. That is not the case, however, when sentencing is imposed for sexual abuse of children. Your counsel quite properly conceded that principles of general deterrence, just punishment, and condemnation are the major sentencing considerations for this court in undertaking the exercise of sentencing you.
[18] But further to the fact that you went on to sexually abuse another small girl in similar circumstances has ramifications insofar as my view of your prospects of rehabilitation are concerned. It may well be that you are a person who has otherwise remained crime free, has held down responsible paid work, and has to all other intents and purposes lived a thoroughly respectable life, however you have now been convicted of sexual offending against two little girls, both of them members of your wife's family, both of them under the age of ten. Your actions in each case represented a gross breach of trust. In relation to each child you were given care of that little girl by her parents.
[19] Your actions in sexually abusing GS and then going on to sexually abuse L mean in my view that your prospects of rehabilitation, insofar as sexual offending against children are concerned, is doubtful indeed. Additionally in each case you pleaded not guilty, you fought the charges, and indeed your counsel in his plea before this court stated that you do not accept your guilt and regard yourself as innocent of these charges. Therefore in addition to the concern the court must have about the fact of you going on to abuse another little girl, after you abused GS, regard must be had to the fact that you have displayed no remorse for your actions, and this also affects any review of rehabilitative prospects the court might take.
[20] There is no basis for this court, in my view, to find that you have positive rehabilitative prospects. Given as I have said that you went on to offend against another child, that you have in each case refused to admit guilt, and that you have displayed no remorse, the court can therefore only regard your rehabilitative prospects as bleak. This has further impact on the sentencing exercise in that the issue of protection of the community in cases such as this looms large. In all the circumstances it is my view that you continue to present a danger to female children, and this is a matter I take strongly into account in sentencing you.
Her Honour referred to the impact on GS and the family. Her Honour then went on to say:
[25] I accept that your offending was not particularly pre-meditated, and I accept that it was largely opportunistic, however the fact that you would think to take advantage of a situation where you had responsibility for a little girl, the niece of your wife, who was less than ten years old, in order to sexually assault her in the way you did, still remains appalling behaviour on your part. As I have said the offences are extremely serious and your actions in subsequently assaulting L, and in contesting every one of the charges laid against you in relation to your two victims, speaks very poorly for your rehabilitative prospects, in my view, and highlights the need for me to impose a sentence which reflects the serious concerns a court should have in protecting the community from yourself.
[26] In sentencing I note that I sentence you as a serious sexual offender, and I declare you to be a serious sexual offender. I note that the prosecution does not seek a sentence which is disproportionate in all circumstances, so there will be a degree of concurrency between the sentences I impose on each charge.
And after accepting that there should be some degree of concurrency her Honour added:
[28] Finally as you are currently serving a sentence involving a head and minimum term, I am obliged pursuant to the Sentencing Act to impose a new minimum term which reflects sentencing for your offending both against L and GS. In sentencing you I also note that originally indictments were filed containing charges relating to both victims, and that subsequently and understandably you sought and were granted a severance in this matter. That was most appropriate for the running of the trial, but it does present a difficulty for you which I do recognise in terms of the sentencing opportunity for concurrency being lost, had all matters proceeded before the same judge on the same occasion.
These remarks and the appellant’s submissions provide three key instances of how consideration of the LS convictions adversely affected the GS head sentences and total effective sentence. First, it meant that the appellant was considered as having relevant prior convictions. Secondly, it meant that the appellant’s prospects for rehabilitation were assessed as worse than they might otherwise have been. Thirdly, it meant that the appellant was sentenced on all of the GS convictions as a serious sexual offender for the purposes of s 6D of the Sentencing Act.
While these matters might all be factors pointing towards a sentence being manifestly excessive, they do not necessarily seem to be errors in their own right. They seem analogous to a situation where a factor is not capable of being taken into account in a court below.[14] They would be matters best dealt with as being related to ‘fresh evidence’. The demonstration that there is fresh evidence requiring a different sentence to be substituted to avoid a miscarriage of justice is an error in itself, without the need to determine whether the original sentence was (otherwise) vitiated by error or was manifestly excessive,[15] or in other words, whether the sentencing discretion miscarried below. These matters are clearly relevant as to whether there was a miscarriage of justice.
[14]See, eg, R v Eliasen (1991) 53 A Crim R 391 where it was considered ‘perfectly plain’ that the sentencing judge made no error in failing to have regard to the greater burden of imprisonment on an accused who suffered from HIV because at the time of sentence he was still awaiting his test results. See also R v Tayar [2007] VSCA 182 [6]-[12] which concerned the appellant’s parole being cancelled after sentence.
[15]See, eg, R v Duy Duc Nguyen [2006] VSCA 184 [36] (per Redlich JA, Maxwell P and Neave JA agreeing) citing R v Ahmed [2005] VSCA 279 [11], [18]; R v SH [2006] VSCA 83,[25]-[26]; R v Eliasen (1991) 53 A Crim R 391, 396; R v Rostom (1996) 2 VR 97, 103 and R v McLachlan (2004) 8 VR 403 [10].
For the sake of completion I would add that the subsequent quashing and ultimate verdict of acquittals on the majority of the LS matters fit the other requirements for the admission of fresh evidence, namely that the new evidence relates to events occurring since sentence and demonstrates the true significance of facts in existence at the time of sentence and not merely events occurring after sentence which show that the sentence was manifestly excessive. [16]
[16]See R v Duy Duc Nguyen [2006] VSCA 184 [36] (per Redlich JA, Maxwell P and Neave JA agreeing).
It seems clear that the sentencing discretion has been re-opened and a new sentence must be imposed to avoid a miscarriage of justice.
In sum, I would grant the extension of time to appeal against sentence and allow the appeal against sentence. On the basis that Judge Gaynor was functus officio, the non-parole period imposed in December 2011 is invalid and should be set aside. I am persuaded that the head sentences, total effective head sentence and minimum term imposed by Judge Gaynor in June 2011 also contain error for the purposes of s 281 and should be set aside and a new sentence should be imposed.
Section 277
Counsel were also asked if s 277 of the Criminal Procedure Act could be applied in this case. That section is found in ‘Appeal Against Conviction’, Div 1 of Part 6.3 and says:
Orders etc. on successful appeal
…
(3)If the Court of Appeal sets aside the conviction of offence A,[17] it may vary a sentence that –
[17]That is, the offence whose conviction is set aside under s 277(1).
(a) was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and
(b) Took into account the sentence for offence A.
(4)A power of the Court of Appeal under this section to impose a sentence in substitution for the sentence imposed by the originating court may still be exercised even if the sentence imposed by the originating court is an aggregate sentence of imprisonment.
(5)If at the conclusion of an appeal the appellant remains convicted of more than one offence, the Court of Appeal may either-
(a)impose a separate sentence in respect of each offence; or
(b)impose an aggregate sentence of imprisonment in respect of all offences or any 2 or more offences.
This Court would not be capable of employing the provision. I agree with Redlich and Coghlan JJA that the appeals against conviction should be dismissed. It follows that there has been no successful appeal against conviction and the powers under s 277 are not enlivened. The situation might be different if the appellant had asked the bench that heard the first appeal against the LS matters to vary the GS sentence per s 277(3) but that does not arise here.
I would further add that this matter could have been simplified by an early application being made under the section, which has been little explored. The section is clearly a useful one, designed to avoid the need to file any separate application for leave to appeal against sentence.
Sections 277(3)-(5) of the Criminal Procedure Act appear to replace s 569(1) of the Crimes Act.[18] That section provides:
[18]A detailed history of the section may be found in R H McL v The Queen (2000) 203 CLR 452, especially in the judgment of Kirby J. See also Ryan v The Queen (1982) 149 CLR 1.
569Powers of Court in Special Cases
(1)If it appears to the Court that an appellant, though not properly convicted on some count or part of the indictment or of the charge … has been properly convicted on some other count or part of the indictment, or charge the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefore as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment or charge on which the Court considers that the appellant has been properly convicted.
The wording of s 277(3) appears to be based on s 30(6) of the Criminal Appeals Act2004 (WA). Sub-sections (4) and (5) are unique and are possibly directed at clarifying or confirming issues which arose in the few cases concerning s 569(1) or its equivalents in other states.[19]
[19]For example, in Ryan v The Queen (1982) 149 CLR 1 it was submitted that s 569(1) was limited to aggregate sentences whereas sub-s (4) makes it clear that s 277 (3) is not.
It is useful to keep in mind the words of the Court that first considered s 569(1):
Accordingly, if the sub-section can be seen to be capable of some wider operation which is both just and expedient, this Court should so interpret it; to do otherwise will be to deny to it any effective operation … At the same time the provision should clearly enough not be given any wide operation which both strains its language and is likely to lead to any suggestion of injustice to a convicted person. It is no light thing for an appellate court to vary the sentence pronounced by a trial judge against which no appeal has been taken. If it is to be done at all quite clear statutory authority should be found.[20]
[20]Ryan v The Queen (1982) 149 CLR 1, 4-5 (Stephen J).
The wording of sub-s (3) is very broad; the only real requirement is that the sentence that may be altered ‘took into account the sentence’ for offence A. A sentence may be ‘taken into account’ in a number of ways. There are further indicators that the sub-section has broad application. The sub-section may be employed for sentences imposed ‘after the time’ the sentence for offence A was imposed. This leads to a conclusion that the offences in question do not necessarily have to be on the same indictment or even relate to the same set of circumstances or events. Sub-sections (4) and (5) clearly relate to sub-s (3). Sub-section (4) allows the variation of a sentence even if it is an aggregate sentence; clearly then, sub-s (3) encompasses both aggregate and non-aggregate sentences. Sub-section (5) refers to what may be done ‘if’ an appellant remains convicted of more than one offence at the end of a successful appeal. Thus sub-s (3) must encompass situations where that might not be the case. Therefore it does not limit the powers of the court to sentences imposed for convictions which were not succeeded in being overturned on appeal.
Thus the text of s 277 leads to the conclusion that sub-s (3) may apply in a broad set of circumstances, allows the court to vary the sentence imposed in relation to convictions not the subject of appeal and allows the court to vary the sentence imposed in relation to convictions not forming part of the same indictment or set of circumstances.
This is in contrast to the predecessor to s 277(3). However, the sections are worded very differently. Section 569(1) specifically referred to ‘some other count or part of the indictment’, clearly specifying on which counts the court had the power to resentence. Section 569(1) also referred to it appearing to the Court that an appellant ‘has been properly convicted on some other or part of the indictment’. Those words were held to be significant in the High Court cases considering s 569(1).[21] It meant that the counts on which the appellant could be resentenced must generally be counts on which the Appellate Court itself considered the rightfulness of the conviction.[22] That is, an appellant could generally only be resentenced under s 569(1) on counts that were the subject of a failed appeal against conviction.
[21]See, eg, R H McL v The Queen (2000) 203 CLR 452 [32] (Gleeson CJ, Gaudron and Callinan JJ), [98] (Kirby J), Ryan v The Queen (1982) 149 CLR 1, 10 (Stephen J), 15 (Aickin J), 20-1 (Wilson J, Gibbs CJ agreeing), R v Gibb [1997] 2 VR 576, 579-81. (Callaway JA).
[22]With some suggested possible exceptions for aggregate sentences, which were rare at the time, and any death sentences: Ryan v The Queen (1982) 149 CLR 1.
That this could lead to considerable injustice and inconvenience was demonstrated in R v Giam.[23] In that case the appellant was convicted on seven counts, six of which were found to not be able to stand. The court found that it was inconceivable that the sentencing judge would have imposed the sentence that he did for only the seventh count. However, there was no appeal against conviction on the seventh count and therefore s 7(1) of the Criminal Appeal Act 1912 (NSW) (a section almost identical in terms to s 569(1)), could not apply. Thus, in the absence of an appeal against sentence, the Court considered it was necessary to order a retrial, rather than an acquittal, on the offences.
[23][1999] NSWCCA 53.
Section 277(3) does not contain the described limitations found in s 569(1). It appears to be specifically designed to avoid the limitations of its predecessor and pre-empting issues that arose in relation to it.
However, it is not necessary in this case to explore all the categories of cases where s 277(3) may apply.[24] It is enough to say that it seems to me that s 277(3) encompasses the situation before this Court where a sentence took into account an earlier sentence when imposing a minimum period for both sets of offences.
[24]Specifically, whether the section grants the court the power to increase sentence. That is an important question requiring careful consideration and it is not appropriate to discuss it here.
However, whether that second sentence and the related offences have been discussed in any depth before the Court will almost certainly be relevant to whether the Court of Appeal chooses to exercise its discretion under the section. Whether there is an appeal already on-foot on those convictions or sentences will also be relevant.
It is also worth noting that, unlike the powers of the court on an appeal against sentence pursuant to s 282, the court is unable to remit a sentence under s 277. This may affect whether an appellant chooses to apply for leave to appeal against sentence, rather than seeking to rely on s 277(3).
Another issue is whether the section is broad enough to encompass a situation where a sentencing judge simply took into account the fact that an appellant had been convicted of related offences when imposing a later sentence. For example, when assessing the appellant’s prospects for rehabilitation. It seems to me that the section is not so broad. The section is not directed towards sentences that took into account the quashed conviction but, specifically, the quashed sentence. The sentence itself, rather than the conviction, must have been what was taken into account in order for the section to be engaged. However, such an issue could of course be raised in an appeal against sentence.
I do not see that the distinction raises any inconsistency. As the focus is on a sentence that took into account a quashed sentence, rather than a quashed conviction, s 277(3) will most likely be employed when the convictions encompass one series of events, as the sentences imposed would have been adjusted to reflect the principal of totality, or in situations such as this when one minimum period is imposed in relation to two or more sets of convictions. The quashing of the original sentence will often therefore automatically create some ostensible and obvious error that will require a different sentence to be imposed, without any need for further demonstration of that conclusion.
As for any theoretical application that might have been made to the bench quashing the LS convictions, it seems to me that had an application been made it must have been against the original sentence imposed and not the newly imposed non-parole period. First, because the section seems to presuppose that the sentence being varied is a valid sentence (that is, capable of variation) and secondly, because, ostensibly, the new non-parole period specifically did not take into account the now quashed convictions and sentences for the LS matters. Whether the Court would have chosen to exercise its discretion is of course another issue.
Save for these remarks I would allow the appeal against sentence for the reasons stated by Redlich JA and resentence the appellant as his Honour has proposed.
REDLICH JA:
The appellant was convicted on 7 June 2011 following a trial in the County Court on three charges of committing an indecent act with a child under 16 and four charges of sexual penetration of a child under 10. I have had the benefit of reading in draft the reasons of Coghlan JA and for those and the reasons which follow would dismiss the appeal.
The appellant, having been granted leave, also appeals against his sentence.
For reasons which follow I would allow the appeal against sentence and re-sentence the appellant.
I also agree with Coghlan JA that the appeal against conviction relating to the appellant’s second trial should also be dismissed.
Leave to appeal against his conviction on the first trial was granted on two grounds:
5.The trial judge erred in prohibiting defence counsel during his final address of further arguing that:
(a)Two charged incidents occurred ‘out of the blue’; and
(b)The complainant’s behaviour in having the appellant host her thirteenth birthday party was inconsistent with her allegations of having been abused by the appellant; and
(i)if the allegations were true, she would not allow the appellant to host and mix with her friends; or alternatively
(ii)the complainant’s state of mind would be such that she would fear the appellant might sexually ingratiate himself with one of her friends at the party; and
(iii)the only evidence was of a young girl enjoying herself at her thirteenth birthday with her friends and mixing with the appellant and other adults
and that her Honour foreclosed the jury’s consideration of these arguments when directing a jury.
6. The trial miscarried because an unsworn jury keeper was permitted to be in contact with the jury during their deliberations.
Ground 5
Defence counsel during closing argument made submissions to the jury that they should take into account in assessing the truthfulness of the complainant’s allegations that she had only given evidence of two incidents which had in fact occurred ‘out of the blue’. He also had submitted that the jury should take into account that it was unlikely that abuse had occurred if the complainant was willing to have her 13th birthday at the appellant’s premises in circumstances where he might then commit such an offence against one of her friends and that she would more likely have been in fear of the appellant and would not have agreed to such a course.
During an adjournment in the course of that closing address, the trial judge raised her concerns that neither of those submissions should have been made to the jury as there was an absence of evidence in relation to either of those matters. Her Honour drew to the attention of defence counsel that in the statement of the complainant there were allegations that there were also uncharged acts although the prosecution had not sought to place evidence of those acts before the jury.
In the complainant’s statement to investigators the complainant had made assertions as to a number of uncharged acts and improper conduct by the appellant. It is unnecessary to refer to them in detail. Had such evidence been introduced at the trial and accepted by the jury, it would have demonstrated that the appellant had a sexual interest in the complainant.
Defence counsel responded to the trial judge’s concern by suggesting that he was entitled to make such submissions as that was the state of the evidence before the jury. The trial judge maintained that having regard to the extent of the complainant’s cross examination, such submissions should not have been made. Her Honour was justifiably concerned that defence counsel had sought to make much of the frequent association of the complainant with the appellant and his family without putting that to the complainant. Her Honour also drew attention to his failure to raise with the complainant his intention to comment upon the fact that her evidence was, in effect, that the two alleged acts ‘came out of the blue’ without any preceding grooming or uncharged acts by the appellant. It was pointed out that what was being suggested to the jury was inconsistent with the evidence she could have given had she been given the opportunity to answer those allegations. Although defence counsel initially relied upon his right to take advantage of the state of the evidence he did not otherwise challenge the concerns raised by the trial judge.
During the course of oral argument on the appeal, counsel for the appellant acknowledged that he had not put to the complainant that the frequency with which she associated with the appellant and his family after the commission of the alleged offences showed that her allegations were untruthful. He also conceded that he had not put to the complainant that she had made no suggestion that the appellant had shown any sexual interest in her or behaved in any way inappropriately towards her other than on the two occasions the subject of the charges. Counsel accepted that by not putting such matters to the complainant he had failed to provide her with an opportunity to respond to these matters and had thereby breached the rule in Browne v Dunn.[25]
[25]See R v Morrow (2009) 26 VR 526, 539-41 [46]-[55] for a discussion of counsel’s obligations in complying with the rule in Browne v Dunn.
The breach of the rule was obvious. Counsel had sought to take advantage of the fact that the prosecution had not sought to introduce evidence of any uncharged acts which proceeded the offences charged and had avoided any suggestion that the appellant had not otherwise shown any sexual interest in the complainant. He also refrained from any puttage that the complainant’s conduct after the commission of the alleged offences was inconsistent with their occurrence. Although it is clear that counsel pursued this course for forensic reasons, whether defence counsel realised that the course he had followed was in breach of the rule in Browne v Dunn is open to doubt.
Be that as is may, the primary contentions of the appellant now are that the trial judge wrongly precluded counsel from further developing his submissions before the jury and by her comments to the jury effectively withdrew those issues from the jury’s consideration.
The absence of cross-examination of the complainant on these issues in breach of the rule in Browne v Dunn and the attack made on her credibility in defence counsel’s closing address, left the trial judge in a difficult position as to how to instruct the jury in evaluating the criticism of the complainant’s credibility advanced for the first time by defence counsel in closing address. As I observed in R v Rajakaruna (No 2)[26] it is a matter for the trial judge whether it is thought necessary to draw to the jury’s attention that the complainant has not been given the opportunity to respond to suggestions which counsel advances in closing address. Her Honour was entitled to tell the jury in strong terms that that was a matter they could take into account in assessing the weight to be given to the criticisms advanced by defence counsel. However, a failure by defence counsel to comply with the rule and put relevant matters to the complainant did not disentitle counsel from advancing such arguments before the jury.
[26](2006) 15 VR 592, 606 [48] (‘Rajakaruna’).
As I also observed in Rajakaruna, notwithstanding a breach of the rule in Browne v Dunn, a trial judge may not prevent counsel from advancing an argument as to the facts because the witness was denied an opportunity to answer the claims being made in argument. But a judge is entitled to direct the jury in the strongest terms as to the effects which a failure to comply with the rule should have upon their view of the facts. The judge may not by reason of non-compliance with the rule withdraw an issue of fact from the jury.
Defence counsel, who is very experienced, did not in the end cavil with her Honour’s criticism of his conduct or with the course which her Honour proposed. He acknowledged during the course of oral argument on the appeal that he had recognised during debate with her Honour, that if he had indicated a desire to further pursue such submissions before the jury, he would have faced the prospect that the complainant would be recalled. That was a result that he wished to avoid. Hence he abandoned his intent to further develop the argument before the jury.
I therefore agree with Coghlan JA that counsel was not prohibited from following a course which he wished to pursue. I also agree with Coghlan JA that the jury would not have understood her Honour to have withdrawn these issues of fact from their consideration. I am fortified in that view by the fact that defence counsel took no exception to the comments made by her Honour in her charge.
Accordingly, this ground is not made out.
Ground 6
The other ground upon which leave was granted was that the trial miscarried because an unsworn jury keeper was permitted to be in contact with the jury during their deliberations.
Prior to the involvement of Mr Percy the jury was sworn pursuant to s 50 of the Juries Act 2000.
Mr Percy remained alone in the courtroom and had no contact with the jury for the hour following its retirement. At 4.55pm he advised the jury to prepare to return to court to be discharged for the day.
At some stage during the jury’s deliberations the tipstaff to the trial judge was sworn as a jury keeper. During the course of the jury’s deliberations another County Court tipstaff, Andrew Percy, stood in for the trial judge’s tipstaff. In an affidavit sworn by Mr Percy, he deposes that when he commenced these duties, the court had reconvened so that the jury could view a DVD in the presence of the Court. At the conclusion of that viewing the jury returned to its room and the court was adjourned. Mr Percy remained alone in the court room for a little over an hour before he was instructed to request the jury to return to the court room which they
did. Following brief instructions from her Honour, the jury was sent home for the day.
It is not in issue that Mr Percy was not sworn as a jury keeper. It is also not in issue that in addition to the trial judge’s tipstaff, a second person, Fiona Jenkins, had also been sworn as a jury keeper and was available to perform those duties if the need arose. It was not disputed that Mr Percy’s only contact with the jury was to return them to the jury room after they watched the DVD and bring them back to the court room before they were sent home for the day. There is no suggestion that Mr Percy did other than usher the jury between the court and their jury room.
Section 49 of the Juries Act 2000
Section 49 provides:
If a jury keeper is required in a trial, the jury keeper must be sworn in the form of Schedule 4.
Section 49 thus mandates that a person required to discharge the functions of jury keeper must be sworn. The wording of s 49 is imperative. Other provisions such as s 29, which is concerned with the requirement that those summonsed to jury service attend, and s 42 which requires that the jury be sworn in, are also couched in imperative terms.
The oath set out in schedule 4 is in these terms:
…. that you will well and truly keep this jury and each of its members committed to your charge and that, except on the order of the court, while they are in your charge, you will not allow any of them to communicate with any other person, or any other person with any of them, whether directly or indirectly, and that you will not, either during the trial or after it has finished, communicate with any juror about any evidence given or issues raised, directly or indirectly, at the trial.
The appellant contends that as Mr Percy was not so sworn, a serious procedural irregularity occurred by reason of his replacement of one of the sworn jury keepers. The Crown contends that the Juries Act 2000 does not provide for the impeachment of a jury verdict by reason of non-compliance with s 49 of the Act. It contends that Mr Percy’s role did not give rise to any irregularity, presumably because he did not perform the function of a jury keeper during the period that he replaced the trial judge’s tipstaff. Alternatively, the Crown submits that if there was an irregularity nothing occurred which would give rise to a substantial miscarriage of justice.
The conduct and control of a jury in Victoria is governed by a mixture of statute and common law. In R v Chaouk[27] Kaye J said:
The Juries Act 1967, like previous legislation of the State of Victoria relating to juries, is silent about some matters concerning the conduct and control of jurors in the course of criminal and civil trials, and therefore the statute is not a code. It follows that, where the Act either expressly or impliedly makes no provision for matters concerning juries, the common law applies.[28]
However, Victoria, as did other States, by legislation introduced a jury system. Thus, the applicability of authority derived from pre-colonial common law may be limited.[29]
[27][1986] VR 707 (‘Chaouk’).
[28]Ibid 709.
[29]See Brownlee v The Queen (2001) 207 CLR 278, 286 [12] (Gleeson CJ and McHugh J) citing Herbert Evatt, ‘The Jury System in Australia’ (1936) 10 ALJ 49.
Historically juries were required to remain together until they had delivered their verdict. They were kept together by an officer of the court who was sworn to keep them and to allow no one to speak with them or speak with them himself without court leave, save to ask whether they had agreed.[30] Usually bailiffs, were sworn to the jury keeper’s responsibilities as early as 1686 – see the description given of the trial of Lord Delamere in Sir John Barry’s article ‘On the Segregation of Jurors’.[31] The same article contains a description of a historical keeper’s oath. This was taken from the 1796 trial for high treason of William Stone and is quite similar to the modern form of the oath:
[The] bailiffs were sworn well and truly to keep the jury, and neither to speak to them themselves, nor suffer any other person to speak to them touching any matter relative to this trial.[32]
[30]Hale, Sir Matthew History of the pleas of the Crown (Nutt & Gosling, 1736), Vol 2, 296; Archbold, John Archbold’s Pleading, evidence & practice in criminal cases (Sweet and Maxwell, 26th ed 1922), 218.
[31][1953] 6 Res Judicatae 139, 141.
[32]‘On the Segregation of Jurors’ 144 citing Howell, 25 State Trials 1295N.
Another example of a historical jury keeper’s oath described as the ‘oath to bailiff when jury retires’ can be found in F A Stringer, Oaths and Affirmations in Great Britain and Ireland.[33]
[33]Stephens & Sons Ltd, 3rd ed, 1910, 151.
In Victoria, it was not until 1993 that juries were allowed to separate.[34] If they are allowed to separate during deliberations, they must take an oath of separation which prohibits them from discussing any aspect of the trial with anyone other than members of the jury.
[34]Section 51A of the Juries Act 1967, which provides for the separation of juries, was inserted into the Act in 1993 by the Juries (Amendment) Act 1993.
The provision specifying an oath in Victoria first appeared with the introduction of the Juries Act 2000. No requirement to swear jury keepers appeared in any of the legislation governing juries between 1857 and 1997. Until then, the institution of the jury keeper was one rooted in the common law. There are no observations in the 1997 final report of the Law Reform Committee,[35] the explanatory memorandum or the Parliamentary Debates including the Second Reading Speech as to the purpose of the section. They are silent as to why such a measure required statutory codification.
[35]Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (1997).
In Chaouk Kaye J made some observations on the purpose of the keeper’s oath:
The first [irregularity] occurred soon after the keepers were sworn in the presence of the jury, the learned trial judge having invoked the jurors to listen to the terms of the oath about to be administered. That, it might be said, would have been sufficient to bring to the minds of the jurors the solemnity of their responsibility and the need for them to remain silent in the presence of any outsider … in any event, had the accused or a member of the public, who had heard the terms of the oath, witnessed the departure or arrival of three jurors unaccompanied by an officer of the court sworn to keep the jury together, he might have been pardoned for concluding that the procedure was a mere formality, notwithstanding that there was a risk of something having been said by a stranger to the jurors which was adverse or prejudicial to the accused.[36]
[36]R v Chaouk [1986] VR 707, 712.
The jury keeper’s oath is not a ‘mere formality.’ At least in part, it must be regarded as having an educative effect on the jury as to the proper standards of conduct they should observe. Further, the importance of strict compliance with mandated jury procedure was amplified in R v Abrahams & Bull,[37] a case concerned with how a court should deal with the exhaustion of the jury list before the jury was fully empanelled. As to the need to adhere to established criminal procedure, the court said:
Where the [Juries Act] has made provision on a matter the first question to determine is whether what is prescribed is mandatory or merely directory. If the former, the statutory direction must be obeyed on penalty of a mistrial. Moreover, it is of the highest public importance that no doubt or suspicion should be open as to the legality or fairness of the criminal trial. Even where the provision is merely directory it should be departed from only for the weightiest of reasons and in such a case the question of miscarriage may have to be considered on appeal.[38]
[37][1948] VLR 51 (‘Abrahams’).
[38]Ibid 52.
It was recognised that the question whether the provision under consideration was mandatory or directory[39] was to be determined by reference to the wording of the provision. However, it was also observed in Abrahams:
While there is no decision of this court on the question there are several decisions which seem to show that when questions of procedure in relation to the jury in criminal trials were before the court it thought the procedure laid down by the Act was mandatory. See R v Lee [1886] VLR (L) 225; R v Cadley [1918] VLR 162 and R v Loder [1896] 22 VLR 454. [40]
[39]Section 67 of the Juries Act 1928.
[40][1948] VLR 51, 53.
Each of the cases to which the Court referred were concerned with different and distinct areas of jury procedure. However, the statement in Abrahams should be taken to apply to jury procedure as a whole and remains as relevant to the present Act as it was then.
Consequence of non-compliance with an imperative direction
In Chaouk Kaye J discussed the circumstances in which a procedural mistake would rise to the level of a material irregularity. He referred to R v Alexander[41] and R v Dempster[42] where irregularities connected with the separation of a jury were not considered to vitiate the trial. Those decisions were in conflict with the principle outlined in R v Gay[43] which adopted the statements of principle outlined in ‘On the Separation of Juries’. Kaye J concluded that it was preferable to follow the line of authority descending from R v Ketteridge[44] that it is not necessary or relevant to consider whether the irregularity has in fact prejudiced the prisoner.[45] His Honour adopted the test stated in R v Hodgkinson[46] expressed in these terms:
[The] incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial.[47]
[41][1974] 1 WLR 422; [1974] 1 All ER 539.
[42](1980) 71 Cr App R 302.
[43][1976] VR 577, 582.
[44][1915] 1 KB 467.
[45]Chaouk 712 citing Ketteridge 470.
[46][1954] VLR 140.
[47]Ibid 156.
Fullagar J enunciated two questions which must be considered where there is a departure from a prescribed procedure. First –
[was] there a reasonable possibility that the jury was in some way influenced in arriving at its verdict against the accused person by reason of the unascertained period of unsupervised contact with the outsider, or by reason of any conversation or events which actually or might have occurred during that period? Unless the answer to that question was in the negative, I think the verdict of guilty would have to be set aside, whether one characterised the irregularity as major or minor, or serious or otherwise.[48]
Second –
[was] the present undoubted departure from contemporary common law requirements, as to the procedures for deliberating upon verdict after completion of the charge, to be so characterised in all its surrounding circumstances as one which itself constituted a miscarriage of justice irrespective of any conclusion upon what I have called the first question?[49]
[48]Chaouk 715.
[49]Ibid.
Later in his judgment Fullagar J restated the second question in these terms:
Vitiating [character] is shown where the departure from the accepted norm of the present day cannot be justified by even necessity or be justified as a reasonable and not unexpected consequence with the present day stage of relaxation of the old strict rules for segregation.[50]
[50]Ibid 716.
The incident in Chaouk was of such a character that it could not be said that no substantial miscarriage of justice had occurred. Strict compliance with the rules of procedure was considered necessary, Kaye J citing the judgment of Fullagar J in Mraz v The Queen.[51]
[51](1955) 93 CLR 493, 514.
Many of the procedural rules concerning juries are designed to safeguard jury deliberations from contamination. They serve a second function which is to prevent a perception that there has been any opportunity for improper communications with the jury. The importance of strict compliance with such rules was emphasised in Chaouk by Hampel J who observed:
It is not to the point that probably there was no improper communication between the taxi drivers and the jurors despite the opportunity for such communications which was openly and publicly created.
It is a fundamental importance that the basic rules pertaining to the criminal trial process should be strictly adhered to particularly in relation to jury deliberations.
The jury system and its operation are under constant public scrutiny. It is therefore essential to ensure only that no irregularities occur which may adversely affect jury deliberations, but also that no such irregularities appear to take place.
In the present case the irregularity occurred as a result of arrangements made by those whose duty it was to ensure that the accepted safeguards in fact operated. In those circumstances curial approval should not be given to such a departure from the rules and such an abandonment of the safeguards designed to isolate and protect juries during their deliberations.[52]
[52]Chaouk 717.
Where during the course of a jury’s deliberations a jury is kept together and is taken from the court or their jury room to some other place where there is an attendant risk that they will have contact with other persons, jury keepers will ordinarily be required and must be sworn in accordance with the Act. If those designated to accompany the jury are not sworn, a material irregularity will arise. Depending upon the circumstances, non compliance with this mandatory requirement may give rise to a substantial miscarriage of justice. But that is not the present case.
Although the jury was in the course of deliberations, it moved only between its jury room and the court during the material period that Mr Percy had assumed a court role in the trial. During that period he performed no function other than that of the court tipstaff. A jury keeper was not required during his period of duty.
In accordance with what is common practice of trial judges, the tipstaff and sometimes the associate will usher the jury between the jury room and the court, even during the course of the jury’s deliberations. They will communicate with the jury over a range of matters other than the issues in the case. They are able to convey communications received from the jury to the court or the judge.[53] They will pass on to the jury various directions of the trial judge such as when their attendance in court is required. They interact with the jury over a range of matters as part of the trial process. They are not, in doing so, performing any function of a jury keeper and are not sworn as jury keepers.
[53]Not all jury communications need be disclosed in court. See HM v The Queen [2013] VSCA 100 (Redlich JA, Kaye AJA).
Prudence may lead a trial judge to have his associate or tipstaff so sworn if there be any likelihood that the associate or tipstaff would need to escort the jury or any members thereof away from the precincts of the jury room and court during their deliberations.
Finally, even if by ushering the jurors between their jury room and the court during their deliberations, Mr Percy, as an officer of the court, was to be regarded as also performing a function of the jury keeper, the question would arise whether the evidence disclosed any reasonable possibility that the jury was exposed to any improper communication with anyone including Mr Percy, concerning an issue in the trial which might influence their deliberations. The court DVD was examined by the appellant’s legal representatives and it was not suggested before us by his counsel, that anything might have occurred that would give rise to a reasonable apprehension that that there had been any improper communication with any members of the jury. Therefore, had there been an irregularity of the nature alleged, no substantial miscarriage of justice could be said to have arisen.
Appeal against sentence
Following the appellant’s sentence on June 2011 after the first trial, the appellant reappeared before the sentencing judge on 1 December 2011 and he was re-sentenced to a different non parole period. The appellant seeks an extension of time within which to file a notice of appeal against that sentence. Although not recited in the proposed notice of appeal, if the appellant makes out his ground of appeal, it is contended that he must be re-sentenced with respect to each of the individual sentences, a new total effective sentence fixed and new non-parole period imposed. He seeks leave to appeal on the following ground:
The sentencing discretion miscarried on 1 December 2011 because –
(a)the appellant was denied knowledge of the basis upon which the Court of Appeal had determined that the judge should re-sentence the appellant;
(b)the appellant was denied the opportunity to make submissions on re-sentence;
(c)the sentencing judge erred in finding that s 412 of the Criminal Procedure Act 2009 empowered her to re-sentence the appellant.
It is necessary to say something of the sequence of proceedings in the County Court and the Court of Appeal. On 31 January 2011 the appellant was found guilty by a jury of sexually offending against a child under the age of 16 and was sentenced on 25 February 2011 to 6 years’ imprisonment with a non-parole period of 4 years. (The first conviction and first sentence).[54] On 24 March 2011 an application for leave to appeal against this conviction was filed with the Court of Appeal.
[54]Referred to above as the second trial.
On 7 June 2011 the appellant was found guilty by a jury on the present charges. He was sentenced on 29 June 2011 to a total effective sentence of 6 years and 4 months’ imprisonment. (The second conviction and second sentence)..[55] Because the appellant was already undergoing the first sentence, 2 years of the second sentence was ordered to be served cumulatively upon the first. Pursuant to s 14 of the Sentencing Act 1991 a new non-parole period of 6 years commencing from the date of the first sentence was fixed. On 27 July 2011 an application for leave to appeal against the first conviction was filed with the Court of Appeal.
[55]Referred to above as the first trial.
Subsequently on 24 October 2011 the Court of Appeal quashed the first conviction and remitted the matter to the County Court for re-trial. On 30 March 2012 the appellant was convicted on only one charge and was sentenced on 2 April 2012 to 138 days imprisonment which also equated with his pre sentence detention.
It is clear from the sentencing remarks on the second sentence that the sentencing judge stated that she took account of the fact that the appellant’s first conviction and sentence related to conduct which occurred subsequent to the offences the subject of the second conviction. That, in her Honour’s view, had ‘important ramifications for the sentencing exercise’ before her. Her Honour said:
[18]But further to the fact that you went on to sexually abuse another small girl in similar circumstances has ramifications insofar as my view of your prospects of rehabilitation are concerned. It may well be that you are a person who has otherwise remained crime free, has held down responsible paid work, and has to all other intents and purposes lived a thoroughly respectable life, however you have now been convicted of sexual offending against two little girls, both of them members of your wife’s family, both of them under the age of 10. Your actions in each case represented a gross breach of trust. In relation to each child you were given care of that little girl by her parents.
[19]Your actions in sexually abusing GS (the second conviction) and then going on to sexually abuse L (the first conviction) mean in my view that your prospects of rehabilitation, insofar as sexual offending against children are concerned is doubtful indeed. Additionally in each case you pleaded not guilty, you fought the charges, indeed your counsel in his plea before this court stated that you do not accept your guilt and regard yourself as innocent of these charges. Therefore in addition to concern the court must have about the fact that you going on to abuse another little girl, after you abused GS, regard must be had to the fact that you have displayed no remorse for your actions, and this also affects any review of rehabilitative prospects the court might take.
[20]There is no basis for this court, in my view, to find that you have positive rehabilitative prospects. Given as I have said that you went on to offend against another child, that you have in each case refused to admit guilt, and that you have disclosed no remorse, the court can therefore only regard your rehabilitative prospects as bleak. This has further impact on a sentencing exercise in that the issue of protection of the community in cases such as this looms large. In all the circumstances it is my view that you continue to present a danger to female children, and this is a matter I take strongly into account in sentencing you.
Later in the sentencing remarks her Honour again referred to the first conviction and sentence in these terms:
[25]… As I have said the offences are extremely serious and your actions in subsequently assaulting L, and in contesting every one of the charges laid against you in relation to your two victims speaks very poorly for your rehabilitative prospects, in my view, and highlights the need for me to impose a sentence which reflects the serious concerns a court should have in protecting the community from yourself. In sentencing I note that I sentence you as a serious sexual offender and I declare you to be a serious sexual offender.
As already stated, her Honour then ordered that two years of the second sentence be served cumulatively on the first sentence and a new minimum term pursuant to s 14 of the Sentencing Act 1991 was fixed which her Honour said was ‘sentencing for your offending both against L and GS’.
Because of the subsequent quashing of his first conviction and sentence, the appellant had to be re-sentenced on his second sentence. The grounds of appeal are directed to the erroneous way in which that was achieved. On 1 December 2011 the appellant reappeared before the judge who had imposed the second sentence. The judge noted that the Court of Appeal had quashed the appellant’s first conviction and sentence.[56] She stated that she had received advice from the Court of Appeal that she should now set a non-parole period in relation to the second conviction. A new non-parole period of 4 years was fixed.
[56]CMG v The Queen [2011] VSCA 416.
It appears that following the quashing of the appellant’s first conviction and sentence there were email communications between the solicitors acting for the appellant and the associate to the sentencing judge who had imposed the second sentence. There was also an email communication between an associate to one of the judges who was a member of the bench which quashed the appellant’s conviction and the sentencing judge’s associate. It appears that her Honour was advised that it would be necessary for her to recall the non parole period she had fixed and impose a non-parole period that related solely to the second conviction.
The sentencing judge listed the matter for hearing on 1st December for that purpose. The solicitor for the appellant submitted to her Honour that she doubted her Honour had power to make the proposed order. She submitted that under s 104A of the Sentencing Act, being the slip rule power, her Honour did not have the power to fix a new non-parole period. In reply her Honour said:
No, I have had advice from the Court of Appeal that they do not regard me as functus officio and that it is simply that the parole period cannot apply any more simply because of a change in the circumstances. So there’s – it’s not a question of slip rule or not slip rule. A new minimum must be set otherwise your client is stuck with a straight sentence.
Her Honour was then informed that the prosecution suggested that s 412 of the Criminal Procedure Act 2009 conferred sufficient power to enable her Honour to make the order. The solicitor for the appellant submitted that it was more appropriate that the matter should be considered by the Court of Appeal that was to hear the second conviction appeal. Her Honour rejected that submission stating that the Court of Appeal had specifically sent it back to her at the County Court in order for her to set a minimum sentence so that the sentence she now intended to fix would form part of the appeal. It appears that her Honour proceeded upon the assumption that the Court of Appeal would not be able to deal with the sentence unless she had first fixed a new minimum sentence. Her Honour then said:
It is my view under s 412 that I have the power to amend the sentence and I should amend the sentence because of the effect of the successful appeal in relation to the other matter for which your client was already serving a sentence when he appeared before me, as a result of which I was therefore obliged to set a new minimum. That appeal has been successful and we are now left in a situation where your client has a straight sentence. It seems to me in those circumstances s 412 grants me the power to do this. I do not accept your submission that this is a matter I should simply leave before the Court of Appeal. The Court of Appeal is entitled to deal with a properly constructed sentence from the County Court to consider if the appeal against conviction is not successful and [you] sic then have to turn its collective mind to the issue of sentence. It would be in my view a ridiculous situation that they would be looking to deal with a straight sentence – it would be particularly when there is power in the Act to do that. It simply means that when the time comes for the Court of Appeal to consider the sentence, that it is dealing with a properly constructed sentence as it should. The Act gives me the power to do that in all the circumstances it seems to me entirely inappropriate that I simply leave matters in abeyance because your client has chosen to appeal against the conviction and sentence in relation to the matter that was before. … Having considered the matter and having considered the matters that were put before me on plea, it is my view that an appropriate minimum term in this matter is 4 years.
On the appellant’s re-trial on the charges which had been the subject of the first conviction, he was found guilty by a jury on 30 March 2012 on only one of the four charges on which he was indicted and was sentenced to a total of 138 days’ detention which was to be served concurrently with the second sentence that he was then serving.
The appellant first submits that if there was a power to re-sentence on 1 December 2011 both the head sentence imposed on 29 June 2011 and the new non-parole period imposed on 1 December 2011 are the subject of complaint. As the sentencing remarks set out above demonstrate, her Honour’s findings as to remorse and her view of the appellant’s prospects of rehabilitation were significantly affected by the fact that the appellant had been convicted and sentenced for subsequent sexual offending against a child under 16. Second her Honour had sentenced the appellant on the first two charges on the basis that he was a serious sexual offender as a consequence of his first conviction and sentence. Thus it was submitted that in re-sentencing the appellant he was not to be treated as a serious sexual offender with prior convictions whose prospects for rehabilitation were bleak. It was submitted that her Honour’s failure to hold a further plea hearing denied the appellant an opportunity to make necessary submissions on re-sentencing. There was thus want of procedural fairness. It was further submitted that the sentencing judge had no power to re-sentence under s 412 as it was only procedural in nature. No other power was available as her Honour was functus officio. Either because of want of power or procedural fairness it was said that the sentencing discretion had miscarried and that this Court should re-sentence the appellant according to law.
In its written case the respondent supported the course followed by the sentencing judge on 1 December 2011. It was submitted that the record required amending as the non-parole period that had been fixed no longer accorded with the Sentencing Act 1991. As the individual sentences imposed were said to be within the permissible range there was no necessity for the sentencing judge to reconsider the individual sentences or head sentence. Her Honour had power to fix a new non-parole period pursuant to s 412 of the Criminal Procedure Act 2009 or under the inherent jurisdiction of the County Court, it being the court of record.[57]
[57]Citing R v Saxon (1998) 1 VR 503, 507-8.
The Crown contended that s 412 permitted the amendment of those substantive or formal defects or errors by codifying the ‘slip rule’ for criminal proceedings. As the non-parole period had become defective in both substance and form the sentencing judge could supplement her original sentence through the exercise of s 412. It was said that Scerri v The Queen[58] and Zanfirescu v The Queen[59] endorsed the use of s 412 to cure such errors arising from incorrectly declared pre-sentence detention. Reliance was also placed on observations by Maxwell P, said to be obiter dicta, in DPP v Dickson[60] that s 412 might be used as a means of ‘varying’ a sentence. When exercising the power under s 412 the sentencing judge was not required to hear further submissions. This followed, it was submitted, from the decision of the Full Federal Court in Jovanovic v The Queen[61] that the application of s 104A of the Sentencing Act 1991 did not necessitate a hearing in open court nor did it require submissions from any party unless it was considered desirable in the interests of justice. Thus it was submitted a similar position applies when the powers under s 412 are exercised.
[58][2010] VSCA 287.
[59][2012] VSCA 157.
[60](2011) 32 VR 625, [43].
[61](1999) 165 ALR 6, [49].
It follows from what is set out above that her Honour’s concern was not about the address concerning the 13th birthday party as such but the comment made by counsel that ‘Would there be a, do you think, if anything of this is true he might duck out the back and try to ingratiate himself with one of her mates.’
Counsel said that he was trying to construct an argument based on what the jury might think was in the complainant’s mind. The comment made, however, was the equivalent of saying that the appellant was not a person of the kind who would have behaved as alleged because he did not offend against other girls at the 13th party in public some years after he was alleged to have abused the complainant.
The question of the complainant’s state of mind was not put here, nor were any questions as to how the party came to be held at the appellant’s house were put to any of the relevant witnesses.
In the discussion counsel seemed prepared to accept that the comment in the way it was put by him was not appropriate. Although there was further discussion about the ‘grooming’ comments. All her Honour did on the particular subject was to warn counsel to be careful. Counsel was not prevented from developing his argument about the 13th birthday party although her Honour made it clear she would be marking a remark about it in her charge.
It was in that context that her Honour made the comments as set out above. The comments with the possible exception of the comments about how sex offenders might behave resulted directly from counsel’s address. I do not accept that the comments were unjustified. The comment about how sex offenders behave was merely an illustration of what would amount to speculation and although not particularly desirable, I do not believe it could have mislead the jury. The same can be said for the passage which followed about grooming.
I would dismiss the appeal.
The Second Trial
With respect to the second trial, leave to appeal was granted on the following grounds:
1. The guilty verdict of the jury is inconsistent with the verdicts on the remaining charges.
2. The verdict is unsafe and unsatisfactory.
In light of the grounds of appeal, it is convenient to first set out the evidence given.
Evidence at Trial
LS, the complainant, first gave evidence via a VATE tape recorded on 29 January 2009. She said that she went over to the appellant’s house and they listened to music. Then the appellant was on the computer and was showing LS pictures of girls naked on the internet around her mother’s age. LS said that the appellant told her to keep it a secret.
They then played a game of Sleeping Beauty. LS went into Tilly’s bedroom and lay on the bed with her eyes shut. The appellant came to find her, sat on the bed, leaned over and gave her an ‘open mouth’ kiss on the lips.
Following on from this, they then played a game called ‘Operations’ where the appellant stuck fake bandaids on LS’ stomach, looked for moles, pulled her pants/skirt down, touched her vagina and digged into it with his fingers and she felt a pinch on either side of her vagina, LS then turned over and the appellant looked for moles on her back. He kissed her once more and also told her to keep this a secret as well. The appellant and LS then took the appellant’s dog to the vet.
LS gave further evidence at a special hearing conducted on 1 February 2011. In relation to the pornographic images, she said that either the appellant had received a message or typed something in to Google to bring up the images, however she wasn’t sure which one. She said the women in the pictures were between the ages of 7 and 25.
In relation to charge 2, she said that it was an open mouth kiss and not a peck and that only husband and wife do open mouth kisses. She said the reason she didn’t tell anyone sooner about the open mouth kiss was because she was embarrassed about it. She wasn’t sure whether it happened on the appellant’s bed or on the appellant’s daughter’s bed. At times in the special hearing, the complainant wasn’t sure if she had been kissed or when she had been kissed. At other times, she was quite definite that it occurred whilst playing Sleeping Beauty.
The first time she told her sister about the kiss was on the Friday, two days after it had occurred. The following day on Saturday was when the complainant first made mention of the images the subject of charge 1.
With respect to charges 3 & 4, the complainant said that she hadn’t told anyone about that offending, including the police in their initial meeting on the Sunday because she had been too embarrassed. But she did tell her sister that night on the Sunday about the removal of the skirt and underwear. And it was either then the following day or the Tuesday when the complainant first told her sister about the penetration.
In the special hearing, the complainant was cross-examined about her description of being touched ‘around my private parts’ and ‘in my private parts’, she was taken to the part of her VATE tape where she shows on a teddy bear the movement she says the appellant did to her with his fingers. She also stated that it was done with two hands.
The appellant did not give any evidence at the trial. In his record of interview he said the following.
With respect to charge 1:
I gave her the tour of the house because she hadn’t been there before and I knew she’d be pretty keen to see, you know, Tilly’s room. It’s pretty. There was – the computer was on the kitchen bench, where I’d been on it previously. After I’d given her the tour, I didn’t quite know what to do with her, so I ended up sittin’ on the computer and, at the time, I think – I can’t remember exactly what the file was or – but there was a file with pictures on it, some of which I didn’t recognise and she was over my shoulder looking – looking at these as well and, you know, I was just flicking through them and I just said, “Do you know these people?” and there was some of the m I didn’t know and she said, “No, no.” I thought she’d recognise people like my niece but yeah they don’t sort of work in those circles, so she didn’t know who it was and it was my niece [GS] that was on there. I think it partially was – it was just a mixture of photos. I’m not sure exactly what they were. I think they were in a ‘to be sorted’ file, so stuff that are just, you know, junk and that, I just – I try and keep every photo I’ve ever taken and then sort it out and put it into a correct folder, so I think it was just an assortment of stuff. On there, there was – there was a couple of – one – I can’t even remember how many. I think there might have been – I can definitely remember one nude shot, so of a naked person, and there might have been a couple of scantily clad people in there as well. I can’t remember. To be honest with you, I don’t know. But I did apologise to her.
…
The one picture that I do remember – I don’t – it’s not of a person that I know. There was – she was fully naked. Just standing, she was standing up, fully naked.
…
It was a nude shot. It wasn’t – I wouldn’t say …a pornographic shot, as in, you know, she got, you know, legs everywhere and in a .. position that would indicate anything.
…
She was white. I think she had braces. I think I saw. I can’t remember the hair colour. A large breasted woman, yeah. Yeah. So that was the only naked one but there also were other photos of – I think they were celebrities. Kate Hudson, I think, might have been among them. I don’t know if she was naked or just might have been a … something see through on… I think there was only a couple of those and I just sort of flicked straight through them. I think the majority of them were family type photos.
…
Q Okay. And do you think you should have kissed her while playing the Sleeping Beauty game?
A Obviously no but I never saw that as a drama.
Charge 2:
And then after that, it was her turn, so I went down to the kitchen and she was like a – it’s like a hide and seek sort of thing, so I had to find her and I found her in – in Tilly’s room, on – laying Tilly’s bed and same deal, I had to find out what woke her up and I think I just – I think I might have just ticked her and I did kiss her because it was a Sleeping Beauty game. It was not a passionate kiss of any sort. It was just a peck. Yeah, and it was just a tickle on the – on the stomach and under the arms and that kind of thing and she woke up and then I said to her, “Look, this is probably silly,” and I start-, I did think this is probably not right. I think I might have even said to her, “This is not right,” and that’s when I decided okay, we better go early and we went and picked up – we jumped in the car and picked up my daughter.
…
I knew she was ticklish on the stomach, most kids are, and I think, yeah, on the sides, stomach and she – she was sort of laughing but not waking up, so I thought okay, I know what will wake you up and I gave her a kiss, a little kiss on the – on the lips and then I tickled her underarms and then she laughed and woke up.
…
It was not a passionate kiss. It was a peck. Something you’d do to your grandmother. There was no – there was nothing in it. It wasn’t an open-mouth kiss. It was a closed mouth kiss and it lasted for a micro second.
Charges 3 & 4:
I’d forgotten about that one. That was at the park – no – yeah. Actually that was in the bedroom as well. So that was at – we played that game as well as the Sleeping Beauty Game.
…
Q During the game Operation, she states that her pants were pulled down and that you looked for moles … on her body. Do you have any comment to make in relation to that?
A I made the comment about some moles she did have, yes, on her midriff, an exposed area. So an exposed area of her skin. Yes, I made comment.
Q Which area was exposed?
A Her midriff, her legs, arms, above her singlet, sort of thing, her head.
…
Q There’s more mention here that her pants were pulled down to about her mid-thigh area and her – and her private parts were touched.
A Is this at my house?
Q Yes. On Tilly’s bed.
A Yeah
Q Do you have any comment to make in relation to that?
A Yeah. Untrue.
The appellant then further denied any of the conduct alleged in charges 3 and 4. He made a further comment regarding his behaviour on the day:
Only to say that although my behaviour was not appropriate probably, but it was certainly not illegal. I didn’t do anything illegal. Yeah. I don’t know. It’s – I don’t – look, I don’t know. They’re untrue. What – what – if she said those – that I – I did those, they are untrue. If they happened or not, I don’t know but for me, I did not do those things.
Q Do you think you should have taken [LS] back to your house without anyone else being there?
A No. Now, no.
Evidence was also given at the trial by the complainant’s sister and mother, the informant, the officer conducting the VATE tape and the doctor who examined the complainant.
LS, the sister of CS, gave evidence that on the Friday CS had told her that the appellant had kissed her on the lips while they were playing Sleeping Beauty. CS then told her on the Saturday about playing the game Operations. On the Sunday night CS had two discussions with LS. In the first discussion LS told her that the appellant had pulled her pants down during the Operations game. And in the second conversation which occurred not long after CS told her that during the game the appellant dug into her and pointed down towards her lower region.
Evidence was led from Detective Leading Senior Constable McFarlane who had noted in her police book a conversation she had had with the complainant’s mother on the phone whereby CS had said that she had asked LS if her pants had been pulled down and that LS had said that they hadn’t. This phone call was said to have occurred on the Saturday.
The mother of the complainant also gave evidence at the trial and amongst other things denied ever saying the above comment to the police officer or that CS had said anything along those lines to her.
Grounds of Appeal
The appellant submitted that given the verdicts of not guilty on three of the four charges, the jury must have dismissed the complainant as being unreliable and therefore could not have safely and satisfactorily returned a guilty verdict on charge 3.
Further, it was submitted that charges 2, 3 and 4 were so intertwined as to be one indivisible and discrete course of conduct that charge 3 could not be separated from charges 2 and 4. Although in argument before us counsel conceded because of the way the jury were directed by the learned trial judge, the verdicts on charges 1 and 2 were explicable.
It was also contended that the guilty verdict was a compromise verdict.
The respondent contends that each charge was to be considered separately and that a verdict of not guilty on one charge does not mean that the jury had to assume that all of the evidence given became unreliable. It would only mean the jury were not satisfied beyond reasonable doubt of one or more of the elements of an offence had been proven.
Charges 1, 2 & 4
His Honour made it very clear for the jury in his charge that the appellant could only be convicted on charge 1 if the jury were satisfied beyond reasonable doubt that the appellant had intentionally showed LS at least four pornographic photographs comprising of two females and two girls on the computer:
We will deal with Charge 1 first and the situation is that the Crown opened and alleged that Charge 1 was of showing [LS] pictures of "naked girls and women" she described as being her mother's age. These are directions of law. Before you could convict of that charge you would have to be satisfied of at least four photos. That is because the allegation is one of naked girls and women, plural. At least four. Two of which were girls and it is a matter for you what you make of that. But two of girls and two of women the mother's age.
This was further coupled by His Honour saying later in the charge:
It was not until last night when I was going through the special hearing tape again that I quite realised the significance of this. I had thought it was something that [CS] had just reported. But [LS} said that the photos were of people between 7 and 25. And that was an age, not a number.
….
Now that is, I can tell you as a matter of law, by definition, child pornography.
Now, you have heard, and it is the reason it is lead, his computer was seized and there was not. So what you get is evidence form the police, we do not say, “We don’t know,” or “We didn’t look hard enough” or anything. They are saying, “No. That computer did not have on it –“ and child pornography is under 19, by the way. It was not there.
It is unsurprising in light of the directions given that a verdict of not guilty was returned on this charge.
With respect to charge 2, his Honour said the following:
Charge 2 was particularised as, "kissed her on the lips with an open mouth." You would have to be satisfied beyond reasonable doubt of a kiss and there is no dispute comment from me, no dispute about that, that there was a kiss on the lips as I understand it. That I am telling you as a matter of law in this scenario, could not be indecent unless it was an open mouthed kiss. Anything short of that cannot as a matter of law, be indecent in this scenario.
…
You would have to be satisfied, before we get any further, that the kiss was significantly or substantially open-mouthed, and as I have just indicated, that it involved a sexual connotation and that the aspects of it which might give rise to indecency are deliberate, intentional. Now you will have to think that one through pretty carefully in that scenario.
…
Cannot be guilty unless it is an open-mouthed kiss, and even if it is, that is a matter for you, whether an open-mouthed kiss, whatever that means, is indecent by community standards in those circumstances, bearing in mind it is a criminal trial.
In following the judge’s directions, the jury by virtue of returning a not guilty verdict on this charge, were not satisfied that the open-mouthed kiss was significantly or substantially open-mouthed or that it involved a sexual connotation that gave rise to indecency.
On charge 4 the jury were told:
If you were of the view that there was touching of the vagina but you were not satisfied that there was actually penetration, he would have to be acquitted, because it is not an indecent act charge. The Crown say this might well have been an indecent act but this has gone further than that, the Crown say it has gone too far, they say through [LS] that is what he said at one stage – it is penetration.
What you have to understand as a jury is that once it is elected to go as penetration, that is what must be proved.
As submitted by the respondent, it has to be assumed that after having assessed the evidence of the complainant the jury did not believe penetration had occurred or were not satisfied beyond reasonable doubt that penetration had occurred. They may well have concluded that offending other than penetration had taken place but that was not a conclusion which could have led to a conviction.
In examining all the evidence and the directions given, it does not follow that the verdicts on charges 1, 2 and 4 are inconsistent with one another or for the reasons which follow are inconsistent with charge 3.
Charge 3
The question then remains as to whether there was a basis for the conviction on charge 3 and this in turn relates to ground 2 of the appeal being that the guilty verdict was unsafe and unsatisfactory.
The appellant submitted that the denial by the complainant to her sister of the removal of her pants by the appellant and the ‘evolving embellishment of the account of the complainant’ over a series of days of what occurred rendered the verdict unsafe. Further, it is submitted that the five questions asked by the jury on their fifth day of deliberations possibly showed that the jury may not have been properly applying the law and in that circumstance, the verdict could not be considered safe.
The respondent submitted that the verdict is not unsafe or unsatisfactory in light of all the evidence that was given by the complainant, the appellant in his record of interview and the directions given by the trial judge warning the jury about the denial of charge 3 occurring and the ‘evolving embellishment of the account of the complainant’.
Once the jury had commenced their deliberations, the jury asked the following questions:
a)If [counsel] was heard to say the family knew about the kiss on the Wednesday night how do we deal with that as evidence?;
b)If [counsel] was heard to say that CS influenced LS and asked her if [the appellant] ‘fingered her’ how do we deal with that as evidence?;
c)If we heard a discrepancy in the evidence of the key witness LS, and the supporting witness CS, does that discredit all their evidence?;
d)Can you clarify what you originally said in detail about how there was not enough supporting evidence to convict on charges 3 and 4?
e)Where do we get the evidence from that would enable a guilty or not guilty verdict on charges 3 and 4?
This led his Honour to conclude that the jury or some jurors or a juror had not understood his direction and he further directed the jury. They were directed again that there was no supporting evidence in relation to this charge and charge 4. In relation to charge 3 it was a matter of whether they believed beyond reasonable doubt the evidence of the complainant that her skirt and her underwear had been pulled down. The trial judge gave an initial extensive direction as to the caution that needed to be used when assessing the evidence of the complainant and this was re-stated in the re-direction.
I do not regard this case as being analogous with LLW v The Queen.[105] In LLW the jury were having trouble with reaching a unanimous verdict on a charge of rape. After having been directed in the judge’s charge as to the manner in which a jury must approach the consideration of alternative verdicts, they were then given conflicting directions later on once they had commenced deliberations. These conflicting directions clearly left the jury in a state of confusion.
[105][2012] VSCA 54.
In this case the questions that can be identified as being linked with charge 3 were connected to the direction given about there being no supporting evidence in relation to charges 3 and 4.
What is more, as counsel and the trial judge observed about the questions:
PROSECUTOR: Now, I think the problem seems to be the lady who wrote out the question - - -
HIS HONOUR: Well, that's - - -
PROSECUTOR: - - - and we know that she is - what her qualifications were, she's an academic.
HIS HONOUR: Yes.
PROSECUTOR: And they're all looking at her. Now, what troubles me is that there'd only be one person who is asking all this sort of questioning. The majority may or may not have made up its mind and that's what troubles me
and that's why I am now becoming concerned, as Your Honour is, that perhaps it ought to be a Black warning and a majority verdict.
HIS HONOUR: Well, no, I'm not going to do that until they tell me they have - I wouldn’t want to offer a - I understand what you're saying and instinctively I think you're right, I don't know, but instinctively I think that's right but I don't want to be giving Black exaltations until they say they're in trouble and I don't want to be giving majorities until I've done a Black exaltation.
It does not appear that the judge considered the jury to be in such a state as the trial judge did with the jury in LLW. Whilst the judge expressed concerns as to the questions asked by the jury, his Honour concluded that all that was needed was to urge the jury to use extreme caution when assessing the evidence of the complainant. Once the re-direction had been given, the jury returned with a verdict the following day with there being verdicts of both guilty and not guilty.
With respect to the denial by the complainant to her sister about her pants not being pulled down. The only evidence of this came from the police officer and her notes of a phone call she had had with the family on the Saturday. Neither the complainant nor LS was asked about the denial when giving evidence and indeed both of their evidence, which was strongly contested, was that CS had said that her pants had been pulled down.
When assessing whether a verdict is unsafe and unsatisfactory, it is necessary to examine all of the admissible evidence against the appellant and then consider whether it was reasonably open for the jury to be satisfied of the guilt of the appellant.[106]
[106]M v The Queen (1994) 181 CLR 487.
In examining all the evidence, much of which has been canvassed above, I am not satisfied that the guilty verdict on charge 3 is unsafe or unsatisfactory nor is it inconsistent with the three not guilty verdicts, in particular with charge 4.
For these reasons, I would dismiss the appeal against conviction.
There is an appeal against sentence relating to the first trial and since the appellant had been sentenced by her Honour Judge Gaynor taking into account the sentence imposed by her Honour Judge Sexton in a number of ways, it was conceded by the respondent that the appellant would fall to be resentenced if his appeal against conviction is unsuccessful. I have had the advantage of reading Redlich JA’s draft reasons and I agree that the extension of time should be granted, leave be given, the appeal against sentence be allowed and the appellant be re-sentenced as proposed by his Honour.
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