David Gillard Cook v The Queen
[2014] VSCA 220
•11 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0176
| DAVID GILLARD COOK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2014 |
| DATE OF JUDGMENT: | 11 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 220 |
| JUDGMENT APPEALED FROM: | R v Cook (Unreported, County Court of Victoria, Judge Mullaly, 20 September 2012) |
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CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of committing an indecent act with a child under 16 and acquitted of seven other sexual offences –Credibility of complainant's evidence – Whether conviction is unsafe and unsatisfactory – Appeal allowed – Conviction quashed and judgment and verdict of acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Ms S M K Borg | Mr C Hyland, Solicitor for Public Prosecutions |
OSBORN JA:
PRIEST JA:
BEACH JA:
Introduction
Following an 18 day trial in the County Court, by majority verdict a jury convicted the appellant of committing an indecent act with a child under 16 (charge 1). The jury, also by majority verdict, found the appellant not guilty of seven further charges — three of committing an indecent act with a child under 16 (charges 4, 6 and 7), and four of sexual penetration of a child under 16 (charges 2, 3, 5 and 8). ‘MBV’, who had been charged jointly with the appellant with respect to charges 6, 7 and 8, was also acquitted on those charges.
By leave granted by Nettle and Neave JJA on 23 May 2014, the appellant has appealed on the following ground:
1. The conviction on charge 1 was unreasonable in light of the acquittals on charges 2, 3, 4, 5, 6, 7 and 8.
For the reasons that follow, we would allow the appeal, quash the conviction and enter a judgment and verdict of acquittal.
Factual background
The complainant, ‘KPR’, was born on 7 March 1996. During the period embraced by charge 1 — 1 January 2009 to 31 December 2009 — she was aged 12 to 13 years. Throughout the period in charges 2 to 5 — 20 December 2009 to 11 February 2010 — she was aged 13 years. And in the period alleged in charges 6, 7 and 8 — 11 February 2010 to 26 April 2010 — she was aged 13 to 14 years.
The appellant was born on 14 December 1963. He was aged 46 to 47 years during the period covered by the charges.
MBV, the appellant’s co-accused on charges 6, 7 and 8, was aged 17 to 18 years in the period when the offences were alleged to have occurred.
KPR’s initial complaint to police was made when she was visiting her father in Sydney. She participated in an ‘ERISP’ interview with NSW police on 1 February 2011, which was led by the prosecution on the appellant’s trial as part of her evidence in chief. KPR also gave evidence at a special hearing prior to the commencement of the trial on 23 November 2011, and gave evidence in the course of the trial on 6 September 2012.
KPR’s mother, ‘TRS’, gave evidence in the defence case. She said she met the appellant in late 2008, and started a relationship with the appellant in early to mid-2009. In approximately August 2008 she moved to Inverleigh.
Charge 1
In the ERISP interview, KPR said that for the previous two years the appellant had been continuously touching her breasts and vagina. About a year and a half to two years ago, when she was 13 years of age, the complainant, her mother and the appellant stayed at a property near Nagambie. KPR said she stayed by herself in a caravan on the property and her mother and the appellant stayed in a tent. She said that she was in the caravan getting ready for bed when the appellant came inside and ‘just grabbed [her] boob and walked out’. She said ‘[he] just put his hand inside and grabbed it and looked at [her] and then looked up and [she] got freaked out and didn’t know what to do’. The appellant grabbed her left breast (charge 1 — indecent act with a child under 16). KPR was ‘pretty sure’ the three went home to Inverleigh the next day. Significantly, in her evidence on the special hearing, KPR said that she wanted to ‘clarify’ what she had told police in the ERISP. Initially she had said that she slept in the caravan, and that her mother and the appellant slept in the tent; but ‘[i]t was actually the other way around, they slept in the caravan and [she] slept in the tent’. This was a considered change made in accordance with a note made prior to the hearing.
Charges 2 to 5— verdicts of not guilty
Charges 2 to 5 also arose out of what KPR had told police in the ERISP. On one occasion, she and the appellant were home in their house at Inverleigh. Her mother was at work. She and the appellant went to her bedroom. The appellant put his fingers into her vagina (charge 2 — sexual penetration of a child under 16); licked her vagina (charge 3 — sexual penetration of a child under 16); touched her breasts (charge 4 — indecent act with a child under 16); and put his penis inside her vagina (charge 5 — sexual penetration of a child under 16).
Charges 6 to 8 — verdicts of not guilty
The events constituting charges 6 to 8, which were said to involve the co-accused, MBV, were also described in the ERISP. KPR said that on another occasion in the home at Inverleigh, she was in her bedroom with the appellant and MBV. She and MBV were lying on the bed. MBV was touching and sucking her breasts (charge 6 — indecent act with a child under 16) and kissing her, while the appellant was telling them what to do. The appellant was standing on the edge of the bed. He placed his leg up on the bed and made KPR play with his penis (charge 7 — indecent act with a child under 16) and suck it (charge 8 — sexual penetration of a child under 16). KPR said she thought the incident occurred ‘like about around like [sic] February, March, April’ of the previous year, 2010.
Complaint evidence?
Between July 2009 and May 2010, Kristen Hill lived in a flat in Bannockburn. KPR’s grandfather was her neighbour. In December 2009, KPR told her that ‘[the appellant] had touched her breasts’. KPR was in her flat when she said this. When, in cross-examination by the appellant’s counsel, it was put to Ms Hill that KPR had told her that ‘she was sitting on a couch’ when her breasts were touched, Ms Hill replied, ‘I thought she may have but I can’t be a hundred per cent sure of that’.
Further, when specifically asked in the course of the ERISP, ‘Who have you told about the camping time?’, KPR said ‘no-one’.
The beginning of police interest
‘JP’ was KPR’s father. He was separated from KPR’s mother and had moved to Sydney in 2010. KPR visited him in late December 2010. She was due to return to Victoria on Australia Day 2011, but she did not want to go. KPR told JP that she ‘didn’t feel safe at home’, ‘she felt that her mother didn’t cuddle her’ and her mother did not understand her. On 29 January 2011, KPR told him that ‘quite often’ the appellant ‘would fondle her breasts’ and ‘touch her down there’. She also told him when driving her to Churchill Island the appellant ‘had made her go down on him or give him sort of like a hand job in the car … and that he made her give him oral sex and that he came in her mouth and it made her gag’. The complainant told her father that she could not tell anybody, including her mother or grandparents, about what had happened. She was in tears and he had to comfort her. He took her to the police station the next day, 30 January 2011. JP also said that KPR told him that the appellant and MBV ‘had tried to do some sexual things to her in a room of the house, by way of touching her up and making her do things to them in another room of the house when her mother wasn’t around’.
In cross-examination, JP agreed that he asked his daughter, ‘Has someone done something to you?’ and she replied, ‘No’. It was only after he later asked her, ‘has [the appellant] ever done anything to you?’ that she made any allegations. Sometime later, KPR’s mother told him that KPR ‘had been in trouble over sexual matters’. KPR’s mother’s solicitor sent JP portions of ‘very explicit Facebook conversations’ that KPR had been having with a number of boys. JP subsequently went into KPR’s Facebook account looking for explicit messages and made KPR cancel her account.
Other prosecution evidence
In 2009, Richard Anchen lived at a property in Nagambie owned by his mother. On the property there was a caravan and a tent under a shed. He had known the appellant since they were teenagers, and the appellant and KPR’s mother used to visit Mr Anchen on the property. On one or two occasions they brought KPR with them. On an occasion during summer in 2009, the appellant, KPR’s mother and KPR stayed overnight.
Keira Thorne knew JP through an ex-girlfriend of his whom she met in 2007. In December 2007, Ms Thorne met KPR at a scout function in Strathfieldsaye. KPR told her that her step-father or mother’s partner ‘had been abusing her’. Ms Thorne had not met the appellant or KPR’s mother. KPR did not tell her the name of the person who ‘had been touching her’.
Evidence in the defence case
The appellant denied any sexual wrongdoing. He gave evidence that he met KPR’s mother at the end of 2008 or early 2009, and met KPR ‘a couple of months after’. His evidence was that he developed a relationship with the complainant’s mother in the middle of 2009. He said that he visited Mr Anchen’s property in Nagambie a number of times with KPR’s mother. On two occasions KPR came with them. KPR stayed overnight at the property with the appellant and KPR’s mother on one occasion ‘probably around October’ 2009. She stayed in the caravan and the appellant and her mother stayed in the tent. The appellant said it was untrue that he touched KPR on her breast in the caravan when she was going to bed.
So far as MBV was concerned, the appellant had known her and her family for ‘approximately ten years’. In the period from mid-2009 to the end of 2010, the appellant could not recall ever entering KPR’s bedroom with KPR. During that same period, the appellant could not recall ever entering KPR’s bedroom with MBV.
As we have said, KPR’s mother gave evidence that she met the appellant in late 2008, and started a relationship with him in early to mid-2009. In approximately August 2008 she moved to Inverleigh. TRS had been to Mr Anchen’s place in Nagambie a number of times. She said that KPR had been there twice and had stayed overnight once. The time that KPR stayed overnight was in May 2009. TRS said that KPR slept in the caravan and she and the appellant slept in the tent. She did not recall the appellant ever entering the caravan when KPR was going to bed. The appellant, she asserted, did not have any opportunity to go in there. TRS said that even when KPR was inside the caravan watching movies, she was directly outside the caravan in front of the fire. The appellant was not walking in and out of the caravan.
TRS said that in late January or early February 2010, she and KPR went to a see a doctor in Geelong about KPR’s thrush. During a conversation with TRS, KPR nominated a few boys who may have played a part in her contracting thrush. She did not nominate the appellant. Further, she said that when KPR was in Sydney in January 2011 staying with her father, she found sexually explicit messages on KPR’s school computer. TRS provided the sexually explicit messages to her solicitor who then forwarded them to JP in Sydney.
‘JH’ is KPR’s grandmother. She gave evidence that KPR stayed with her during the school holidays in December 2010. They discussed family issues. KPR expressed no dislike for the appellant. She did not indicate that she had been ‘sexually molested’ by the appellant.
Submissions on the appeal
In written submissions, counsel for the appellant submitted that the verdict of guilty on charge 1 ‘is unsafe in that it is inconsistent with the acquittal on all the remaining charges’. On the hearing of the appeal, it was made clear that it was contended that the verdict is unsafe and unsatisfactory. It was submitted that rather than there being logical inconsistency,[1] the acquittals on charges 2 to 8 necessarily involved the rejection of KPR’s evidence. There was, it was argued, no proper basis upon which the jury could have accepted her evidence in relation to the first charge, but have rejected her evidence on all remaining charges, notwithstanding the ‘complaint’ to Ms Hill. Moreover, there was evidence that undermined KPR’s credibility and reliability, including her changing her evidence as to where she slept at the Nagambie property; her evidence given in unrelated proceedings in which she told the court that her step-father had touched her breast in 2007 and that this was the appellant (when in fact the appellant and KPR’s mother had not met until 2008); and the evidence of lack of opportunity to commit the offence in charge 1 given by KPR’s mother. Ultimately, it was submitted that the verdict on charge 1 had the flavour of illegitimate compromise.
[1]In the sense contemplated in MacKenzie v The Queen (1996) 190 CLR 348, 357.
The respondent’s counsel submitted in writing that whether or not the acquittals necessarily involved the rejection of KPR’s evidence depended on ‘the live issues in respect of each charge and the evidence in respect of them’. It was pointed out that the jury were directed that there should be separate consideration of the charges; that they were given an appropriate direction on the appellant having given evidence (and in particular that they could not find him guilty simply because they rejected his evidence); that they were instructed that in order to convict on any charge the jury needed to accept the complainant’s evidence beyond reasonable doubt; and that they could ‘reject an accused’s account but not be satisfied beyond reasonable doubt of the complainant’s account’.
Counsel for the respondent argued that the complainant had considerable difficulty in establishing the date on which charges other than charge 1 occurred. This might have created a reasonable doubt in the jury’s mind as to her reliability concerning charges 2 to 8, whilst the jury might still have accepted her as a substantially truthful and reliable witness. The distinction with charge 1 was that the stay at Nagambie was confirmed by other evidence and there was comparative certainty about it. There was evidence independent of the complainant from her mother which supported her presence at the Nagambie property (although in the same breath it was submitted that the evidence of KPR’s mother as to lack of opportunity on this occasion to commit the offence could easily have been rejected by the jury).
The principles
The principles which govern the resolution of a complaint that a verdict is unsafe and unsatisfactory are well-known. Recently, in SKA[2] the High Court considered the task of an appellate court when faced with a ground that a verdict is unsafe and unsatisfactory, and held that it was wrong for the appellate court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’.[3] It was said:[4]
To determine satisfactorily the appellant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.
[2]SKA v The Queen (2011) 243 CLR 400. See also M v The Queen (1994) 181 CLR 487, 492-3; AE v R [2011] VSCA 168, [39]; Libke v The Queen (2007) 230 CLR 559, 596–7 [113]; R v Klamo (2008) 18 VR 644, 653-4 [38]–[40]; Greensill v R (2012) 37 VR 257, 276–7 [81]–[83].
[3](2011) 243 CLR 400, 408 [20].
[4]Ibid [21].
As Mason CJ, Deane, Dawson and Toohey JJ observed in M:[5]
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[5]M v The Queen (1994) 181 CLR 487, 494.
For reasons that we will elaborate, having carried out our own independent assessment of the evidence, we have a reasonable doubt about the guilt of the appellant. Paying due regard to the notion that a jury has the primary responsibility of determining guilt or non-guilt, and that the jury in this case had the benefit of seeing and hearing the witnesses, we are of the opinion that the doubt we hold as to the appellant’s guilt is one that the jury should have experienced.
The verdict is unsafe and unsatisfactory
Counsel for the respondent — neither in written submissions, nor in oral submissions on the hearing of the present appeal — did not argue that the purported complaint to Ms Hill was a feature which materially distinguished the evidence on charge 1 from the evidence on charges 2 to 8. Thus, it was not argued that the evidence of what was said to Ms Hill was evidence of complaint which relevantly supported the complainant’s credit, or was otherwise hearsay evidence of the facts upon which the Court could act.[6]
[6]Evidence Act 2008, s 66.
Failure to make such a submission is understandable. It would have been difficult to rely on the statement to Ms Hill as being relevant to the events on charge 1, given the vague and non-specific nature of what was reported to have been said. KPR’s version was that only her left breast had been touched, whereas she told Ms Hill that the appellant had touched her ‘breasts’. (In the ERISP she told police that the appellant had touched her breasts ‘more than 50 times, a lot’.) More importantly, perhaps, it seems that KPR had said that she was on a couch when the touching of her breasts occurred, a version which bears no resemblance to the events relied upon surrounding the first charge. Further, in the ERISP KPR stated that she had not made any complaint about the camping incident.
Counsel for the respondent was constrained to argue that the distinguishing feature of charge 1 was that, in the ERISP, KPR identified the time at Nagambie as the ‘first time’ that the appellant touched her breasts. Thus, so it was said, the jury might have been prepared to act on the complainant’s evidence about this event, particularly since it was supported by other evidence which demonstrated that she had attended the Nagambie property. We do not find these submissions persuasive.
Recourse to the ERISP also shows that the complainant was able to be very specific about the activities embraced by charges 6 to 8. She told the police that the sexual activities occurred on a Saturday while her mother was at work. Moreover, she was able to identify the events founding these charges because they occurred in her bedroom, and ‘he’s never put me in a room, the last time I ever got put into a room was with him and [MBV]’. The complainant was then able to give the police an account which was very comprehensive, including instructions that the appellant gave to MBV as to what sexually she was to do to the complainant; the various sexual activities the appellant engaged in; the things that she did with, and to, both the appellant and MBV; the length of time she engaged in particular activities; certain sensations she experienced; and conversation that occurred in and around the relevant events. Plainly, the complainant was able to isolate these events with particularity — it was ‘the last time I ever got put into a room with him and [MBV]’ — and the tapestry of her evidence was replete with rich and copious detail.
Further, KPR was also able to isolate the events making up charges 2 to 5 in moderate detail. She identified the occasion as ‘about a year ago’, ‘it would have been around midday’, occurring in her bedroom on her bed, while her mother was at work. She identified with particularity various sexual activities as having occurred, and was able to recount things that the appellant said to her at the time.
In light of these matters, it seems to us that the partial explanation for the conviction on charge 1 advanced by the respondent — it was ‘the first time’ — lacks substance. On KPR’s account she was able to isolate the other two specific occasions of sexual activity embraced by the indictment with moderate precision, and comprehensively describe the events.
Her account on charge 1 may be contrasted. In the ERISP, the complainant said that when the events in Nagambie occurred she slept in a caravan. She had done so, she said, because she did not feel ‘secure’ in the tent. She gave a detailed description of the caravan as the location of the relevant incident and the place she slept on the overnight visit.
Q93 And what else can you tell me about the caravan?
AIt had a bed, had a little, had like a bed and then it had a little TV and you walked in here and there’s be [sic] a kitchen type thing and then there was a little, like little thing like that for the table and there was two seats and then there’s ….. down then, there was the tent and then there was seats where a fire was and a table.
During the special hearing conducted for the purposes of the trial, however, KPR said that there were things from her ERISP that she wanted to ‘clarify’. She gave evidence that, having viewed the ERISP, she had made notes of those things that needed clarification. One of those things was where she had slept. The complainant gave evidence that when in the ERISP she was talking about ‘the first assault’, she had mistakenly said that she slept in the caravan and that the appellant and her mother slept in the tent. In her evidence she said, ‘It was actually the other way around, they slept in the caravan and I slept in the tent’.
This change in her evidence was important. It might be thought to be surprising that she could be wrong about such a detail. She did after all have a very clear recollection of the caravan. Further, because she said the offending occurred as she was getting ready for bed, it is obvious that the version that she gave of her left breast being touched in the caravan became much less likely if she had slept in the tent. Presumably, for these reasons counsel for the respondent submitted on appeal that the jury may have accepted the original ERISP account and rejected the appellant’s ultimate evidence. There is an obvious problem with this view of the evidence too. The change was a considered one made on oath. It raises a serious doubt as to the truth and reliability of the ERISP account. It also means that the evidence of the incident cannot be characterised as very simple and easily ready of acceptance as counsel for the respondent put on appeal.
Apart from these difficulties with the complainant’s evidence, the appellant had denied — as he had denied with respect to all the sexual activities alleged against him — that the activity had occurred. He was also able to rely on the evidence of KPR’s mother that he had not entered the caravan. Obviously there were frailties associated with her evidence. She was recalling events some time ago. Nonetheless she was unshaken by the prosecutor’s cross-examination; and, as we have said, the prosecution placed some reliance on her evidence of her daughter’s presence at Nagambie as supporting the complainant’s account.
There were other matters which impinged on KPR’s credibility and reliability. She had complained to a female acquaintance, Ms Thorne, in 2007 that her step-father at the time had touched her breast. She later claimed that the reference to her step-father was a reference to the appellant. The trouble with that claim is that the overwhelming preponderance of evidence was that KPR’s mother did not meet the appellant until sometime in 2008. Further, there was evidence that at the time that she complained to her father of the appellant’s sexual impropriety towards her, she wanted to leave home and move to Sydney to live with her father because she felt her mother did not love her. There was also evidence from which it might be inferred that she was bullied, and was unhappy at school. Added to these matters, there was evidence that the complainant had carried on highly sexualised Facebook chats with several people, so that she had been exposed to descriptions of the kinds of sexual activity that she alleged against the appellant.
In our opinion, the advantage that the jury might have had in seeing and hearing the witnesses give the evidence in this case does not make up for its inadequacies. There was a significant discrepancy between KPR’s description of important details of what occurred at Nagambie which is very troubling. In our view, her evidence lacked credibility, which significantly diminished the probative force of the prosecution’s case. For the reasons we have discussed, we find the attempts made by counsel to explain how the jury could find the complainant’s credibility sufficient to convict on charge 1, while at the same time finding her evidence insufficiently credible to convict on the other charges, unpersuasive.
Our distinct impression is that the verdict on charge 1 was the product of compromise. There was, in our view, no legitimate way that the jury could have relied on KPR’s evidence to convict on charge 1, while at the same time rejecting her evidence as being insufficient to convict on the other charges. Our impression that the verdict was the product of improper compromise is fortified by the course of the jury’s deliberations. The jury retired on Friday 14 September 2012. They continued deliberations through 17 and 18 September 2012. On the morning of 19 September the jury advised the judge that they felt they were not making progress towards a verdict, and sought directions. The trial judge then told the jury he was not satisfied that he should discharge them, asked them to continue deliberations, and instructed them that they could deliver majority verdicts. Later that afternoon the jury delivered majority verdicts — guilty and not guilty alike — on all charges.
For the foregoing reasons the verdict cannot be permitted to stand.
We would quash the conviction and sentence on charge 1 and enter a judgment and verdict of acquittal.
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