DeSilva v The Queen
[2015] VSCA 290
•5 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0071
| SENAKA ROHAN DESILVA |
| v |
| THE QUEEN |
---
| JUDGES: | REDLICH, WHELAN and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 October 2015 |
| DATE OF JUDGMENT: | 5 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 290 |
| JUDGMENT APPEALED FROM: | DPP v DeSilva (Judge Stuart, County Court of Victoria, 12 December 2014) |
---
CRIME – CONVICTION – Whether verdicts unreasonable or cannot be supported by the evidence – Application for leave to appeal granted – Appeal dismissed.
CRIME – SENTENCE – Two charges of sexual penetration of child under 16 – Three charges of indecent act with or in the presence of a child under 16 – Total effective sentence of seven years’ imprisonment and non-parole period of four years and six months – Not manifestly excessive – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F H Todd | Stary Norton Halphen |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WHELAN JA
KAYE JA:
The applicant and the complainant were each part of a tightly knit social group of families sharing the same ethnic origin. The complainant alleges that between December 1997 and January 2000, when she was a girl aged between 9 and 11, the applicant, who was an adult male, consistently sexually abused her.
In 2012 the applicant was tried on 27 charges relating to this alleged sexual abuse and was convicted of seven. There were directed acquittals on six charges. The jury was unable to reach verdicts on 14 charges. The applicant successfully appealed the convictions, and a retrial was ordered.[1]
[1]DeSilva v The Queen [2013] VSCA 339.
The applicant was retried on five of the seven charges of which he had been convicted at the first trial and four of the charges upon which the jury at the first trial had been unable to agree. Two charges of which the applicant had been convicted at the first trial were initially on the indictment for the second trial but were then withdrawn. Thus, at the second trial the applicant faced nine charges. He was convicted on five and acquitted on four. For reasons which will become apparent, the charges which the appellant had faced in the first trial were relevant in the second trial.
Following a plea on 24 November and 9 December 2014, the applicant was sentenced on 12 December 2014 as follows:
Charge
Offence Maximum Sentence Cumulation 1 Sexual penetration of child under 16 [Crimes Act 1958, s 45(1)] 25 years’ imprisonment [Crimes Act 1958, s 45(2)] 5 years’ imprisonment 1 year 2 Indecent act with or in the presence of a child under 16 [Crimes Act 1958, s 47(1)] 10 years’ imprisonment [Crimes Act 1958, s 47(1)] 9 months’ imprisonment – Alternative to charge 3 Indecent act with or in the presence of a child under 16 [Crimes Act 1958, s 47(1)] 10 years’ imprisonment [Crimes Act 1958, s 47(1)] 18 months’ imprisonment – 4 Sexual penetration of child under 16 [Crimes Act 1958, s 45(1)] 25 years’ imprisonment [Crimes Act 1958, s45(2)] 6 years’ imprisonment Base 5 Indecent act with or in the presence of a child under 16 [Crimes Act 1958, s 47(1)] 10 years’ imprisonment [Crimes Act 1958, s47(1)] 2 years’ imprisonment – Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 4 years and 6 months Pre-sentence Detention Declared: 476 days Other orders:
- Reporting for a period of 15 years under the Sex Offenders Registration Act 2004
- Forensic sample order
The applicant now seeks leave to appeal both his convictions and the sentence. The sole ground upon which the applicant seeks to appeal the convictions is that the guilty verdicts are unreasonable or cannot be supported having regard to the evidence. The sole ground upon which the applicant seeks leave to appeal the sentence is that the individual sentence, the total effective sentence and the non-parole period are manifestly excessive.
Before turning to a consideration of the jury verdicts and the reasons why it is contended that the guilty verdicts are unsafe and unsatisfactory, it is necessary to identify the various incidents which were the subject matter of the evidence.
Identification of the relevant incidents
The first occasion upon which the complainant contended that she was sexually abused by the applicant was at a Christmas party in December 1997 at the home of another member of their social group, a woman generally referred to as ‘Margie’. In evidence given at the two trials the complainant contended that in a locked bathroom during this party the applicant sexually penetrated her with his finger (count 1 in both trials), committed an indecent act by placing her hand on his penis (count 2 in both trials), licked her on the vagina (count 3 in both trials being sexual penetration with the alternative of indecent assault), sexually penetrated her with his penis (count 4 in both trials) and committed an indecent act by masturbating in front of her (count 5 in both trials). This incident was generally referred to by reference to ‘Margie’s Christmas party’.
In the first trial the jury convicted the applicant on counts 1, 2 and 5 and were unable to agree on counts 3 and 4. In the second trial the applicant was convicted on all of these counts, the indecent act alternative rather than sexual penetration being the conviction on count 3.
The second relevant incident was referred to as ‘Stefan’s birthday party’. The complainant’s evidence was that this alleged offending occurred either at a birthday party for the applicant’s son, named Stefan, or at a confirmation party for him. The complainant alleged that, again in a bathroom, the applicant sexually penetrated her with his finger (count 9 in the first trial and count 6 in the second trial) and performed an indecent act by masturbating in front of her (count 10 in the first trial and count 7 in the second trial). On the first trial the applicant was convicted on these two counts. On the second trial he was acquitted.
A further incident was said to have occurred at the wedding anniversary of a couple named Blackett who were also part of the social group. This incident was referred to as the ‘Blacketts’ wedding anniversary’. The complainant alleged that, again in a bathroom, during this function the applicant sexually penetrated her with his finger (count 23 in the first trial and count 8 in the second trial) and performed an indecent act by placing her hand on his penis over his clothes (count 24 in the first trial and count 9 in the second trial). On the first trial the jury were unable to agree on these counts. On the second trial he was acquitted.
At the first trial there were a series of charges in relation to a number of incidents alleged to have occurred in or around a cricket club called the ‘Lanka Lions’. In the first trial there were directed acquittals on six of those counts because the complainant did not give evidence of the particular act or incident said to constitute the offence. The applicant was convicted on two of these counts in the first trial and those two counts were initially part of the indictment on the second trial. After pre-empanelment argument before the judge a new indictment was filed over and those counts were not included.
Finally, in the first trial there were some other counts upon which the jury was unable to agree which are no longer relevant.
In both trials the complainant’s disclosure of the alleged offending was a significant issue. The complainant was questioned by female adult members of the social group, including Margie herself, the day after Margie’s Christmas party as a consequence of certain things Margie had observed on the night of the party. What the complainant disclosed on that occasion was controversial. In February 2000, when the complainant was 11 years old, she made complaints about the applicant which led to the police conducting a video and audio taped evidence interview (VATE) with her. The disclosures in that VATE differed from those she later made as an adult. In 2010 the complainant, by then an adult, made the detailed complaints which formed the basis of what were the original 27 charges against the applicant.
Proposed ground of appeal on conviction
The proposed ground of appeal is as follows:
1.The verdicts on charges 1–5 are unreasonable or cannot be supported having regard to the evidence particularly in view of the cumulative effect of the following matters:
a)that the jury were not satisfied beyond a reasonable doubt of the guilt of the applicant in each of the charges where there was a total absence of supporting evidence (charges 6, 7, 8 and 9);
b)the fact that there were significant portions of the ‘Lanka Lions’ offending that the complainant did not give any evidence of at all in the first trial;
c)the fact that the account of the ‘Margie’s Christmas Party’ event given by the complainant in the formal circumstances of her first VATE statement in 2000 was substantially inconsistent with the account she later gave of the event as an adult;
d)the inconsistencies in the ‘complaint’ evidence — both inconsistent with her adult account of what happened and inconsistent with the accounts of the female witnesses to the complaint;
e)the generally incredible nature of the complainant’s allegation of what occurred in the bathroom at Margie’s Christmas party having regard to all the circumstances.
Other than factor (a), the matters relied upon in the proposed ground substantially reflect the defence case as put to the jury. The applicant did not give evidence. The applicant relied upon what was said to be the weaknesses in the prosecution case, particularly as to the credibility and reliability of the complainant. The defence led evidence of the applicant’s good character and absence of prior convictions. The defence relied upon the forensic disadvantage inevitably suffered as a result of delayed complaint and, in particular, upon the fact that the records of the investigation in 2000, other than the VATE itself, had been destroyed.
Appeal after the first trial
The guilty verdicts in the first trial were quashed and a new trial was ordered on two grounds. First, counsel had made an inexplicable decision in the first trial not to call evidence of good character which was available. This was particularly significant in the context of the first trial as the applicant had given evidence denying the offences in that trial. Secondly, in the first trial expert evidence had been given by a consultant psychiatrist, Dr Theresa Flower, on the issue of delayed disclosure of sexual abuse. In the first trial that evidence had trespassed beyond permissible limits.
Review of the evidence in the second trial
The first witness for the prosecution was the complainant herself. She gave evidence of the general background and of the fact that the applicant was a close family friend who she referred to as ‘uncle’. She was then taken to the circumstances of the first offences which allegedly occurred at Margie’s Christmas party in December 1997.
The complainant’s evidence was that she was walking down the corridor to go to the toilet in a bathroom when she felt that there was someone behind her. It was the applicant. He followed her into the bathroom, closing the door and placing his finger to his lips so as to indicate that she should be quiet. She said that the door was locked. Her evidence was that the applicant told her she was beautiful and kissed her on the lips. He then placed his hand upon her vagina and told her that as long as she was a good girl she would not be hurt. Her evidence was that he pulled down her underwear, exposed his penis, inserted one of his fingers inside her vagina, placed her hand onto his penis, and then bent down and kissed and licked her vagina. When asked where his tongue was she replied ‘not inside but I guess it passed the lips of my vagina’. The complainant’s evidence was that the applicant then lifted her up whilst he was seated on the toilet and tried to insert his penis into her vagina. Her evidence was that there was some penetration.
The complainant’s evidence was that at that point there was a knock on the door and that the applicant covered her mouth and called out that he was there. She said that she then heard footsteps walking away. Her evidence was that the applicant then lifted her off him and masturbated until he ejaculated.
The complainant’s evidence was that the applicant told her not to tell anyone, that no one would believe her, and that he would not hurt her as long as she didn’t say anything. Her evidence was that she was upset and crying and that there were tears coming down her face.
The complainant said that when she left the bathroom she ‘ran into’ Margie. She said Margie looked shocked. The complainant said that she continued on into one of the bedrooms in the house where she collapsed crying hysterically. She said Margie came into the room and saw her there. When Margie asked what was wrong she told her that she had felt sick and that the applicant had been helping her. The complainant’s evidence was that she gave this response because she was scared.
Her evidence was that the next day she and her brother were going to a fête with other members of the social group. She was picked up, together with her brother, by the applicant’s wife and taken to Margie’s house. Once there she was taken into the kitchen where there were a number of adult women, namely Margie, the applicant’s wife, a woman referred to as ‘Hyacinth’ and another woman referred to as ‘Suzie’.
The complainant said that she was asked why she had been in the bathroom with the applicant. At first she repeated the false explanation that she had been feeling sick and that he had helped her. When pressed she said that the applicant had ‘touched me and kissed me on my private parts’. Her evidence was that at the time she was very scared and very reluctant to tell anyone anything. She said she was also ashamed and confused and that when all the adult women began crying in response to what she said she felt even more ashamed and confused. The complainant said that the adult women made her swear on a religious book and statue that she was telling the truth. The complainant said that the women told her not to tell her parents because ‘it would break their hearts’. The complainant said that it was clear to her they were not going to do anything about it and that as they had told her not to say anything she decided she would keep it to herself.
The complainant was then asked about an occasion in 1999 at the home of the applicant. She agreed that it was at a birthday party for the applicant’s son, Stefan. The complainant said that most of the time she was outside but at one point she went inside to get something to eat. She said the applicant grabbed her hand and pulled her into a toilet. He kissed her, and pulled down her underwear. He inserted his finger into her vagina. He exposed his penis, put her hand on his penis and made her rub it until he ejaculated. When asked how she felt she said that she was ‘just numb’ and that she felt as if she was the one who had done something wrong.
The complainant was then taken to early 2000 and to a function at the Blacketts’. Mrs Blackett is the person who was referred to as ‘Suzie’. She is Margie’s sister. The complainant said that in the course of the function the applicant took her to a toilet upstairs and put his hand underneath her clothing and inserted a finger in her vagina. On this occasion he also made her touch his penis over his clothes.
The complaint’s evidence was that on 10 February 2000 she made a videotaped statement at a police station. That videotaped statement was played to the jury and was tendered as an exhibit.
The videotape statement was made available to the Court on the hearing of the application for leave to appeal. We have watched the videotaped statement and have read the transcript. We will refer to the videotaped statement as the ‘2000 VATE’.
The 2000 VATE begins in the conventional way. The complainant was 11 years old at the time and she was asked whether she knew the difference between telling the truth and lying. She said that she did. She said that telling the truth meant ‘telling exactly what has happened and not lying’. When asked why she was there she said it was because the applicant had touched her ‘in’ the vagina and her breasts and had kissed her, and that this had been happening continuously from 1997 after a Christmas party. She said that she had told his wife and another family friend the next day and that they had told her not to tell anyone. She said ‘then it just kept on going and everyone knew’.
In the VATE the complainant described the three incidents which she also described in her evidence but in starkly different terms. In the VATE she described what had happened as touching of her vagina and breasts over her clothes. She said that this touching had been happening continuously from 1997. She described herself as responding by repeatedly pushing his hand away. She also described herself telling him to stop and walking away on occasions.
After the VATE was played to the jury the judge gave the jury directions about the reference made in the VATE to uncharged acts. No complaint was made then, or is made now, in relation to the judge’s direction.
When the complainant’s evidence resumed she was asked whether what she had said in the VATE was true. She said that she did tell the truth but that she did not say everything that had happened. She said that she had withheld information. When asked why, she said that at that stage she was still very scared, that the applicant was still a significant presence in their life, that she was concerned about how people would perceive her, and that she was scared that she would be the one who would get into trouble. Her evidence–in–chief concluded at that point.
In cross-examination the complainant was asked about the circumstances in which she came to make the 2000 VATE. From the account she then gave, the circumstances were that she was initially taken by her father to the Knox Police Station on a pretext in relation to a friend of hers named Bianca who was said to be in trouble. She disclosed something about the alleged abuse to Bianca whilst alone in a room with her at Knox Police Station. The police and the complainant’s father were watching and listening from outside the room through one way glass. Up until that point she had not told either of her parents anything about the abuse. These somewhat unusual events were not the subject of any further evidence in the trial. Because of what she had disclosed at the Knox Police Station she was taken to the Dandenong Police Station a day or two later where the VATE was made.
She was then asked about statements made by her in 2010, 2011 and 2012. The complainant was challenged as to why she said she had been scared of getting into trouble herself when she made the 2000 VATE. She said that she felt she was the one at fault, that he was older than her, and that she had been brought up to respect her elders and not to challenge them. She agreed that she had not said in the 2000 VATE that he had sexually penetrated her. When asked what was the difference between what she had not said (penetration) and what she did say (touching on the breasts and the vagina over her clothes) she said that it was ‘a bit more personal’. When asked why she then made the statements beginning in 2010, she said that it was because she was not coping with the effects of what had happened to her. She said that as she had got older she had learnt that it was not her fault and that she did not need to be embarrassed anymore.
She was asked about what had happened the day after Margie’s Christmas party and she was asked whether she had told the women that day not to tell anyone rather than the other way round. She maintained her account that they had said not to say anything.
The complainant would not accept the proposition that she had lied in her 2000 VATE about the Margie’s Christmas party incident. She said that the incident had occurred. She said she had not told the whole truth in the 2000 VATE because she thought she would get into trouble and that that was how her culture was.
She agreed that in the 2000 VATE she had said that at Margie’s Christmas party he had pulled her into the toilet. She agreed that that was not the truth.
It was put to her that there was a major difference between her 2000 VATE and her later statements in that she said that she had been touched over her clothes in the 2000 VATE but maintained that he had sexually penetrated her in the more recent statements. She was challenged as to why she had left that out in 2000. She was challenged on her explanation that it was because she was scared.
She was asked about inconsistencies between her account of leaving the bathroom and the evidence that would later be given by Margie.
It was put to her that the events she had described in the bathroom ‘did not happen’. She disagreed. It was not put to her that she and the applicant had not been in a locked bathroom at Margie’s party, nor was any alternative version of what happened in the bathroom put to her. This is noteworthy given the subsequent evidence of Margie herself.
She was then cross-examined further about the events the day after Margie’s Christmas party. She was asked to confirm that she had told the women that the applicant had kissed her on her private parts and that they were all crying. She was again asked about whether she was the one who had said not to say anything or whether the women had said that.
When asked about the incident at Stefan’s party, she was initially asked to confirm that it was a birthday party. She did not do that, saying simply that it was a big function. In the 2000 VATE she had said that she had thought it was a confirmation party. There was considerable interchange about the nature of the function, it being put to the complainant at one point that Stefan would be giving evidence that he had had no birthday party in 1999. The complainant’s evidence was that she was not sure whether it was a confirmation or a birthday but that it was an event for the applicant’s son. Stefan did not give evidence as matters transpired.
The complainant was then cross-examined about the complaints that she had made and the evidence she had given in the first trial concerning events at the cricket club. The burden of the cross-examination was that in her evidence in the first trial she had not referred to incidents and events which formed the basis of the various charges upon which there were directed acquittals. The complainant herself said that she was unable to remember what had happened in relation to particular charges but the prosecutor conceded the correctness of what was being put.
The judge immediately gave the jury directions about the fact that the trial was a retrial and about the accused being entitled to the full benefit of the verdicts of acquittal. No compliant is made in relation to those directions.
The complainant was cross-examined further about the incident at Stefan’s party and about what was said to be inconsistent evidence which she had given at the first trial.
The complainant was asked whether she had ever been in trouble with the police and she said that she had. It was put to her that the matter involved giving a false address and she responded that she had corrected it.
The complainant was asked about her relationship with Bianca. The questions were clearly directed towards establishing the proposition that if the things she had described had happened she would have confided in Bianca. The complainant was not prepared to accept that.
The complainant was asked about the incident at the Blacketts. She confirmed that on her account that incident had occurred after the applicant had directed her to go upstairs simply by flicking his head. It was put to the complainant that all her allegations were false and that ‘it’s all made up’. She denied that.
When re-examined the complaint was asked why she had not told her parents. She said that it was because she was ashamed, she thought that she was the one at fault, and she thought that her father would look at her differently ‘for having let someone do something like that to me’. She was asked what the incident with police was and she said that it was for driving a vehicle when she was 13 years old.
At the conclusion of the complainant’s evidence the judge again gave directions about the use which could properly be made of the evidence of uncharged acts. The prosecution then amended the dates of the charges referable to the incident which allegedly occurred at the Blacketts. When explaining that amendment the judge reinforced to the jury what he had said a number of times about uncharged acts, he emphasised that the prosecution had to prove the particular incidents alleged, and he warned the jury against reaching a conclusion that certain conduct had occurred on one occasion and importing that into another occasion.
The complainant’s mother gave evidence. In her evidence-in-chief she could do little more than confirm some of the surrounding circumstances.
In cross-examination she was asked about the Christmas party at Margie’s in 1997. She said that she had not seen the complainant crying that night and that the complainant had not said anything to her about what had happened. She agreed that that night Margie had said to her that she should look after her daughter. She agreed that she had found that a strange thing to say. She agreed that she was ‘quite put out’ with what Margie had said to her.
The next witness was Margie. She described how late on the night of her Christmas party, at about midnight, she had gone to the door of the toilet and found the door locked. She walked away and began tidying an adjacent room. She saw the applicant come out of the toilet about four or five minutes later. When she walked into the toilet herself she saw the complainant standing by the side of the door. Her evidence continued:
And did she say something to you? Did you ask her something? — — — I — yes I asked, ‘[Complainant’s name] what are you doing in this bathroom with Uncle Senaka?’
All right and what did she say? — — — [She] said, ‘Uncle Senaka came to help me. I had a tummy pain and he came to help me.’
And how did you feel about that? — — —I was shocked.
…
Why were you shocked? — — — I’m shocked because there was a man in the toilet. He walks out, I walk in and I see a little girl there. Anyone would be shocked.
Because of her concern she questioned the complainant the next day in the presence of the applicant’s wife and, her own sister, Hyacinth. Her evidence was that at first the complainant had maintained that nothing had happened. The women pressed her and gave her a religious statue asking her to hold the statue and tell the truth. She said that the complainant had then said ‘Yes, Uncle Senaka touched me and kissed me and he said he loves me’. She said that the adults were all crying and the complainant was also crying.
When cross-examined Margie was challenged on her evidence that the incident occurred late at night. She explained why she had said that it had occurred around midnight. She was asked to confirm that the applicant was the first person who came out of the bathroom and she did so. She was asked to confirm that the complainant looked ‘normal’ and that she was not crying, and she did so.
It was put to her that during the conversation the next day it had been the complainant who had asked the women not to tell her mother and father and she agreed with that saying ‘because her dad will hit her she said’.
Margie was asked whether the complainant had said that the applicant had touched her on her private parts. She said that she had. She agreed that that was not in her statement. She said it was not in her statement because she felt ashamed to talk about it. She agreed that she had also not said that in her evidence in the first trial. She said that that was because she felt shy and ashamed to talk about this. She was then taken in detail through the evidence she had given in the first trial where she had maintained that the complainant had only said that the applicant had kissed her, adding that they had not asked her where he had kissed her which she had said was perhaps ‘our fault’. She agreed that those answers had been true and correct.
It is important to observe that Margie was not challenged on her evidence that the complainant and the applicant had emerged late at night from a locked bathroom.
The evidence of the woman named Hyacinth was led before the jury by playing a videotape of her evidence from the first trial. She confirmed the meeting the day after Margie’s Christmas party and the questioning of the complainant. Her evidence was that when pressed for an explanation about what she had been doing in the toilet with Uncle Senaka, the complainant had said that Uncle Senaka gave her a kiss and that was all. She said that was all that she had heard. She said that the complainant was scared when she was being questioned. She said the complainant had said not to tell her father about it.
The next witness was Dr Flower. Dr Flower is a consultant psychiatrist. The prosecution sought leave to lead evidence from her pursuant to s 108C(1)(c) of the Evidence Act 2008 (the ‘Act’). Evidence from her in relation to the development and behaviour of children who have been victims of sexual offences was sought to the led so as to meet a foreshadowed attack on the credibility and reliability of the complainant based upon the inconsistencies in the complaints which she had made, in particular, in the 2000 VATE. The judge ruled that he would give that leave and he ruled against a submission on behalf of the applicant that the evidence should be excluded under s 137 of the Act.[2] Consistently with the Court of Appeal’s decision after the first trial,[3] the judge confined Dr Flower’s evidence to what was described as ‘general educative’ evidence directed towards ‘explaining why a complainant might not provide a complete account when she first disclosed her abuse’.[4] Dr Flower was not permitted to express opinions concerning the complainant herself, or the particular circumstances of the alleged abuse.[5] Dr Flower had given evidence on a voir dire prior to empanelment and her evidence before the jury was constituted by an edited videotape of that voir dire evidence. No complaint is made in relation to the judge’s ruling concerning Dr Flower.
[2]DPP v DeSilva (Unreported, County Court of Victoria, Judge Stuart, 29 October 2015).
[3]See DeSilva v The Queen [2013] VSCA 339 [27].
[4]DPP v DeSilva (Unreported, County Court of Victoria, Judge Stuart, 29 October 2015) 469–70.
[5]Ibid 470.
Dr Flower described her qualifications and said that she had particular expertise in the area of sexual abuse and delayed disclosure of sexual abuse. She made some general comments in relation to children of 10, 11 or 12 years of age as compared to adults, saying that they can be very conscious of their bodies and very embarrassed. When asked about the process of disclosure she said that the literature describes a phenomenon, which she had also seen in her clinical experience of children, which she called ‘testing the water’. She said that a child might ‘throw something out’ and see what the reaction is.
Dr Flower described the circumstances which inhibit disclosure. She referred to embarrassment and shame, and to a feeling of protectiveness towards the child’s own family. She described a phenomenon of progressive disclosure.
When cross-examined she said that most disclosures by 9 to 11 year olds would not be full, frank and detailed ‘first off’. When asked about dealings with police she said the following:
Usually by the time it’s got to the police, um, it is further down the track and they, you know, you see some VARE tapes or read some police interviews where the child still doesn’t disclose very much and others where by that time because we they — they might have had counselling, they might have spoken to someone, they are much more open. It’s — I’ve seen different things from different children.
She agreed that in the usual situation of taped interviews by police the situation had ‘definitely moved on from testing the waters’.
In her cross-examination Dr Flower repeated that shame was an inhibitor to disclosure. She observed that she had never seen a disclosure where shame had not been involved.
Dr Flower said that often children take responsibility for the abuse. She repeated her evidence that children may be reluctant to disclose in the belief that that would protect a parent.
The last witness for the prosecution was the informant. He gave evidence that the applicant had no prior convictions and that the complainant had been convicted on charges of unlicensed driving and stating a false address. That concluded the case for the prosecution.
The defence called Bianca. Her evidence was rendered inconsequential when, in evidence–in–chief, she said the complainant had kept secrets from her. The defence also called a character witness who gave unchallenged evidence that the applicant had a reputation for being a person of good character, and an honest and reputable man. The judge gave a good character direction immediately after than evidence.
The judge gave a full and detailed charge, including detailed directions as to the forensic disadvantages of delay, and a repetition of the good character direction. He emphasised again that it was necessary for the prosecution to prove the particular offence charged beyond reasonable doubt. He emphasised that it would be wrong to reason that because the jury was satisfied that the applicant had engaged in some sexual misconduct that could be translated into a conviction on a particular charge.
Submissions made on application for leave to appeal convictions
The submission in support of the proposed ground on the convictions relied upon each of the circumstances specified in that proposed ground, as set out earlier. Particular emphasis was placed upon what was said to be the ‘gross inconsistency’ between the account of the incident at Margie’s Christmas party in the 2000 VATE and the accounts of this incident which the complainant had given as an adult. It was submitted that this constituted a ‘fundamental barrier’ to the acceptance beyond reasonable doubt of the complainant’s account of what had occurred in the bathroom at Margie’s party. The contrast between the account given in the 2000 VATE, whereby what had occurred was touching over her clothes, and the account which she had given as an adult, in which both digital and penile penetration had occurred and penetration with the tongue may have occurred, was particularly relied upon. In that connection, special emphasis was placed upon count 4, the alleged penile penetration. It was submitted that Dr Flower’s evidence could not explain this extraordinary inconsistency. Even if the accounts she had given as to the circumstances which inhibit disclosure and the process of ‘testing the water’ were accepted, it was submitted that what occurred in the 2000 VATE could not be described as ‘testing the water’. It was submitted that by that stage the complainant had made a complaint, she was in the presence of police, and she was being treated sympathetically by adults. Dr Flower’s evidence, which we quoted earlier, about disclosure to police was relied upon. The circumstances which might inhibit complaint were no longer present, it was submitted.
Reliance was also placed upon the other factors specified as constituting grounds which meant the complainant’s evidence as to what had occurred at Margie’s Christmas party could not be accepted beyond reasonable doubt. Reliance was placed upon the complainant’s failure to give evidence of certain of the cricket club incidents in the first trial, the inconsistent evidence given by the complainant on the one hand and the adult females on the other as to what had occurred the day after Margie’s Christmas party, what was submitted to be the inherently incredible nature of the events the complainant described as happening in the bathroom at Margie’s Christmas party which was said to be the first occasion of abuse, and the fact that the jury clearly were not able to accept the complainant’s evidence beyond reasonable doubt in relation to the alleged incident at Stefan’s function and the Blacketts’ wedding anniversary.
On behalf of the respondent it was submitted that the evidence given by the complainant concerning the incident at Margie’s Christmas party was directly supported by Margie’s evidence, and by the evidence of the events the next day. It was submitted that the verdicts in this case were indicative of a jury who had approached the task carefully, giving the applicant every benefit of the doubt. It was submitted that because there was direct supporting evidence of the complainant’s account in relation to the Margie’s Christmas party incident, the jury had been able to convict on those counts whilst having a doubt on the others. It was submitted that the verdicts were consistent with ‘cautious jurors approaching their task in a manner whereby they were not prepared to find the accused guilty on the complainant’s evidence alone’. As to the other circumstances said to impugn the complainant’s credibility and reliability, it was submitted that these were all matters before the jury for them to assess. The respondent particularly relied upon the authorities to the effect that it is for the jury to assess and determine such issues.
Analysis of the proposed conviction appeal
In order to establish the proposed ground on conviction the applicant would have to demonstrate that a jury, properly directed, ought to have had a reasonable doubt.[6] It is not sufficient for the applicant to point to circumstances which would reveal that a jury might have entertained a doubt about the applicant’s guilt. Further, as emphasised by counsel on behalf of the respondent, the High Court has stressed the importance of the fact that it is the jury which is the body entrusted with responsibility for determining guilt or innocence, and in particular, for determining guilt or innocence based upon its assessment of the credibility and reliability of the witnesses.[7]
[6]R v Klamo (2008) 18 VR 644, 653–4.
[7]M v The Queen (1994) 181 CLR 487, 494–5 quoted in R v Nguyen (2010) 242 CLR 491, 499–500 [33] and SKA v The Queen (2011) 243 CLR 400, 405–406.
In the circumstances here it seems to us that the applicant ought to have leave to appeal. The proposed ground is arguable. The hearing proceeded on the basis that if leave were granted the Court should go on to determine the appeal itself forthwith.
The principal circumstance relied upon in support of the submission that the jury ought to have had a reasonable doubt in relation to the charges concerning Margie’s Christmas party is the conflict between what the complainant had said in the 2000 VATE and the account she gave as an adult, including in her evidence.
In our view, whilst that conflict undoubtedly exists, and might have formed the basis for a cautious and reasonable jury to have a reasonable doubt, it was not bound to create such doubt.
Our reasons are as follows.
1.Margie’s evidence both as to the events on the night and as to the events the next day supported the credibility and reliability of the complainant’s account. On any view, the applicant was in a locked bathroom late at night with the complainant. This evidence was unchallenged. On any view, the circumstances were extraordinary and, indeed, as Margie said in her evidence, shocking. On any view, Margie was sufficiently concerned about what she had witnessed to herself conduct a form of investigation the next day in company with other adult females. On any view, the complainant made some form of complaint of inappropriate conduct by the applicant to the adult women the next day.
2.At the time of the 2000 VATE the complainant was only 11 years old and the circumstances in which the 2000 VATE was conducted seem to us to be quite unusual. Without ever having disclosed abuse to either of her parents, it seems that the complainant was prompted to make some form of initial disclosure as a consequence of a pretext discussion with her friend Bianca. It seems to us that it was open to the jury to conclude that the circumstances which Dr Flower had described as potentially arising in cases of this kind, and which the complainant in her own evidence said did exist in her case, were still present when she made the 2000 VATE. These circumstances were shame, embarrassment, a desire to protect her own family, and a feeling that she was responsible for the abuse herself.
3.Whilst the 2000 VATE contains allegations against the applicant which are inconsistent with her adult accounts, including the account in her evidence at trial, it is significant, in this context, that what she alleged in the 2000 VATE were matters which she perceived to be less shocking to her adult listeners than what she said as an adult was the truth. Further, it seems to us that the jury were entitled to see her VATE answers as being consistent with a reluctance to reveal what had occurred,[8] embarrassment,[9] a desire to portray herself as resisting and being uncooperative,[10] and a general reticence and desire to bring the discussion to a close. The jury was not bound to find those features in the 2000 VATE but it seems to us that it was open for them to do so.
[8] See, eg, questions 5, 16, 33, 97, 98, 121, 133, 135, 148, 188 in the 2000 VATE transcript.
[9] See, eg, questions 23, 25, 97, 98, 121 in the 2000 VATE transcript.
[10] See, eg, questions 47, 49, 154, 166, 173, 175, 177, 179, 182 in the 2000 VATE transcript.
The jury saw the complainant. It was for them to assess these issues. In itself, the 2000 VATE did not require them to have a reasonable doubt.
The other circumstances relied upon by the applicant, other than the acquittals, were circumstances which were all before the jury and which the jury was best placed to assess. None, either individually, or in combination with each other or with the 2000 VATE, required the jury to have a reasonable doubt.
As to the acquittals, they are just as consistent with a reasonable and cautious jury giving the applicant the benefit of the doubt as they are of a jury which had determined that the complainant was not to be accepted. There was a significant difference between the prosecution case relating to Margie’s Christmas party and its cases relating to the other counts. That difference was the supporting evidence of Margie. The jury differentiated between the respective cases, and there was a clear and reasonable basis upon which it was open for them to do so.
It is also significant that the jury found the applicant guilty of the alternative offence on count 3, revealing they undertook a careful analysis of the complainant’s evidence. The complainant suggested that there had been penetration of her vagina by the applicant’s tongue, but on her own evidence in the way she expressed it there were grounds to have a doubt about whether penetration occurred. The jury verdict reveals that the jury addressed that issue and resolved it in the applicant’s favour.
Leave to appeal should be granted but the appeal should be dismissed.
The sentence appeal
The proposed ground of appeal is as follows:
The individual sentences, the total effective sentence and the non-parole period are manifestly excessive, particularly in view of the following matters:
(a) the absence of prior or subsequent convictions;
(b) the fact that the charges on which the applicant was convicted took place in a single location over a short space of time, and that some separately charged acts were preparatory in nature;
(c) the evidence of good character on the trial;
(d) the delay between the first VATE statement and the trial in 2012;
(e) the protracted nature of the trial process;
(f)the fact that the applicant went into custody twice, having been granted bail after the first successful appeal;
(g) the fact that the most significant charge, being charge 4, was the subject of (a) a hung jury and (b) a filing of a notice of discontinuance.
(h) the fact that the applicant went into custody for the second time aged 61 years.
In submissions, counsel for the applicant referred to all the matters set out in the proposed ground and emphasised the short duration of offending and that some of the offending was preparatory to more serious offending. Counsel also emphasised the age of the applicant, and the delay in bringing the matter to trial, which counsel submitted should be calculated from when the matter was first investigated in February 2000, a total of some 14 years and 8 months. At the plea hearing an issue had arisen as to whether the sentence imposed after the first trial created a ‘ceiling’ with respect to sentence after the second trial. On the appeal, counsel for the applicant conceded that the sentencing judge was bound by no such ‘ceiling’ given the different verdicts.
Counsel for the respondent relied on the reasons of the sentencing judge and submitted that the mitigatory matters set out by the applicant had been expressly taken into account. Counsel emphasised that the offending was extremely serious and involved a gross breach of trust, threats of violence and the infliction of pain on the victim, and had left a significant lasting impact on her.
All of the matters set out in the proposed ground of appeal were matters properly to be taken into account in mitigation. The sentencing judge expressly did take all of them into account. In particular, the sentencing judge emphasised the significant delay and the ‘protracted’ trial process which were not attributable to the fault of the applicant,[11] and described as ‘of considerable moment’ the fact that applicant spent 15 months in custody until bailed after his successful appeal only to then return to custody at the age of 61.[12] The sentencing judge also emphasised the applicant’s good character and the absence of re-offending over a substantial period of time.[13]
[11]DPP v DeSilva (Unreported, County Court of Victoria, Judge Stuart, 12 December 2014) [29].
[12]Ibid [30].
[13]Ibid [28].
This was very serious offending. It involved a young girl and a significant breach of trust. There is no remorse. The impact on the victim was profound.
The applicant is a man without prior or subsequent convictions, and is a person otherwise of good character. He was entitled to have those matters taken into account in mitigation, and the sentencing judge did so. But his conduct in sexually exploiting and penetrating a young girl, who was the daughter of his friends and who respected and looked up to him, and in both hurting and threatening her, all for his selfish sexual gratification, demanded a significant sentence of imprisonment.
The sentencing remarks of the sentencing judge were thoughtful and balanced. The sentences are well within the range of sentences open to him. We do not consider the contrary to be arguable. We would not grant the applicant leave to appeal the sentences.
- - -
6
0