Di Giorgio v The Queen
[2016] VSCA 335
•20 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0038
| ALEX DI GIORGIO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and TATE JJA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 October 2016 |
| DATE OF JUDGMENT: | 20 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 335 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1365 (Judge Punshon) |
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CRIMINAL LAW – Appeal – Conviction – Incriminating conduct – Jury Directions Act 2015 pt 6 – Lie told in response to general allegation of misconduct – Whether lie capable of being seen as implied admission – Applicant’s knowledge of offence provides foundation for inference of guilt – JuryDirections Act 2015 s 20(1)(b), s 32 – Edwards v The Queen (1993) 178 CLR 193, considered.
CRIMINAL LAW – Jury directions – Jury Directions Act 2015 s 21 – Direction by judge that implied admission was as to inappropriate touching – Whether misdirection as to lesser serious offence than that charged – Ciantar v The Queen (2006) 16 VR 26, Baini v The Queen (2012) 246 CLR 46, Hothnyang v The Queen [2014] VSCA 64, Crocker v The Queen (2013) 39 VR 668, discussed – No substantial miscarriage of justice – Leave granted – Appeal dismissed.
CRIMINAL LAW – Sentence – Rape – Indecent Assault – Sentence of 7 years and 2 months’ imprisonment, 4 years and 9 months’ non-parole period – DPP v Werry [2012] VSCA 208, Ali v The Queen [2013] VSCA 294, Singh v The Queen [2014] VSCA 250, discussed – Sentence not beyond sound exercise of sentencing discretion – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T E Wraight QC with Mr J G Westmore | Grigor Lawyers |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH
TATE JA
BEALE AJA
Overview
Following a 13-day trial in the County Court, the applicant was convicted of indecent assault (one charge) and rape (three charges). The applicant was sentenced to a total effective sentence of 7 years and 2 months’ imprisonment, with a non-parole period of 4 years and 9 months’ imprisonment.
The applicant seeks leave to appeal against his conviction on two grounds concerning evidence of incriminating conduct which the prosecution relied upon during the trial. The trial judge allowed evidence of a lie told to the applicant’s employer and investigating police to be treated as an implied admission. The appeal concerns the questions whether the admission constituted incriminating conduct within the meaning of the Jury Directions Act 2015 (‘JDA’) and whether the direction given to the jury concerning the implied admission was erroneous and gave rise to a substantial miscarriage of justice.
The applicant also seeks leave to appeal against his sentence on the ground that the individual sentences, total effective sentence and non-parole period are each manifestly excessive.
For the reasons that follow we would grant leave to appeal against conviction on the second ground, but dismiss the appeal against conviction. We would grant leave to appeal against sentence, but dismiss the appeal.
Circumstances of the offending
The applicant was team leader of a door-to-door sales team that travelled to country Victoria on 6 June 2013. The team consisted of the applicant, the complainant, another female (JD) and another male (LL).
That evening, following a day of work, the team had a meal, purchased a considerable amount of alcohol and gathered in a motel room being shared by the complainant and JD. Once in the motel room, the group played a drinking game. It was not long before the complainant became noticeably intoxicated, and was unable to go to the bathroom without the assistance of the applicant and JD. At some stage the complainant had become so intoxicated that it was necessary to place her in her bed. She was lifted onto the bed by the applicant and placed under the covers, ‘in an apparent state of sleep with her eyes closed.’
On two occasions during the evening after the complainant had been placed in her bed, JD and LL went outside the motel room to smoke, leaving the complainant alone in the room with the applicant. The offending the subject of charges 1 and 2 was said to have occurred on the first occasion. The applicant placed his hands under the covers, touched the complainant’s breasts under her bra (charge 1) and then put his hand down her pants and inserted his fingers into her vagina (charge 2).
On the second occasion, some considerable time after the first occasion, JD and LL again left the room to smoke. The offending the subject of charges 3 and 4 was then said to have occurred. The applicant again placed his fingers in the complainant’s vagina (charge 3) and then lifted her head and put his penis in her mouth (charge 4), pushing her head back and forward and ejaculating in her mouth. The complainant kept the ejaculate in her mouth until she was aware enough to spit it into the bin beside her bed. The complainant reported being aware of what was happening, but felt paralysed and unable to move.
After the applicant had left the motel room, the complainant began to cry and proceeded to tell JD what the applicant had done. Subsequently, she telephoned a friend and told her what had happened. The complainant then contacted her sister’s fiancé to arrange for him to drive from Melbourne to pick her up. While waiting for him to arrive, the complainant took the bin liner and the alcohol bottle from which the group had been drinking and put these items in her bag. Her sister’s fiancé arrived at approximately 3:00 am and drove the complainant back to Melbourne. On the drive back to Melbourne the complainant told him what had happened. The complainant reported what had happened to her employer the next day.
The General Manager (Calikes) spoke with the applicant on the afternoon of 7 June 2013. It is during this discussion that the applicant was alleged to have told two lies. Firstly, that the alcohol purchased on the night was limited to six Canadian Club pre-mixed drinks and that the complainant had only consumed half a stubby. Secondly, the evidence of Calikes was that he told the applicant that allegations of improper conduct had been made by the complainant. Calikes then said that he asked the applicant ‘at any time were you alone with [the complainant] while she was in bed?’, and gave evidence that:
He [the applicant] said the other two had gone out for cigarettes but could see in because the door was open.
He then told the applicant ‘these are serious allegations’. The applicant admitted later to investigating police that he had lied concerning the alcohol purchased and the alcohol consumed by the complainant. That however was a lie that was treated during the trial as going only to the applicant’s credit. The lie that the door was open was relied upon as incriminating conduct by the prosecution.
The applicant was interviewed by police some six days later. In the course of a long account of what happened on this night, he told police that JD and LL twice went outside to smoke whilst the complainant was in bed and he was in the room alone with her. He said that on the first occasion, the motel room door was open. On the second occasion he said the door was shut. That part of his answers relating to the first occasion was also said to be a lie of the same nature as that told to Calikes and so formed part of the incriminating conduct.
It was the prosecution case that the complainant’s account of the offending, which occurred on the two occasions when she was in the bed and alone with the applicant in the room, should be accepted. The prosecution also relied upon DNA evidence of material found in the rubbish bin of the room. The biological material tested contained saliva which the prosecution contended was likely to have come from the complainant and semen that was likely to have come from the applicant. The semen did not contain spermatozoa. There was evidence that the applicant had undergone a vasectomy. The prosecution relied upon evidence of immediate complaint made by the complainant to various witnesses which was consistent with her allegations and the evidence of her observed distress.
The defence case was that nothing of a sexual nature had occurred. The defence called expert evidence to establish that there was a possibility of a false positive with the DNA evidence and that a secondary transfer could explain what was likely to be the applicant’s DNA in the material examined.
The issue for the jury was whether the accused committed the four sexual acts.
A. Appeal against conviction
Ground 1 — the trial judge erred by permitting the alleged lies concerning the door to the motel room being open to be relied on by the prosecution as evidence of incriminating conduct
Under the first ground of appeal, the applicant submits that the trial judge erred by permitting the alleged lie told by the applicant to Calikes and the lie told to investigating police that the door to the motel room was open on the first occasion, to be treated as incriminating conduct.
The evidence was said to be capable of being seen as a lie by the jury. The complainant thought the door was closed when the offences were committed, but accepted that she had her eyes closed. The witness LL stated that the door was closed on each occasion he was outside smoking. Further, the witness JD had stated that the door was closed while she was outside smoking with LL. In cross examination however she said that on one occasion it was open ‘a little bit.’ By the time of his police interview the applicant said that the door was closed on the second occasion, albeit only for a short time while he cleaned up and then announced to JD and LL that he was going bed.
Although the applicant initially maintained that the trial judge failed to make the determination required by s 20(1)(b) of the JDA, during the course of oral argument, senior counsel for the applicant made clear that it was accepted that the judge had made the determination required, but that his Honour had erred in doing so. During oral argument the applicant did not pursue that part of his written case in which it had been submitted that the lie could not, on the whole of the evidence, be shown to be a lie, that some evidence from JD was equivocal and that there was an innocent explanation of the lie, namely to preserve his employment. Those arguments were not pressed. The applicant submitted that the ground rested upon the proposition that the lies were incapable of being viewed as an implied admission as to any of the offences charged, or as to an element of those offences.
Section 18 of the JDA provides:
In this Division —
‘conduct’ means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
‘incriminating conduct’ means conduct that amounts to an implied admission by the accused —
(a)of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
‘offence charged’ includes any alternative offence.
Section 20 provides:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless —
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Note
A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
Conduct of the trial
The prosecution originally intended to rely on the lies told by the applicant to his superior as only affecting his credit. Well into the hearing of the evidence, defence counsel objected to the admission of the lie as to the door being open, on the basis that it was inevitable that the jury would improperly use the lie as an implied admission. As it was the prosecution case that the applicant told a deliberate lie because he knew the door was closed, the trial judge thought the defence argument was powerful that the lie would be used by the jury as an implied admission. His Honour said to the prosecutor:
it's so intrinsically bound up with the alleged offending that it seems to me, as I sit here anyway, that the jury are highly likely to reason that the accused told this lie to his boss because he knew that he'd engaged in some sexual assault.
The prosecutor understood his Honour to have an ‘intractable concern’ that the jury would use it as an implied admission. As a result, on the next hearing day, the prosecution provided a notice of the post-offence conduct, pursuant to s 19(1) of the JDA. The notice related solely to the lie told by the applicant to the general manager Calikes. It did not include the lies in the applicant’s record of interview. As Calikes was interstate it was agreed that parts of his statement should be read into evidence. Defence counsel conceded that the lie disclosed by that evidence was capable of being used as incriminating conduct. The next day, the prosecution having provided a further notice to the defence that it also sought to rely on specific passages of the record of interview dealing with the same lie as incriminating conduct, the judge was informed that the parties had agreed that this lie should also be treated as a possible implied admission. The trial was thereafter conducted on that basis.
The judge thereafter raised concerns with counsel as to what form his directions on the implied admission might take. Those concerns provide the genesis of the applicant’s argument that it could not be inferred from his lie to Calikes and the police that he impliedly admitted committing any of the charged offences. These concerns also explain the subsequent direction given by his Honour, the subject of ground 2. His Honour said to counsel:
So the second point is, as I say, after having considered the setting in which Calikes spoke to the accused, and as I see it, the absence of any evidence that the accused was aware of the allegations that the complainant was making. As I follow the material, he seems not to have been made aware of precisely what the allegations are until towards the conclusion of the interview, although he does say in the interview that he'd had a conversation with Mr Calikes the day before the police interview in which I think he indicates that he was made aware that there was some sort of sexual abuse allegation.
But when he speaks to Mr Calikes on the Friday of the previous — of the week before the record of interview, as I follow the material he's simply told that there was — told them the concern was improper conduct and the focus seems to be on alcohol consumption although the manner in which the complainant was lifted was mentioned.
So if I'm correct, and the accused had not been made aware of the allegations being made by the complainant either generally or specifically, can it be argued that the lie was directed to a material issue as I've always assumed that it was and — my thinking was he knew what the allegation was and his denial that the room was — that the door to the room was closed or his assertion that it was open must have gone to a material issue. But the question I ask is does the accused have to be made aware that the allegation is that he sexually assaulted the complainant when the others were out of the room before the jury could conclude he was lying about material issues? So that's the second point.
The applicant submits that the judge should not have determined that the lie told to Calikes or the police could constitute incriminating conduct. The requirement of s 20(1)(b) could not be satisfied as the implied admission was incapable of being one referrable to an ‘offence charged’.
The applicant’s argument rests upon these facts. The applicant was only told by Calikes that the complaint involved a sexual allegation and improper conduct, but was given no precise details of the allegations before he told the lie. Similarly, when interviewed by police he was only told at the beginning of the interview that they were investigating a sexual assault against the complainant and at the time he told the lie, the investigators had not yet put any details of the complainant’s allegations to him. The applicant submits that he had to be made aware of the nature of the allegations made by the complainant as to his conduct while alone in the room in order for the lie to constitute an admission that he had committed one or more of the offences charged. As he was not confronted with the complainant’s allegations, the applicant submits that the lie is too general in nature to be relevant under s 20(1)(b).
This submission must be rejected. It rests upon a misconception of the basis upon which a lie or other incriminating conduct may exhibit an implied admission. Lies and post-offence conduct are a species of circumstantial evidence. Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon ‘the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case’.[1] The incriminating post-offence conduct and other evidence must be capable of supporting the inference that the accused was aware that he had committed the offence charged.
[1]Edwards v The Queen (1993) 178 CLR 573, 201 (Brennan J); R v Ciantar (2006) 16 VR 26, 40 [44].
The rationale for the use of a lie as incriminating conduct was discussed by the High Court in Edwards v The Queen.[2]Deane, Dawson and Gaudron JJ said:
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. ….
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that ‘if he tells the truth, the truth will convict him’.[3]
[2](1993) 178 CLR 193 (‘Edwards’).
[3]Ibid 209 (citations omitted).
The fact that the applicant was not provided with the detail of the complainant’s allegations, does not inform the question of the applicant’s belief. It is the accused’s knowledge that he committed the offence and that the truth would implicate the accused in the offence that supports consciousness of guilt reasoning. The inference is not dependent upon the accused having been informed of the detail of the alleged offence before the post offence incriminating conduct occurs.
An inference of an implied admission may be drawn from flight, concealment of evidence, false alibis, lies, and other forms of post-offence conduct. Incriminating conduct often occurs before any investigation is under way, or before the investigator informs the accused of what is alleged against him. If the evidence, direct or circumstantial, links the accused to the charged offence, the jury may draw conclusions as to his state of knowledge which in turn will inform the question of his belief. It is his knowledge of the conduct comprising the charged offence that is relied upon by the prosecution to explain why the post offence incriminating conduct occurred. It is the accused’s knowledge of the offence that provides the foundation for the inference. As counsel for the Director submits, there could be no doubt that the applicant knew when he was being questioned, albeit that the inquiries were only as to misconduct of a sexual nature, that he knew the detail of what occurred in the motel room. The relevance of his denial of an opportunity to commit any offence was informed by the applicant’s knowledge of what occurred in the motel room and not by the extent to which facts were posited in the questions he was asked.
The judge was right to have concluded that it was well open to the jury to view the lie told to the general manager and the police as an attempt to deny that he had any opportunity to commit the offence as he was never alone with the complainant. Though he had not been informed about the detail of her allegations, the lie he told related to the period when the complainant was in bed and the others had left the room. The prominent hypothesis arising from his lie that the door was open was that the lie sprang from a conscious that the truth would assist in demonstrating his guilt.
The judge did not err in leaving the applicant’s lie to the jury as an implied admission.
Ground 2 — the judge erred in directing the jury that the incriminating conduct concerning the alleged lies about the door to the motel room being open could amount to an implied admission to some form of sexual assault of less seriousness than the charged offences
The applicant submits that the trial judge erred in directing the jury that the incriminating conduct could amount to an implied admission to some form of sexual assault of less seriousness than the charged offences.
The judge was required to direct the jury in accordance with s 21 of the JDA. That section provides:
Mandatory direction on use of evidence of incriminating conduct
(1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that —
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that —
(i) the conduct occurred; and
(ii)the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2)In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Note
Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to ‘knew’ rather than ‘believed’ to better describe what the incriminating conduct, if accepted, may prove.
The Crown concedes that, contrary to the requirement of s 21(1)(a) of the JDA, the trial judge directed the jury that the alleged incriminating post-offence conduct could amount to an implied admission of some form of sexual misconduct of a limited or minor nature rather than of the charged offences. Despite the way it was put by the prosecutor, the jury was not directed that they might treat the evidence as evidence that the applicant believed that he had committed the offence charged. Rather they were directed that the applicant may have believed he was guilty of some improper touching of a minor nature. The Crown submits that the direction was unduly favourable to the applicant and that it has not resulted in a substantial miscarriage of justice.
It is necessary to set out at some length the directions which the jury were given.
First, his Honour reminded the jury that the prosecution case was that the applicant had lied about the two matters when speaking to Calikes[4] and had lied about the same matter when interviewed by the police.[5] As to the applicant’s lie to his superior about the amount of alcohol that was consumed, his Honour reminded the jury that the prosecution relied upon that lie as a matter relevant only to the accused’s credit. The trial judge then gave the jury a conventional warning that the jury should not reason that because a person has shown to have told a lie of this type that he must be guilty. The trial judge reminded the jury of the reasons advanced by the defence as to why the applicant may have lied to his superior about this matter.
[4]See [10]-[11] above.
[5]See [12] above.
The judge then turned to the lie that the applicant was never alone with the complainant after she had gone to bed. His Honour said:
The prosecution argument is that the accused told these lies about the door being open because he perceived that the truth would be inconsistent with his innocence. The argument goes like this. He knew, at least, that a sexual — well, he knew that a sexual allegation was being made against him and realised that if he admitted he was alone with the complainant it would be tantamount to admitting his guilt of some wrongdoing.
Those questioning him would be more likely to know what happened. By implication, argues the prosecution, he is admitting guilt of some sexual assault. He was in effect, argues the prosecution, denying that he had an opportunity to commit the alleged misconduct. That is the argument.[6]
[6](Emphasis added).
We pause to interpolate that that this misstated the way the prosecution was seeking to rely upon the lie. In the prosecutor’s closing address he had reminded the jury that the applicant had said in his record of interview that Calikes had called him into his office and told him that there was a ‘kind of sexual allegation put against me’. The prosecutor had invited the jury to conclude that the applicant had told a deliberate lie ‘because he knew what really happened’. He reminded the jury that when the investigators put to the applicant that he had placed his hands down the complainant’s pants into her underwear and had placed his fingers into her vagina, he had responded ‘No’ and then had added ‘the door was open’. The prosecutor submitted that the applicant repeated this claim that the door was open because he thought that to be an answer to the allegation that he had committed these offences against the complainant. The prosecutor reminded the jury that the applicant altered his position when he said to the investigators ‘oh yeah, the last time when I cleaned up, the door was closed at that point, but only for a pretty short time’. The prosecutor then said:
You can conclude that by implication, by telling these lies, he’s by implication admitting guilt because the reason he’s telling these lies, is because he knows he’s guilty and if he agrees that there were multiple occasions when the door was open [sic] he’d be revealing that he indeed had the opportunity to commit the various offences.
[HIS HONOUR]: When the door was open or the door was closed?
[PROSECUTOR]: Sorry that the door was closed, thank you. That he had the very opportunity to commit the offences that he’s been accused of committing.
The prosecutor then reminded the jury that they could take into account that by telling these lies he had demonstrated that his version of events was not credible. He reminded the jury that even if they rejected the applicant’s version of events it was still necessary for the jury to accept her version beyond reasonable doubt. The jury was reminded that the complainant’s evidence was confirmed by the DNA evidence. The prosecutor then concluded his submission on the lies saying:
Indeed I’m submitting to you that the additional significance of his lie about the door being open is that it in fact reveals guilt. It is an implied admission of guilt that supports her version of events.
It can be seen from the prosecutor’s closing submissions that it was not the Crown argument that the lies were tantamount to admitting guilt of ‘some wrongdoing.’ As the JDA required, the submission was that he had impliedly admitted guilt as to the charged offences.
His Honour then instructed the jury as follows:
I need to tell you that it is open to you to use this alleged lie to Calikes about not being alone with the complainant at any time because the others could see in, or the alleged lie to police about the door being open on the first occasion that [LL] and [JD] went for a smoke, as evidence that the accused believed that he had sexually assaulted the complainant in some manner and he was not prepared to admit that he was alone with her because he was trying to cover for what he had done. So you can use it in that way, it is open to you, but you need to be very careful when considering such an argument.
First, you need to understand that the prosecution argument that he was impliedly admitting guilt of some sexual misconduct only applies to the alleged lie about the open door and the consequent lack of opportunity. Next, it is very important that you do not engage in circular or bootstraps reasoning and assume the accused’s guilt and then conclude the alleged lie was made to cover his guilt. So you can appreciate, I am sure, that would be completely irrational.
You cannot assume his guilt in order to then assess what the lie amounts to. It is also important to understand that even if you accept the prosecution argument about this that would not enable you to conclude that the accused had committed any of the alleged crimes in particular but might only assist you in concluding that he was conscious of committing some inappropriate sexual touching, perhaps of a limited nature.
In other words it might assist you in more readily accepting the evidence of the complainant, but you would still need to consider her allegations and determine what evidence of hers you do and what evidence you do not accept. It is also very important that you understand, as [defence counsel] correctly told you, that you may only use evidence that the accused lied in this way if you find that he (1) told a deliberate untruth and (2) that the only reasonable explanation for doing so is that he believed he engaged in some sexual wrongdoing towards her.[7]
[7](Emphasis added).
The judge then directed the jury as to the evidence that bore upon whether the jury could be satisfied that the applicant had lied. His Honour then returned to the explanation of the lie in these terms:
So the next thing you would have to be satisfied about, as I told you, is that the only reasonable explanation before you could use this argument of the prosecutions against the accused, you have to be satisfied the only reasonable explanation for the accused telling a lie is that he believed he engaged in some sexual — some, I emphasise, sexual misconduct towards her.[8]
[8](Emphasis added).
The learned judge then directed the jury of the need to consider that people may lie for different reasons and not necessarily because they are guilty. Then his Honour reminded the jury of the closing address by defence counsel to the effect that even if the jury accepted that the applicant had not been truthful when speaking to his superior or to the investigating police about whether the door was open or shut, counsel had said:
Even if you accept the accused was not being truthful [defence counsel] said at that stage he did not know how serious the allegations were. So if you are satisfied a lie occurred, you need to see it in that context. He was assuming, argued [defence counsel], that what he was being questioned about was some inappropriate touching of a relatively minor type and only learned of the gravely serious nature of the allegations when the police informed him towards the very end of the record of interview, so that is the point that [defence counsel] was making this morning, if I have summarised it correctly.
So additional to all of that that I have directed you about, I need to warn you that even if you find the accused believed he committed some sexual assault on the complainant and this is why he lied, you must still consider all of the evidence when deciding whether the prosecution has proven the accused’s guilt beyond reasonable doubt. Satisfaction that he lied, as the prosecution claims, is only part of the evidence which you would need to consider in this case.
In other words, even if you were satisfied he deliberately lied then at most this would be to avoid others suspecting that he had engaged in some relatively perhaps minor inappropriate touching. So at the end of the day the complainant’s credibility is still critical and you cannot find the accused guilty of any charge unless you accept that the complainant is truthful and reliable when she gave evidence about the alleged act constituting each separate crime.[9]
[9](Emphasis added).
It is apparent from these directions that the concern which the trial judge had earlier expressed in the passage set out above, that the applicant had not been confronted with the details of the complainant’s allegations, was now reflected in his Honour’s directions.
The applicant submits that the direction was that the jury could only reason that the implied admission related to some uncharged lesser conduct. Further, that created a significant risk that the jury may have reasoned to guilt by an improper pathway. It was submitted that the jury may have concluded that the lie satisfied them that the applicant engaged in inappropriate sexual touching and then by ‘bootstraps reasoning’ concluded that he must also have been guilty of the charged offences and so lied about the door being open to hide the offences charged.
For the reasons that follow, the applicant’s submission that there was a misdirection which resulted in a substantial miscarriage of justice cannot be sustained.
The Full Bench of this Court rejected the argument in Ciantar v The Queen,[10] that it would only be a rare case where the proviso may be applied in a case where the Crown relied on consciousness of guilt evidence and the trial judge has misdirected the jury. There are of course ‘natural limitations’ in the application of the proviso where the Crown case on consciousness of guilt relies heavily on the evidence of a witness whose credibility was in issue but the nature of the present misdirection is not such as to prevent its application. The misdirection, if it should be so described, informed the jury that they could treat the evidence as evidence of the applicant’s belief that he was guilty of some improper sexual conduct but did not explicitly direct the jury that they may treat it as evidence that he believed he had committed the charged acts.
[10](2006) 16 VR 26 (‘Ciantar’).
The reason why directions under the JDA as to incriminating conduct are required remains that stated by the High Court in Edwards, and repeated in these terms in Ciantar:
[It] is necessary to avoid the risk of a miscarriage of justice occasioned by the jury impermissibly jumping to the conclusion that merely because, for example, the offender lied about an aspect of the case, he or she necessarily did so because of a recognition of guilt and a fear of the truth. … Otherwise the treatment of consciousness of guilt evidence is relevantly no different from that of other circumstantial evidence in that the jury may be asked to infer from it the conclusion for which the Crown contends. A failure to direct sufficiently on consciousness of guilt will often, if not usually, result in a miscarriage of justice, but it will not amount to a ‘substantial miscarriage of justice’ just because the misdirection related to consciousness of guilt evidence.
The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This is often likely to be so where the Crown relies principally upon circumstantial evidence. Furthermore, the appellate court may also be in as good a position as the jury to assess the post-offence conduct in conjunction with the rest of the circumstantial evidence, to determine whether it gives rise to the inference that the post-offence conduct exhibited consciousness of guilt by the offender and whether, in the circumstances, he or she is guilty of the offence in question. Thus, subject to the qualifications stated in Weiss, and the necessity to bear in mind the matters of principle that were articulated by Kirby J in Darkan to which reference has been made, we consider that, ordinarily, the mere fact that the misdirection relates to consciousness of guilt evidence does not mean that the resulting miscarriage of justice must be treated as a ‘substantial miscarriage of justice’ such as to preclude the application of the proviso.[11]
[11]Ibid 59–60 [110]–[112].
Despite the Crown’s written case to the contrary, the Crown conceded in oral argument that the direction was in error. The appeal proceeded upon the basis that there was a misdirection. We are satisfied that if there was a misdirection it made no difference to the outcome of the trial or that with an appropriate direction, there was no possibility that the jury may have entertained a reasonable doubt about the applicant’s guilt. In our opinion the applicant’s conviction was inevitable.
First, the inference, if any, that the jury drew from the lie as to consciousness of guilt was unaffected by the jury’s assessment of the credibility of the complainant. The jury obviously accepted the complainant’s account as truthful. Thus, if consciousness of guilt was to be inferred from the false denial that he had the opportunity to engage in sexual misconduct, the inference was inescapable that the lie constituted an implied admission as to the charged offences.
Second, if contrary to the view we express below that the direction satisfied the requirements of s 21(1)(a),[12] it was not a misdirection that would have resulted in the jury engaging in impermissible reasoning. The lie which the applicant told Calikes and repeated to investigators related to the period of time when the complainant had been placed in her bed and JD and LL had left the room. JD and LL left the room on two occasions, leaving the applicant alone in the room with the complainant. It is clear that the applicant’s lie that the door was open related to that time period.
[12]See below [56].
It was for the jury to decide, on the basis of the evidence as a whole, whether the lie related to any of the conduct described by the complainant. The complainant had alleged only that the applicant committed the four offences alleged whilst in the room alone with her. She did not allege that there was any other improper touching when the others left the room. The false account given by the applicant provides no factual foundation for an inference. Hence the argument that it may have been inferred that his lie related to some other improper conduct committed during the time that they were alone and which was not the subject of the charges, had no factual foundation. As the applicant acknowledged during oral argument, there was no evidence from the complainant to support such an explanation. He acknowledged that the prosecution had not suggested that any such uncharged act had occurred. The jury, acting upon the judge’s directions as to how they might reason from the lie that was told, could not have concluded that the applicant lied because of a belief that he had done some act other than those charged that was of an improper nature. Applying the direction to the evidence, the inference was not open that the applicant lied to conceal some other improper sexual touching while he was alone with the complainant whilst she was in bed. And if the jury did not consider the direction permitted them to infer that the lie was told out of a consciousness that he had committed the charged offences, then assuming they applied the judge’s direction, the evidence did not permit any other inference to be drawn.
Third, if the judge’s direction resulted in the jury concluding that the applicant had lied because of a desire to conceal some improper conduct other than charged, had the jury been correctly instructed that they may treat the evidence as evidence that the applicant believed that he had committed the offence charged, the state of the evidence was such that the jury would inevitably have also drawn that inference. As senior counsel accepted in oral argument, the lie constituted a denial that he had the opportunity to engage unobserved in intimate sexual misconduct. The substance of the lie subsumed the offences charged. No meaningful distinction could be made on the evidence between a belief of guilt as to some other improper conduct and a belief of guilt as to the charged conduct. That is to say, if the jury found that the applicant had lied and that he did so because of his knowledge that he had done something improper to the complainant whilst alone in the room with her, it was inevitable on the state of the evidence, that the jury would have also concluded, had they been directed to that effect, that he lied because he knew he had committed one or more of the offences charged. Counsel for the respondent rightly submits that if the applicant was conscious of inappropriate sexual touching, then the inexorable conclusion was that it was also consciousness of the charged acts.
Fourth, the judge complied with the requirement under s 21 (1)(b) that the jury be warned that even if they conclude that the accused believed that he committed the offence charged, they must still decide whether the prosecution has proved the guilt of the accused on the basis of the evidence as a whole. He also cautioned the jury in accordance with s 22 by warning the jury that people may lie for all sorts of reasons, not necessarily because they are guilty.
Finally it should not be overlooked that whether a misdirection has the consequence that it amounts to a miscarriage of justice is to be assessed by taking into account the context in which it occurs including the manner in which the trial was conducted.[13] The fact that defence counsel made an informed decision as to how the issues should be contested is itself an exercise of the right to a fair trial. For that reason appeal courts attach significance to such decisions in considering whether the course of the trial has occasioned a miscarriage of justice. Defence counsel was rightly concerned that the lie would be seen by the jury as an implied admission of guilt of the charged offences. Thus he refrained from any objection to the form of the direction which supported the very submission he had advanced to the jury. He had submitted to the jury that the belief which might be inferred from the lie depended upon the detail of the allegation to which the applicant was responding. That argument was fallacious for the reasons we have already given. Counsel naturally raised no objection to the direction. The judge told the jury his direction was consistent with defence counsel’s submission. It was a direction which may have reduced the likelihood that the jury would employ the lie in its most damaging way.
[13]Tunja v The Queen [2013] VSCA 174 [18].
We are also of the view however, that the direction did not constitute a misdirection. Although the judge did not refer to the applicant’s belief as a belief ‘that he had committed the offence charged’, it would be sufficient to satisfy the requirements of s 21(1)(a) if the judge told the jury that the applicant believed he had committed certain acts, so long as those acts could constitute the offence charged. Charge 1 was that the applicant touched the complainant’s breasts under the cover of the bed. That conduct satisfied the descriptions of ‘some sexual misconduct,’ a ‘sexual assault in some manner,’ ‘some inappropriate sexual touching,’ or some ’sexual wrongdoing’ stated by the trial judge as the applicant’s belief which could be inferred from the applicant’s lies. The judge did not exclude conduct that constituted any of the charged acts as being conduct which could form the basis of the applicant’s belief that he was guilty. It would have been preferable if the trial judge had referred explicitly to the precise acts constituting the offence, but that is not necessary in order for the direction to satisfy the requirements of the provision. Had the jury concluded that the applicant’s belief was that he was guilty of the act constituting charge 1, in our view that would have been in conformity with the direction that was given.
If there was a misdirection, for the purpose of s 276 Criminal Procedure Act 2009, we are concerned with the second kind of case discussed by the High Court in Baini v The Queen,[14] where there has been an error or an irregularity in the trial.[15] As this Court said in Hothnyang v The Queen,[16] with respect to an error of that second kind, the question is whether the error or irregularity made a difference to the outcome of the trial.[17] In Crocker v The Queen,[18] the Court (Redlich JA, with whom Priest JA and Robson AJA agreed) rejected the argument that the failure to properly instruct the jury as to consciousness of guilt reasoning from the applicant’s lies resulted in a substantial miscarriage. Redlich JA said:
In Andelman v R, the court (Maxwell P, Weinberg and Priest JJA) outlined the ‘salient points’ that emerged from the majority’s analysis in the High Court. They noted, inter alia, that a finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the question of whether a substantial miscarriage of justice had occurred, and that in assessing inevitability, the Court of Appeal must ‘decide that question on the written record of the trial’. The applicant submits that, applying Baini, as explained in Baini (No 2) and Andelman, the prosecution cannot demonstrate that the failure to properly instruct the jury did not result in a substantial miscarriage. …
There are natural limitations involved in proceeding on the record of the trial. There must be a logical, cogent and compelling basis, as distinct from speculation, for the conclusion that there has been no substantial miscarriage of justice. Approaching the question in that manner, I do not accept the applicant’s contention that the possibility that the jury impermissibly inferred consciousness of guilt from the applicant’s lies, permits the conclusion that, had the jury not so reasoned, the jury may have entertained a doubt as to his guilt.[19]
[14](2012) 246 CLR 469 (‘Baini’).
[15]Ibid 479 [26].
[16][2014] VSCA 64.
[17]Ibid [30].
[18](2013) 39 VR 668.
[19]Ibid 676 [22]–[23] (citations omitted).
The High Court refused special leave to appeal.
In the context of this trial, the misdirection did not occasion a substantial miscarriage of justice. The misdirection, even if it was understood as limiting the nature of the inference to something less than a consciousness of the charged acts, could not have made the slightest difference to the verdict. It cannot be said that the misdirection made any difference to the outcome of the trial.
We would grant leave to appeal but dismiss the appeal against conviction.
B. Appeal against sentence
The applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1. Indecent assault [Crimes Act 1958 s 39(1)] 10 years 5 months 1 month 2. Rape [Crimes Act1958 s 38(1)] 25 years 3 years and 6 months 6 months 3. Rape [Crimes Act1958 s 38(1)] 25 years 3 years and 9 months 7 months 4. Rape [Crimes Act1958 s 38(1)] 25 years 6 years Base Total Effective Sentence: 7 years and 2 months’ imprisonment Non-Parole Period: 4 years and 9 months’ imprisonment Pre-sentence Detention Declared: 4 days 6AAA Statement: N/A Other orders: Sentenced as a serious sexual offender on charges 3 and 4.
The applicant submits that the individual sentences, total effective sentence, and non-parole period are each manifestly excessive. The applicant submits that it must be inferred from the sentence imposed, that excessive weight was given to the objective seriousness of the offending, the impact of the offending on the victim, and punitive sentencing principles. The applicant acknowledges that the offending was serious, and involved a breach of trust between co-workers. He submits however that the offending was opportunistic and spontaneous and occurred over a relatively short period of time. The applicant submits that when one balances these considerations against the mitigatory factors of the applicant’s age of 46, the absence of any prior criminal history; continued family support; good character evidence and work history; and excellent prospects for rehabilitation, that the sentence was manifestly excessive.
The focus of the appeal was on the base sentence of 6 years. The Crown acknowledges during oral argument that the sentence imposed on the base charge of rape was towards the upper end of the available range. However, counsel for the Director maintains that the sentence was within a sound discretionary range, when one considers a number of factors:
The applicant was the complainant’s supervisor, and there was a considerable age gap in their ages (the complainant was 19, the applicant 44 at the time of offending). He had the power to hire and fire staff. The nature of the relationship was such that a significant power inequality existed between the applicant and complainant, which was exploited by the applicant;
The offending was a breach of trust. The complainant was away from home and in the company of the applicant in a work capacity. The complainant was entitled to feel safe and secure with her supervisor;
The complainant saw the applicant as a father figure. The applicant was aware that she viewed their relationship in that light;[20]
The applicant encouraged the complainant to drink alcohol, and assured her nothing would happen as he was there to look after her.[21] The applicant was incapacitated by virtue of her intoxication, a fact which the applicant was well aware of;
The applicant took advantage of the complainant’s vulnerable situation, and pursued his own sexual gratification at a time when the victim could not protest or resist;
The offending comprised two episodes, whereby between the two episodes the applicant spoke of his love for his staff and how he loved the complainant like his own children. He had time to reflect upon his actions and decided to continue to offend against the complainant.[22]
[20]DPP v Di Giorgio [2015] VCC 1365 [11] (‘Reasons’).
[21]Ibid [11].
[22]Ibid [7].
The Crown submits that the matters in mitigation relied on by the applicant above were not of such force as to reduce the weight to be given by the sentencing judge to principles of general and specific deterrence, just punishment and denunciation. Further, the Crown notes that the applicant fell to be sentenced as a serious sexual offender in respect of charges 3 and 4, and therefore protection of the community was a principal sentencing purpose in respect of those charges.
The Crown also relies on the Sentencing Advisory Council’s ‘Sentencing Snapshot’ for the offence of rape,[23] which records that in the five years to June 2015, the median sentence for rape is five years’ imprisonment.[24] Counsel recognised the constraints relating to the Snapshot, and the use of the ‘median’ sentence as any indication of practical significance.[25] The Crown relies upon a number of comparable sentences for rape following a plea of not guilty and which, it is submitted, are relevant to the assessment of the appropriate sentence.
[23]Sentencing Advisory Council, ‘Sentencing Trends for rape in the higher courts of Victoria 2009–10 to 2013–14’ (Sentencing Advisory Council, Sentencing Snapshot no 176, 26 June 2015).
[24]Ibid 5.
[25]DPP v Walters [2015] VSCA 303.
The first was Director of Public Prosecutions v Werry.[26] The applicant received a sentence of 7 years on one charge of rape and a 4 month sentence for trafficking a drug of dependence, resulting in a total effective sentence of 7 years and 1 month, and a non-parole period of 5 years. The victim in Werry was 17 years old, and intoxicated. The respondent had offered her a lift home and raped her by placing his penis in her vagina. The respondent was 28 at the time of sentence, and had prior convictions, mostly driving matters, and had never previously served a gaol sentence. The Director’s appeal against sentence was dismissed. The applicant rightly submits that Werry should be seen as a more serious case of rape involving additional violence, much different to the opportunistic offending in the present case.
[26][2012] VSCA 208 (‘Werry’).
In Ali v The Queen,[27] the offender received a sentence of 1 month and 6 months on two charges of indecent assault respectively, and 4 years and 5 years 6 months on two charges of rape, which resulted in a total effective sentence of 7 years 1 month, with a non-parole period of 4 years 9 months. In Ali the victim was intoxicated and lying in the street semi-conscious. The appellant was a taxi driver who stopped and digitally penetrated the victim’s vagina. The appellant then returned to his cab when he feared being discovered. Shortly afterwards he returned to the victim and digitally penetrated her a second time. The appellant was 48 at the time, and had no previous criminal history. His appeal against sentence was dismissed.
[27][2013] VSCA 294 (‘Ali’).
In Singh v The Queen,[28] the appellant was socialising with the victim who was an employee who was intoxicated. The appellant purported to drive the victim home. He drove to a dead end street near his business and raped the victim by placing his penis in her vagina. During the rape the victim lost consciousness. The appellant was 32 at the time and had no previous criminal convictions. The appellant’s appeal against a sentence of 7 years’ imprisonment on the single charge of rape was allowed, and a sentence of 5 years and 6 months, with a non-parole period of 3 years and 3 months was imposed.
[28][2014] VSCA 250 (‘Singh’).
The Crown here submits that although there are some parallels between this matter and Singh, the offence did not occur in the course of the appellant and victim’s employment, and the appellant withdrew before he ejaculated. The Crown submit in those circumstances that the present sentence, which was six months’ greater than that imposed on appeal upon Singh for a single count of rape could be seen as reflecting the differences in the type of offending.
The trial judge described the applicant’s conduct as brazen, with a high risk of detection.[29] It involved a significant breach of trust, and an exploitation of a relationship of both power and affection. While the applicant had considerable support from family and friends who could not accept that he had committed the crimes, his Honour rightly observed that this could be seen as a reflection of the high and trusted regard in which he was held.[30] Just punishment, general deterrence, specific deterrence, community protection and denunciation were all relevant, as was the need to foster the applicant’s rehabilitation.[31] We agree with the Crown submission that the individual sentence of 6 years on the charge of rape was towards the upper end of the range of available sentences. Hence the Crown conceded that leave ought be granted on the appeal. We are not however persuaded that the individual sentence on charge 4 was beyond a sound exercise of the sentencing discretion. The orders for cumulation between the charges was modest but necessary to reflect the fact that the offences occurred as two episodes. The total effective sentence and non-parole period are not beyond the appropriate range available to the sentencing judge.
[29]Reasons [24].
[30]Ibid [17].
[31]Ibid [22].
We would dismiss the appeal against sentence.
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