DLS v Tasmania
[2024] TASCCA 10
•6 September 2024
[2024] TASCCA 10
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | DLS v Tasmania [2024] TASCCA 10 |
| PARTIES: | DLS |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2843/2023 |
| DELIVERED ON: | 6 September 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 May 2024 |
| JUDGMENT OF: | Blow CJ, Martin AJ, Porter AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence - Appeal dismissed – Penetrative sexual abuse of a young person – Whether open to jury to find crimes committed during period specified in indictment.
Aust Dig Criminal Law [3476]
Cases cited:
Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173, 55 VR 543
M v The Queen (1994) 181 CLR 487
R v Dean [1932] NZLR 753
R v Dossi (1918) 13 Cr App R 158
R v Hughes [2000] NSWCCA 3
R v Jacobs [1993] 2 Qd R 541
R v McDonald (1995) 65 SASR 322
R v Pfitzner (1976) 15 SASR 171
REPRESENTATION:
Counsel:
Applicant: R Barry Respondent: P Sherriff
Solicitors:
Applicant: Josh Smith Legal – Barristers & Solicitors Pty Ltd Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASCCA 10 |
| Number of paragraphs: | 37 |
Serial No 10/2024
File No CCA 2843/2023
DLS V STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ MARTIN AJ PORTER AJ 6 September 2024 |
| Orders of the Court: |
1 Leave to appeal granted.
2 Appeal dismissed.
Serial No 10/2024
File No CCA 2843/2023
DLS V STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ 6 September 2024 |
1 This is an application for leave to appeal against four convictions for sexual crimes. The applicant, DLS, was charged on a single count of persistent sexual abuse of a young person, contrary to s 125A(2) of the Criminal Code. He stood trial before Jago J and a jury. The Crown contended that he had committed unlawful sexual acts against a 14-year-old girl on eight occasions "between on or about 1 January 2021 and 3 February 2021". The jury found him not guilty of the crime charged, but guilty of four crimes of penetrative sexual abuse of a young person, contrary to s 124(1) of the Criminal Code. Those findings related to occasions described at the trial as "Occasion two" and "Occasion four". In relation to each of those occasions, the jury found that the applicant had penetrated the complainant's vagina with his fingers, and then penetrated her mouth with his penis. The learned trial judge sentenced him to 2 years 6 months' imprisonment, with a non-parole period of 15 months. This is an application for leave to appeal from those convictions. The notice of appeal contains a single ground, which was amended at the hearing to assert that the verdicts of the jury should be set aside on the ground that they cannot be supported having regard to the evidence.
2 This is an application for leave to appeal, rather than an appeal, because of the provisions of s 401(1) of the Criminal Code. That sub-section reads as follows:
"401 Right of appeal (1) A person convicted before a court of trial may appeal to the Court –
(a) against his conviction on any ground which involves a question of law; (b) with the leave of the Court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against his conviction upon a ground of appeal – (i) which involves a question of fact alone;
(ii) which involves a mixed question of fact and law;
(iii) which appears to the Court to be a sufficient ground of appeal; and against the sentence passed on his conviction, unless the sentence is one fixed by law."
(c)
3 Since the appeal is not based on a pure question of law, the applicant requires the leave of the Court to successfully impugn his convictions. In accordance with this Court's usual practice, the ground of appeal was fully argued.
4 The learned trial judge directed the jury to the effect that they could not find the applicant guilty of the crime charged unless, in relation to at least three of the eight occasions, they were satisfied beyond reasonable doubt that (a) he had committed at least one unlawful sexual act in relation to the complainant, and (b) the act or acts committed on the particular occasion were committed during the period referred to in the indictment.
5 At the start of the trial it was the Crown case that the applicant committed unlawful sexual acts on eight occasions during the period specified in the indictment, namely "between on or about 1
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January 2021 and 3 February 2021". However, after the complainant had given evidence about the eight occasions, the prosecutor asked her some questions about the timing of the occasions, and she gave evidence that the last occasion was about a week before she gave her first statement to the police. She gave that statement on 25 July 2021.
6 The evidence about the period of sexual abuse extending until July 2021 was given during the complainant's evidence-in-chief. No application to amend the indictment to extend the charge period was made at that stage. There were only three witnesses at the trial – the complainant, her mother and a police officer. After the Crown case had closed, the applicant elected neither to give nor adduce evidence, and the learned trial judge began a discussion in the absence of the jury as to her proposed directions. She drew attention to the discrepancy between the period charged in the indictment and the complainant's evidence as to the timing of the alleged occasions. That prompted the prosecutor to apply for leave to amend the indictment by changing the end of the charge period from 3 February 2021 to 14 July 2021. That application was opposed. Defence counsel argued that he had cross- examined the complainant and conducted the defence case on the basis that the prosecution were required to prove unlawful sexual acts during a period ending in February, not July. At the conclusion of his submission, the prosecutor agreed with him and withdrew the amendment application.
7 Accordingly, the learned trial judge gave the direction that the jury could not convict the applicant of the crime charged unless they were satisfied beyond reasonable doubt that he committed unlawful sexual acts on at least three occasions during the period specified in the indictment. The jury began their deliberations on a Monday, dispersed overnight, and sent the learned trial judge two written questions when they returned on the Tuesday morning:
• "If we find three or more offences, either partly within or wholly outside the indictment period, can he be found guilty of persistent sexual abuse of a young person?" • "Can we find the accused guilty of more than two alternate verdicts if they fall outside of the time period and does the time period apply to the alternate verdicts?" 8 Her Honour told counsel that she proposed to tell the jury that they must find three occasions within the indictment period to convict of the crime charged, and that they could bring in alternative verdicts of guilty of any crime that they found was committed within the indictment period, but that they did not have to be satisfied beyond reasonable doubt as to the particular date. Both counsel said that they did not wish to make any submissions as to those answers, and her Honour directed the jury accordingly.
9 When a conviction is challenged on the basis that the verdict of the jury cannot be supported having regard to the evidence, it is common for a submission to be made that the evidence lacked probative force to such an extent that the jury should have had a reasonable doubt as to the alleged criminal act having occurred at all. No such submission was made in this case. Counsel for the applicant submitted that the evidence of the complainant lacked probative force to such an extent that the jury could not properly have been satisfied beyond reasonable doubt that the events described in relation to Occasion two and Occasion four occurred within the periods specified in the indictment. He did not argue that the evidence of the complainant was so weak that the jury could not have been satisfied beyond reasonable doubt that such events occurred at all. He made it clear that his submission related to the proposition that the evidence was not strong enough to support findings of guilt in relation to the period specified in the indictment.
10 The applicant contends that the evidence as to the timing of the eight alleged occasions was so inadequate, vague, confused and inconsistent that it was not open to the jury to be satisfied beyond reasonable doubt that the events said to have occurred on Occasions two and four occurred during the period referred to in the indictment.
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11 There was uncontroversial evidence at the trial that the 2021 school year began on Tuesday, 2 February. The period specified in the indictment reflected the expectation that the complainant would give evidence of acts of sexual abuse that occurred in early 2021 during the summer school holidays and not thereafter.
12 It is necessary to analyse the evidence as to the timing of the alleged unlawful sexual acts in considerable detail. My summary of that evidence, with some comments, is as follows:
•
The complainant gave evidence that she first met the applicant when she was in year 8. The evidence established that she completed year 10 in or before 2022. When interviewed by police officers on 25 July 2021 the applicant accepted that he first met the complainant around 12 months previously, give or take a couple of months. Thus there was evidence that the complainant first met the applicant in 2020.
•
In her evidence-in-chief as to Occasion one, the complainant said that the events happened when it was "still during school holidays". When asked which holidays she said, "The big summer sort of one that's there so through Christmas and New Years." The complainant gave evidence to the effect that on Occasion one she was in the applicant's bed with him, and that he first inserted his fingers into her vagina and then exposed his penis and inserted it into her mouth.
•
Under cross-examination she gave evidence that she told the police in her second police statement that Occasion one occurred in January 2021.
•
In relation to Occasion two, the complainant gave evidence to the effect that she and the applicant went for a drive in his Ford Falcon utility; that he stopped somewhere along a particular road and put his fingers into her vagina; that they drove on; and that she twice gave him oral sex while he was driving. She was asked whether the journey in question was before or after the occasion that became known as Occasion one. She said that the journey was after that occasion.
•
As to Occasion three, the complainant gave evidence to the effect that she was again in the applicant's bed with him, that he inserted his fingers into her vagina, that he then inserted his penis into her mouth, and that he then inserted his penis into her vagina when she was telling him not to do that. She said nothing at that stage as to the timing of Occasion three.
•
In relation to Occasion four, the complainant said that there was a third time when she was in the applicant's bed with him, and that it was after the second such occasion (Occasion three). At first she said she could not remember how much later Occasion four was after Occasion three. She proceeded to give evidence that the applicant inserted his fingers into her vagina and his penis into her mouth on Occasion four. The prosecutor then asked a second time about how long after the previous occasion this occasion was. The complainant replied, "Maybe it might have been a week. Around about that sort of time."
•
As to Occasion five, the complainant gave evidence to the effect that she was sitting with the applicant in his lounge room when he inserted his fingers into her vagina and then inserted his penis into her mouth. When asked about the timing of this incident, she said, "It was after the third bedroom incident".
•
As to Occasion six, the complainant gave evidence to the effect that the applicant inserted his penis into her mouth in a shed at his residence. She was not asked about timing when she gave that evidence.
•
As to Occasion seven, the complainant gave evidence to the effect that the applicant had sexual intercourse with her, inserting his penis into her vagina from behind, in a caravan at his residence. The complainant said that the applicant asked her to babysit for him on that occasion because he
4 No 10/2024
was going out, and that she thought it was to a football game. Football is not normally played
during the summer.
• As to Occasion eight, the complainant gave evidence to the effect that the applicant licked her genitalia and vagina in another vehicle (not the Falcon utility) in a paddock at his residence. • Subsequently the prosecutor asked the complainant some questions about the timing of various occasions. He asked her about the timing of the applicant sending her a video depicting him masturbating. He asked where that fell "into the scheme of things". The complainant responded "Sort of in between the second and the third incident at the bed." Then the prosecutor asked her about the timing of the incident I have referred to as Occasion two, involving a drive in the Falcon. The complainant gave an answer that included the words, "So there was the first bedroom incident and then the car and then the." It appears that the prosecutor interrupted her at that point. He elicited evidence that the video was sent some time after the second bedroom incident. The evidence that the complainant gave at this stage was disjointed, but it is of critical importance in relation to timing of Occasion two. I will set it out in full later in these reasons. • When asked about the time difference between the first occasion and the last occasion the complainant replied, "Um months roughly, yeah months." When asked about the timing of the various incidents in relation to school starting for the year she said, "Um so the first couple of incidents I can't remember exactly when I went back to school but they were towards the end – was when I started going back to school, and the last maybe three or four incidents was the last – it was when school started again." • During her cross-examination, when asked about the timing of events in relation to the start of the 2021 school year, the complainant said, "I can't remember the exact times of when and what happened. School year sort of started around – in between where the caravan and the shed sort of incident happened, around about that time." The caravan incident was Occasion seven. The shed incident was Occasion six. • When asked when the last incident (Occasion eight) occurred, the complainant said, "Probably like a bit before the start of – around about July maybe or around about that sort of time around July." Then she said, "It was – it would have been a bit before July." A little later she said, "It would have been – I think – sorry, I can't remember exactly cos when I had given my statement, it would have been a bit before then. So as it would have been around about a week before I gave my very first statement and about a week before then." The evidence established that she gave her first statement to the police on 25 July 2021. 13 When it is contended that the verdict of a jury cannot be supported having regard to the evidence, the approach to be taken by the appellate court is as stated by Mason CJ, Deane, Dawson and Toohey JJ in the following passage in M v The Queen (1994) 181 CLR 487 at 494–495:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence
5 No 10/2024
it was open to the jury to be satisfied beyond reasonable doubt that the accused was
guilty." (Footnotes omitted.)
14 The same principles need to be applied by this Court in evaluating the submissions made on behalf of the applicant, bearing in mind that the question here is whether the conclusions of the jury as to timing in relation to Occasions two and four can be supported having regard to the evidence.
15 The complainant's evidence-in-chief as to Occasion two can be summarised as follows. The applicant had a number of vehicles including a Ford Falcon utility. There was an occasion when she went for a drive with him in that vehicle. He had just fixed something on that vehicle and was taking it for a test drive to see how it went. They travelled on some back roads. They stopped somewhere along the road. He put his fingers in her vagina. He stopped that. Then, as they were driving along, she gave him oral sex while he was driving. They were heading towards a particular town, arrived there, and then went back to the applicant's house. There were two separate seats in the front of the vehicle, not a bench seat. It was pretty dirty, very old, and had cobwebs through it. It was a manual vehicle. The gearshift was between the seats. After the oral sex they stopped because of roadworks at a place where there were people around. She resumed giving the applicant oral sex after they travelled further.
16 The questions and answers relevant to the question of when Occasion two occurred in relation to Occasion one, according to the transcript, were as follows:
"Can you give me an example of a picture that he sent you ?..... He'd sent a video of
him masturbating and sent it to me.Okay, this may be difficult but I'll do my best to put the question to you as clearly as I can. At what point in your time that you knew [the applicant] do you think that you got that – just that message or that video that you've just talked about then? Where has that – where does that fall into the scheme of things?..... Sort of in between the second and the third incident at the bed.
Okay, now by my memory, correct me if I've got this wrong but do you recall the second incident that you described this morning as being an occasion where you went driving in a car – the Falcon, does that - what you remember as the second incident?.....As in – like as in what I mentioned before?
Yes, the - ?..... Sorry, I meant the second incident as in the bedroom. So there was the first bedroom incident and then the car and then the
So the video message that you are referring to – you're saying that happened somewhere between the second bedroom incident – is that right?.....Yes.
Okay alright, so sometime after that incident?..... Yeah."
17 The jury had the advantage of seeing and hearing the complainant giving her evidence. The transcript reveals what she said but not how she said it. In my view it was open to the jury, taking the passages that I have quoted as a whole, to infer that the complainant was explaining that the incident involving the Falcon (Occasion two) came after the first bedroom incident (Occasion one) but before the third and fourth bedroom incidents (Occasions three and four).
18 The complainant's account of events in relation to Occasion four can be summarised as follows. There were a number of occasions when sexual activity occurred between her and the applicant in his bed. This was the third of those occasions. She had stayed overnight at his house. His children were visiting their mother. His partner had gone to work. She got under the covers. For a while they just cuddled. Nothing happened until he put his fingers in her vagina. Then she gave him oral sex and he ejaculated. She did not swallow his semen. She spat it out in the sink.
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19 Her mother gave evidence that she told her that she had performed oral sex on the applicant on more than one occasion, and that on one of those occasions he had ejaculated. The complainant's mother also gave evidence that she told her about sexual activity in the applicant's bed.
20 In my view it was open to the jury to infer that Occasion four occurred before the start of the 2021 school year on the basis of the evidence from the complainant suggesting that only the last three or four incidents were when school had started again.
21 In my view it is possible to discern a rational basis for the jury properly applying their minds to the evidence and concluding that they were satisfied beyond reasonable doubt that only the events described in relation to Occasions two and four occurred during the indictment period. Counsel for the applicant did not argue that there was an inconsistency between the verdicts in relation to Occasions two and four and the outcome in relation to the other six occasions relied upon by the Crown that demonstrated material error. However I think it appropriate to make some comments to rebut that proposition.
22 First of all, because of the evidence given by the complainant as to the timing of the last three or four occasions, the jury may well have concluded that they were not satisfied beyond reasonable doubt that the last four occasions fell within the period specified in the indictment.
23 The jury may well have concluded that the complainant's evidence about Occasions one and three was too unreliable for them to be satisfied of beyond reasonable doubt as to the conduct alleged in respect of those occasions.
24 Under cross-examination, the complainant admitted to making incorrect statements as to matters of detail in relation to Occasions one and three. As to Occasion one, she agreed with defence counsel that she had told the police in her first statement that she had asked the applicant if she and he could "do it". At trial, she admitted that that was false, and that it was a deliberate intentional lie that she told to the police.
25 In her evidence-in-chief concerning Occasion three, the complainant said that the applicant had used one of his partner's sexual toys on her. She said that it was pink, and that he could control the vibration from his phone. She said that the sex toy was inserted into her vagina. Under cross- examination, she conceded that she had not told the police that. In her second police statement she said that the applicant had shown her the toy, but not that he had used it. Her mother gave evidence that the complainant told her that the applicant got a pink sex toy from his bedside drawer and wanted to use it on her, but that she refused him.
26 However the jury may well have regarded the evidence in relation to Occasions two and four as compelling. The complainant's account as to Occasion two was detailed evidence of a memorable and unusual journey in the Falcon utility. Her evidence in relation to Occasion four was corroborated by evidence from her mother, who said she had told her of the applicant ejaculating on one of the occasions when oral sex was performed on him.
27 It is clear that the complainant was an inarticulate witness, and that the evidence as to the timing of various events was not ideally presented. However, on the basis of the passages in the complainant's evidence that I have referred to, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt not just that the events described in relation to Occasions two and four occurred, but also that they occurred during the period specified in the indictment, before the start of the 2021 school year. It follows that in my view the ground of appeal cannot succeed.
28 I would like to add some observations in relation to the directions of the learned trial judge concerning the need to be satisfied beyond reasonable doubt that alleged events occurred during the indictment period.
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29 As I have said, the applicant was indicted on a single count asserting that he committed a crime contrary to s 125A(2) of the Criminal Code. Section 125A(3) provides as follows:
"(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years – (a) the accused committed an unlawful sexual act in relation to the young
person on at least 3 occasions; and(b) the young person was not married to the accused." (My emphasis.)
30 When it is alleged in an indictment that a crime was committed on or about a particular date, or within a particular period, as a general rule it does not matter if the stated date or period is incorrect or if the date of the commission of the crime cannot be clearly identified. In R v Dossi (1918) 13 Cr App R 158, Atkin J (as he then was), delivering the judgment of the Court of Criminal Appeal, said at 159:
"From time immemorial a date specified in an indictment has never been a material
matter unless it is actually an essential part of the alleged offence."
31 After referring to some ancient authorities, his Lordship said at 160:
"Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence."
32 That has been accepted as the general rule in Australia: R v Jacobs [1993] 2 Qd R 541; R v McDonald (1995) 65 SASR 322; R v Hughes [2000] NSWCCA 3.
33 However considerations of fairness in a particular case may make it necessary for a trial judge to direct that the prosecution should be bound by the particulars as to time or date stated in the indictment: R v Pfitzner (1976) 15 SASR 171; R v Dean [1932] NZLR 753. That will be the case, for example, when the accused relies upon an alibi defence in relation to a particular day.
34 It seems to me that, when he abandoned his application to amend the indictment, the prosecutor accepted that this was a case where fairness required the Crown to be bound by the dates particularised in the indictment. In my view it cannot be said that this case is authority for the proposition that the reference to "a particular period" in s 125A(3) of the Criminal Code must result in the Crown always having to prove beyond reasonable doubt on a s 125A charge not just that unlawful sexual acts were committed on three or more occasions, but also that those occasions were during the particular period specified in the charge. It is worth noting that, in relation to comparable but differently worded legislation in Victoria, that State's Court of Appeal has held that a reference to a "specified period" in the relevant legislation did not make proof of timing essential: Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173, 55 VR 543.
35 For the reasons stated, I would grant leave to appeal, but dismiss the appeal.
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File No CCA 2843/2023
DLS V STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 6 September 2024 |
36 I agree with the orders proposed by Blow CJ and with his Honour's reasons.
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File No CCA 2843/2023
DLS V STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PORTER AJ 6 September 2024 |
37 For the reasons given by the Chief Justice, I agree that leave to appeal should be granted but
the appeal be dismissed.
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