F C J v The Queen
[2012] VSCA 292
•6 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0838 |
| FCJ |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, BONGIORNO JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 April 2012 | |
DATE OF JUDGMENT/ORDER: | 6 December 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 292 | 1st revision 7 December 2012 page 15 para 45 (iv), line 1 |
JUDGMENT APPEALED FROM: | Unreported, Judge Duckett County Court of Victoria, Date of Sentence 21 August 2009 | |
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CRIMINAL LAW – Sexual offences – Severance of counts – Accused might be prejudiced or embarrassed by the joinder of counts – Propensity direction required – Lie by the accused capable of disclosing consciousness of guilt – Direction by trial judge confusing – Verdict on one count unsafe and unsatisfactory – Failure to give the caution required by s 398 of the Crimes Act 1958 (Vic) did not cause a miscarriage of justice – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C W Beale SC | James Dowsley & Assocs (Frankston) |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Coghlan AJA.
BONGIORNO JA:
I also agree with Coghlan AJA.
COGHLAN AJA:
On 24 July 2009, the appellant was convicted in the County Court on the offences set out in the table below and on 21 August 2009 he was sentenced to the individual sentences as set out in the table. The total effective sentence was corrected on 25 August 2009.
Count on Presentment Offence Maximum Sentence Cumulation 4 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act (Vic)][1] 15 years [s 7(1) Prostitution Control Act1994 (Vic)] 3 years Base sentence 8 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act1994 (Vic)] 15 years [s 7(1) Prostitution Control Act1994 (Vic)] 3 years 3 months 13 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 4 years 12 months 14 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 2 years 4 months 15 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months [1] The title of this Act was changed to the Sex Work Act 1994 as at 1 November 2010.
16 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months 17 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months 18 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 2 years 4 months 19 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months 20 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act 1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months 21 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 4 years 12 months 22 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 months Concurrent 23 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act 1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months 24 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months 25 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 2 years 4 months 26 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months 27 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months 28 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months 29 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2) Crimes Act 1958 (Vic)] 2 years 4 months 31 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act 1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months Total effective sentence for State offences: 9 years and 4 months’ imprisonment with a non-parole period of 7 years. 36 Using a carriage service to groom persons under 16 years of age [s 474.27 Criminal Code Act 1995 (Cth)] 12 years [s 474.27 Criminal Code Act 1995 (Cth)] 9 months 9 months (to commence on the completion of the cumulative total of all sentences imposed on Count 4 to 31 inclusive) 37 Using a carriage service to procure persons under 16 years of age [s 474.26 Criminal Code Act 1995 (Cth)] 15 years [s 474.26 Criminal Code Act 1995 (Cth)] 12 months 12 months (to commence on the completion of the cumulative total of all sentences imposed on Count 4 to 36 inclusive) 38 Using a carriage service to transmit child pornography material [s 474.19 Criminal Code Act 1995 (Cth)] 15 years [s 474.19 Criminal Code Act 1995 (Cth)] 9 months 9 months (to commence on the completion of the cumulative total of all sentences imposed on Count 4 to 37 inclusive) Total effective sentence for Commonwealth offences: 2 years and 6 months’ imprisonment, with a minimum term of 1 year to be served before becoming eligible for a Recognisance Release Order. Total Effective Sentence: 11 years and 10 months Non-Parole Period: 8 years
On 2 November 2011, the appellant was granted leave to appeal against conviction and sentence.
Leave was granted on the appeal against conviction on the following grounds:
Ground 1. There was a miscarriage of justice by reason of the failure of the trial judge to order separate trials in respect of the State counts on one hand and the Commonwealth counts on the other.
Ground 3. The verdicts in relation to counts 14, 15, 22 and 28 are unsafe as no reasonable jury could have been satisfied that the acts alleged therein occurred.
Ground 4. There was a miscarriage of justice by reason of the failure of the trial judge in his charge to give the necessary negative directions in relation to propensity evidence
Ground 5. There was a miscarriage of justice by reason of the failure of the trial judge to properly direct the jury in relation to lies relied upon by the prosecution as evidencing a consciousness of guilt, namely, the appellant’s lies in his State record of interview that he never had a sexual relationship with the complainant.
The State counts (‘the SG counts’) relate to a series of meetings between the appellant and SG from a period beginning in late December 2006 until 4 May 2007. The appellant initially had responded to an online profile of SG on a gay website that had been posted by one of SG’s friends. Within the profile it stated that SG was 17 years’ old and that he was willing to provide sexual services for money. A series of meetings ensued in which there was either mutual masturbation, oral or anal intercourse or a combination of sexual acts performed between SG and the appellant in exchange for money or other various items.
The Commonwealth counts relate to the use of carriage services for improper sexual purposes concerning children. Between 1 April and 4 May 2007,
a series of sexually explicit emails were exchanged between username ‘[email protected]’ (nickname ‘Johnno’) and ‘[email protected]’. The latter claimed to be a 13 year old boy. In the course of these communications, Johnno forwarded a photo of a male (being a photo of SG) and spoke of his sexual relationships with this male. Further, between 28 April and 12 May 2007, a number of conversations took place between ‘Johnno’ and ‘tinyass15’ in an internet chat room called ‘gaydad4sons’. Tinyass15 identified himself as a 15 year old male living in New Zealand. During these conversations, Johnno agreed to fly to new Zealand to meet the boy for sexual activity. And on 3 May 2007 sexually explicit communications took place between ‘Johnno’ and ‘melbsouth’, who stated that he was aged 47. Johnno indicated he had just broken up with a boy from Frankston, that they had been having sex for about 4 months and that the boy was aged 15. Johnno described his sexual encounters with the boy, including detailed descriptions of the boy’s genitals.
Ground One and Ground Four
It is convenient to deal with these grounds together. At trial, the appellant was self-represented. No argument was put forward as to severance. On the first day of the trial, the appellant said to the trial judge:[2]
… the arguments I intended to make on issues such as severance and the exclusion of certain evidence, I cannot now make because I simply don’t have the time to make it.
[2]T20.
In the context of severance, it is important to note that the appellant’s defences to the two sets of counts were quite different. For the SG counts, his defence was that consensual sexual activity had taken place and that the appellant believed that SG was not under the age of 16 years. For the Commonwealth counts, his defence was that he was not the author of the relevant internet material. In his record of interview with the police in relation to the SG counts, the appellant denied any sexual contact with the complainant. In relation to the Commonwealth counts, he told the police that at least one reason he was not the author of the emails was that he had never had a sexual relationship with anyone under the age of 18.
The question of severance had been raised by the appellant when he sought to have the case adjourned. The question was not argued by the appellant before his Honour. The prosecution did raise the question of cross-admissibility. Although the argument put to his Honour was that the material was generally admissible, the prosecutor sought, in particular, to rely upon the material in the SG counts from which it could be concluded that in his dealings with SG, the appellant had used the name aussie-johnno in online correspondence. That evidence was important to the prosecution case on the Commonwealth counts because the issue on those counts was who was the author of the online correspondence, the appellant having told the police he was not the author.
The argument concluded with the following exchange between the trial judge and the prosecutor:[3]
HIS HONOUR: So what can be referred to as the Commonwealth evidence, is evidence that you also seek to rely on in relation to the state offences.
MR PERRY: More the other way, if I could put it that way, Your Honour, that the state material is more relevant to supporting the Commonwealth charges; that the internet address is used and that the statements as to age … because [the appellant] in his interviews makes it an issue, he says he never had a sexual relationship with anyone under 18. The Crown says those are lies which may indeed call for an Edwards and Zoneff direction at an appropriate stage. The pattern shown of the usage of the internet and how the conduct unfolds evidences, in the Crown’s submissions, an underlying unity either to prove a state of mind or the validity or otherwise of any belief as to age that is going on in this case. It is inextricably entwined, in the Crown’s submission. That is how the Crown puts it, Your Honour.
HIS HONOUR: Yes. Do you wish to say anything about that [the appellant]?
ACCUSED: No, Your Honour.
HIS HONOUR: There is in fact no application for severance before me and, in any event, for the reasons outlined by Mr Perry, I agree that severance should not be ordered.
[3]T30-31.
The argument as to cross-admissibility as set out by the prosecutor was, in reality, an argument against severance as between the two sets of counts.
At the time of the trial, the question of joinder was governed by s 372 Crimes Act1958 (Vic) which, so far as it is relevant, provides:
(3) Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.
(3AA) Despite sub-section (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.
(3AB) The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.
(3AC) In sub-section (3AA) ‘sexual offence’ means—
(a) an offence under Subdivision (8A), (8B), (8C), (8D), or (8E) of Division 1 of Part I or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence; or
(b) an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies.
Pursuant to sub-s (3AA), there was a presumption that the sexual offences be tried together and, pursuant to sub-s (3AB), that presumption was not rebutted merely because the evidence was not cross-admissible.
The two sets of offences in the presentment were sexual offences for the purposes of the section.[4]
[4]The Commonwealth offences are referred to in clause 1 of Schedule 1 of the Sentencing Act1991 so that by virtue of s 372(3AC) Crimes Act 1994 they were sexual offences for the purposes of s 372(3AA) of that Act.
The operation of s 372 was considered by the Court of Appeal in R v Papamitrou. Winneke P (with whom Ormiston and Buchanan JJA agreed) said:[5]
Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will – in most cases – be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.
[5]R v Papamitrou (2004) 7 VR 375, [27].
That was a case where all the counts on the presentment related to similar inappropriate sexual behaviour by the applicant towards a number of complainants. It was quite different from the situation in the present case.
In Papamitrou, the Court rejected the proposition that the fact that counts involving a number of complainants necessarily showed a propensity to act in a particular way was unfairly prejudiced to the applicant.
It has generally been accepted since Papamitrou that in cases to which s 372 applied, joinder would be appropriate where there was underlying unity in the circumstances and the conduct alleged, and that was the expression used by the prosecutor in his submission. It is easy enough to see how the evidence of SG about the use of the internet was admissible on the Commonwealth counts and, although the trial judge raised the question of admissibility of the material in the Commonwealth counts on the SG counts, the prosecutor said it was ‘more the other way’. It can be seen from what was said as set out at [7] that the prosecution was relying upon the material from the Commonwealth counts to show that the appellant had lied in the record of interview about having no interest in young boys.
I am not sure that the evidence from SG that the appellant had used the email ‘name’ aussie-johnno did give rise to a question of cross-admissibility. It was not a piece of evidence essential to the counts involving SG and was probably only relevant as part of the narrative.
On the other hand, if the jury were satisfied that the appellant was the person who sent the material referred to in the Commonwealth counts, then he was a person who importuned and groomed young boys for sexual purposes. That conduct, if accepted, undermined the defence in the SG counts that he believed that SG was at all times over the age of 16 years. That was a significant part of the argument advanced by the prosecution to support the SG counts.
As a matter of strict logic, there is no conflict between the two defences: defence one being a belief and defence two being complete denial. The matter was additionally complicated by virtue of the fact that, as already outlined, when the appellant had been interviewed about the first series of offences, he had denied any sexual contact with SG, but at trial he admitted sexual contact while continuing to rely upon his belief that SG was 16 or over.[6]
[6]See also ground 5.
In the trial, the only direction given about separate consideration was a brief direction in the usual form that each count was to be considered separately and that the convenience of a joint trial did not take away the importance of that requirement. There was no direction as to cross-admissibility and no propensity direction was given.
It is possible that if the matter had been more thoroughly argued, much of the material may have been seen to be cross-admissible, but that did not occur. The written argument put on behalf of the respondent demonstrates at least one way in which the argument might have been put.
When all these considerations were taken together, the appellant could not receive a fair trial if the two sets of counts were tried together in the way that they were. In the circumstances of this case, it is no answer to say that the point was not taken at the trial. His Honour did in fact rule on the issue which was seen by the prosecution as having been a live one. This was a case where a propensity direction needed to be given to ensure a fair trial. Its absence means that ground 4 should succeed.
Ground Five
In the way the case was conducted by the appellant, he admitted that he had told a lie about having engaged in sexual conduct with SG. It was possible for that lie to be used as an implied admission in relation to the counts involving underage sexual conduct with SG. It was not admissible in relation to the Commonwealth counts. It was complicated by virtue of the fact that the prosecution also relied on the facts underlying the Commonwealth counts as showing that the appellant did have a sexual interest in young boys. The prosecution also submitted to the jury that an answer in the interview with the Federal Police in which the appellant denied being aussie-johnno was a lie. The particular question from the interview, however, related to a graphic description of his like of boys between the ages of 13 and 16. When asked whether he had ever said something like that, he replied no. When dealing with the question of implied admission, that so-called ‘lie’ could not be used to support the counts relating to SG.
In the charge, his Honour said:[7]
Well, in relation to those allegations and those answers that [the appellant] has recorded as making, as to each of those answers the Crown says that the accused told lies to the police, and that his reason for lying was his knowledge, consciousness of guilt, and the crimes with which he is charged here. I give you the following directions about that argument by the Crown.
[7]T766.
In the passage of the charge which follows, the trial judge referred to the ‘lie’ as being what was said to the Victoria Police and which was eventually conceded to be a lie. No further mention was made of the ‘Federal Police lie’ and no distinction was made between the counts to which that lie related.
The respondent submitted that the distinction between the two sets of counts was not important because the jury must have understood that any implied admission related to the State counts.
The trial judge did refer to an alleged lie in the record of interview with the Federal Police. He then gave the general instruction referred to above.
At best, the instruction was very confusing and it was likely to have produced a miscarriage of justice. I would allow the appeal on this ground.
Ground Three
In written submissions, the respondent conceded that the convictions on counts 15, 22 and 28 are unsafe. Although counsel who appeared on the appeal would not have made that concession, he accepted that the respondent was bound by the written submissions. SG gave evidence to the effect that oral sex occurred on each occasion he visited the appellant. The appellant conceded in his opening reply that he had paid SG for sex.[8] I am satisfied that on the whole of the material and particularly having regard to the closing address of the appellant, there was sufficient evidence to support count 14.
[8][39].
Proposed additional ground
After the hearing of the appeal, it became apparent that s 398 of the Crimes Act 1958, as it was at the time of trial, had not been complied with. Section 398 reads as follows:
398 Caution to be given to person charged
Where a person charged with an offence is not defended by a legal practitioner, the following caution or words to the like effect shall, before he is called as a witness, be handed to him in writing under the direction of the court (that is to say):— ‘You now have the right to answer the charge against you and may take either of the following courses:
(a)You may enter the witness box, take the oath, and say what you want to say in answer to the charge. This is known as giving sworn evidence and when you have given your evidence you may be asked questions about it by the prosecution or the Court;
(b)You may say nothing in answer to the charge.
In either of these cases you may call any witness or witnesses to give sworn evidence for you. What do you desire to do?’
The parties were asked to respond in writing to questions raised by the Court about that section and associated matters. The appellant submitted that non-compliance with s 398 gave rise to a miscarriage and sought leave to add a ground (ground 6) citing such miscarriage.
It was common ground that the appellant was not given notice in writing as required by the section. It was also common ground that most of the information required to be contained in the written notice had been communicated to the appellant orally, although he had not been informed that he could be questioned by the Court.
As the matter stood at the end of the prosecution case, the evidence on which the appellant relied as to his belief in the age of SG was contained in the answers he had given in the record of interview. He sought to support that belief from matters which emerged in cross-examination and some other written material. He had, however, conceded that he had lied in the record of interview about having any sexual contact with SG while agreeing that he had paid him certain sums of money.
On the Commonwealth counts, his defence, as already mentioned, was that he was not the author of the offending material.
The position of the appellant was therefore a very difficult one. The question of whether or not he should give evidence was crucial. I am not satisfied, however, that the trial did miscarry as a result of the breach of s 398 alone and I would not grant leave to add ground 6. Since there is to be a retrial, the law applicable to that trial will be the Criminal Procedure Act 2009 which it is assumed will be complied with.
The appellant had been represented during the cross-examination of SG. It would have been prudent in the circumstances to ensure that the appellant had the advice of counsel as to the course open to him.
It would ordinarily follow that a retrial would be ordered in respect of all counts other than the counts for which an acquittal is ordered, but in this case the seven offences under the Prostitution Control Act 1994 need separate consideration.
Offences under the Prostitution Control Act 1994
The final matter for consideration relates to the Prostitution Control Act1994 (now the Sex Work Act1994) offence. They are contrary to s 7 of the Act:
s 7 Agreement for provision of sexual services by a child
(1) A person must not enter into or offer to enter into an agreement under which a child is to provide sexual services to or for that person or another person in return for payment or in exchange for drugs of dependence.
Penalty: Level 4 imprisonment (15 years maximum).
…
(3) In a proceeding for an offence against subsection (1)—
(a)it is not necessary for the prosecution to prove that the accused knew that the person who was to provide the sexual services was a child; but
(b)if the person concerned was aged 17 years or more at the time the offence is alleged to have been committed, it is a defence to the charge for the accused to prove that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed, that the person concerned was aged 18 years or more.
For the purposes of the Act, a child is defined as a person under the age of 18 years.[9] In this case, SG was at all relevant times under 16 years of age (DOB 5/5/1991). It followed that whatever belief the appellant had about SG’s age including the possible belief that SG was 17 due to that age being stated on SG’s online profile, it could not constitute a defence to those counts. In his reply to the prosecution opening at the trial, the appellant said:[10]
I admit that I paid the money that the complainant says I paid him for sex. I admit the relationship went on for several months. I do not dispute these facts. I do most certainly dispute, as I have stated earlier, that I ever knew the complainant was under-age during the course of this relationship. I also dispute that there was ever any anal sex whatsoever.
[9]See s 3 Prostitution Control Act1994.
[10]T155.
It follows, as was conceded by counsel for the appellant in reply to a question asked by the Court, that no ‘positive’ defence had been raised in relation to those counts.
I am satisfied that, because of the conclusion made above and because the offence concerns itself with ‘offering to enter into an agreement under which a child is to provide sexual services’, the nature of actual service provided is not relevant to the question of whether or not the offence had been committed and the appellant had no defence to these counts.
Conclusion
It follows that I would allow the appeal in part.
(i) The convictions on counts 15, 22 and 28 should be set aside and verdicts of acquittal be entered.
(ii) The convictions on counts 13, 14, 17, 18, 19, 21, 24, 25, 26, 29, 36, 37 and 38, should be set aside and a new trial be held.
(iii) In relation to counts 4, 8, 16, 20, 23, 27 and 31, the appeal is dismissed and the appellant falls to be resentenced. The appellant is now aged 56 and was 51 at the time of the offending. He has no prior convictions, is very well educated and has held a senior public service position. The offending of the appellant was predatory and he has showed neither empathy or remorse.
(iv) The maximum term of imprisonment for each of those counts is 15 years. The conduct represents reasonably serious examples of offending of the kind. I would sentence the appellant to imprisonment for three years on each count. Count 4 will be the base count. I would order that four months of the sentences on counts 8, 16, 20, 23, 27 and 31 be served cumulatively upon that count and with each other; that is a total effective sentence of five years, and I would fix a period of 3½ years before the appellant is to be eligible for parole.
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