Frank (a pseudonym) v The King
[2024] VSCA 37
•18 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0158 |
| MICHAEL FRANK (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.
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| JUDGES: | BOYCE, WHELAN and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 February 2024 |
| DATE OF JUDGMENT: | 18 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 37 |
| JUDGMENT APPEALED FROM: | DPP v Michael Frank (a pseudonym) (County Court of Victoria, Judge Wraight, 28 September 2022) |
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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Rape – Common law rape – Applicant found guilty of four charges of indecent assault, three charges of rape and one charge of common law rape – Sentenced to 9 years’ imprisonment with a non-parole period of 5 years – Whether a verdict of the jury was unreasonable or could not have been supported by the evidence because of a factual inconsistency – Whether a substantial miscarriage of justice resulted from the jury not having been directed to return not guilty verdicts on charges of indecent assault where age of complainant in question – Jury verdict was reasonable, could be supported by evidence and not factually inconsistent – No substantial miscarriage of justice – Leave to appeal refused.
Crimes Act 1958, ss 44, 45; Criminal Procedure Act 2009, s 276(1).
McKenzie v The Queen (1996) 366 CLR 348, applied; Goldsmith v The Queen [2010] VSCA 99; MFA v The Queen (2002) 213 CLR 606, discussed.
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| Counsel | |||
| Applicant: | Mr PJ Matthews | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Paul Vale Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BOYCE JA
WHELAN JA
T FORREST JA:
On 28 June 2022, the applicant was convicted by a jury in the County Court of four charges of indecent assault, three charges of statutory rape and one charge of common law rape in respect of offending which occurred in 1986.
The applicant was sentenced on 28 September 2022. The details of his convictions and sentence are set out below.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Indecent assault[2] | 5 years’ imprisonment | 2 years and 6 months’ imprisonment | 6 months |
| 2 | Indecent assault | 5 years’ imprisonment | 2 years and 6 months’ imprisonment | 6 months |
| 4 | Rape[3] | 10 years’ imprisonment | 3 years’ imprisonment | 6 months |
| 5 | Rape | 10 years’ imprisonment | 4 years’ imprisonment | 1 year |
| 6 | Rape | 10 years’ imprisonment | 4 years’ imprisonment | 1 year |
| 7 | Indecent assault | 5 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 8 | Indecent assault | 5 years’ imprisonment | 2 years and 6 months’ imprisonment | 3 months |
| 9 | Common law rape | 10 years’ imprisonment | 5 years’ imprisonment | Base |
| Total Effective Sentence: | 9 years’ imprisonment | |||
| Non-Parole Period: | 5 years | |||
| Pre-sentence Detention Declared: | 92 days | |||
| Other Orders: Pursuant to s 6F Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of Charges 4, 5, 6, 7, 8 and 9. Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life. | ||||
[2]Contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[3]Contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
PROPOSED GROUNDS OF APPEAL
The applicant seeks leave to appeal against conviction on the following grounds:
Ground 1:The verdict of the jury on charge 2 was unreasonable or cannot be supported having regard to the evidence.
Ground 2:A substantial miscarriage of justice resulted from the jury having not been directed to return not guilty verdicts on charges 1 and 2.
OVERVIEW
Given the narrow focus of this application, it is necessary to set out the factual allegations only briefly.
The complainant was born on 30 January 1970. The complainant moved in with her maternal aunt and her husband, the applicant, after New Year’s Day in 1986. The complainant normally slept in a fold-out bed in a room she shared with two of the applicant and her aunt’s four sons.
Charge 1
In either January or February 1986, the complainant alleges that she was lying under the covers in bed with her aunt. This was a common occurrence, as the two would often watch movies together laying in bed in the master bedroom.
The applicant walked into the room wearing his underwear, having just had a shower. He got into the bed next to the complainant and, at some stage, hooked his leg around the inside of the complainant’s leg thus forcing her legs open. The complainant stated she attempted to resist this. Scared, in a state of shock and laying still, she felt the applicant’s hand push inside the front of her pyjama pants, move down to her genital area and the applicant then forcibly pushed two or three of his fingers into her vagina, hurting her. She did not make a sound. She did not agree with him putting his fingers in her vagina and ultimately left the bed. She told no-one because she was afraid of hurting her aunt and was scared.
Charges 2 and 3
On another occasion in either January or February 1968, the complainant was again in bed with her aunt watching a movie when the applicant joined them. He placed himself in between the complainant’s aunt and the complainant, hooked his leg around one of the complainant’s, thereby forcing her legs apart and toward him, and moved his hand down the front of her pyjama pants. He put two or three fingers into her vagina and pushed them in and out for ‘maybe five minutes’ (Charge 2). The complainant felt pain in her vagina and was ‘petrified’. The applicant then took his fingers out of the complainant’s vagina and placed her hand on his penis and then moved her hand up and down (Charge 3). He was not wearing underwear. Her aunt continued watching the movie. The incident went on for about 10 minutes. The complainant made an excuse and got out of the bed. She did not agree with the applicant putting his fingers into her vagina or to touching the applicant’s penis. She did not tell anyone.
The applicant was acquitted of Charge 3, but convicted of Charge 2. An asserted inconsistency between these two outcomes underpins proposed ground 1.
Charges 4 and 5
Late at night in February 1986, the complainant was in her bed, under the covers facing the wall, when the applicant entered her bedroom. The applicant pushed and pulled on her shoulder and rolled the complainant over so that she was now on the edge of the bed facing him. She saw his erect penis in front of her face. The applicant poked and pushed his penis in the complainant’s face and attempted to put his penis in her mouth by pushing his penis between her lips. She resisted but the applicant’s penis entered her mouth slightly (Charge 4). The complainant was terrified and concerned that the applicant’s sons would wake up and see what their dad was doing. After a minute, she said to the applicant ‘let’s go to the lounge’. The applicant followed the complainant into the lounge room. The complainant said to the applicant, ‘please don’t do it’. The applicant forced her onto a two-seater couch and, facing the complainant’s face, leant on top of her. He moved his penis towards her face. The complainant said ‘no’, however, he forced his penis into her mouth and thrust it in and out for approximately 15 minutes while the complainant gagged and choked. He ejaculated in her mouth, wiped his penis and walked away (Charge 5). Her aunt was at work during this time.
Charges 6 and 7
Also in February 1986, the complainant was lying in her bed when the applicant entered her bedroom, grabbed her shoulder, rolled her over and said, ‘lounge room’. He told her not to say anything to his wife and that it would ‘break [his] family and [his] sons would “end up like [her]”’. He then pushed her in the back until she was in the lounge room and on her back on the couch. He then climbed on top of her with his penis facing her and his head facing towards her vagina. He forced his penis into the complainant’s mouth and told her ‘to suck it as hard as [she] could’ (Charge 6). He also inserted multiple fingers into the complainant’s vagina (Charge 7). He thrust his penis in and out of the complainant’s mouth. She struggled and tried to move her head. The applicant ejaculated into the complainant’s mouth. Her aunt was again at work.
Charges 8 and 9
In February or March 1986, the applicant entered the complainant’s bedroom, forcibly got her up from her bed and guided her to the two-seater couch in the lounge room. He pushed her onto the couch, pulled her pyjama pants down and said to her she had an ‘option’ to ‘either suck [his] dick or [he would] fuck [her]’. The complainant said that she ‘didn’t want to do any of it’ and to ‘let her go’ but the applicant knelt down in front of her and forced her legs apart, positioning his body between them. She was shaking and asking him to stop. He pulled the complainant’s buttocks to the edge of the couch and put his fingers into her vagina, and pushed them in and out (Charge 8), then removed them and inserted his penis into her vagina and kept pushing it in and out, ignoring her when she said it was hurting and to stop (Charge 9). After he pulled out, the complainant could feel that he had ejaculated and felt it all over her vagina and between her legs. Her aunt was again away from home working at the time.
Tendency notices were served and the prosecution relied upon tendency reasoning based upon cross-admissibility of the complainant’s evidence to all charges on the indictment.
Other evidence
The complainant’s aunt did not give viva voce evidence at trial however two statements of her aunt and her relevant committal evidence were read into evidence at trial. Amongst other things, she stated:
•There were occasions when the applicant would get into bed with her and the complainant.
•She had a memory of when the complainant started to make excuses or would go to bed early so as to not get into bed with her.
•She thought she would have noticed if the applicant had wrapped his leg around the complainant’s leg when the complainant was laying in the middle between them in the bed. She did not recall seeing that.
•She thought she would have remembered if the applicant had got into bed naked when the complainant was in it. She did not recall that he ever did.
•She was not sure if she would have noticed if the applicant was in bed naked but said she would have noticed if he was naked with an erection. She did not think he had ever been in the bed naked with an erection when the complainant was there.
•She thought she would have noticed if the applicant had penetrated the complainant’s vagina with his fingers whilst she was lying in the double bed with the three of them quite close together.
•She thought she would have noticed if the complainant masturbated the applicant while he was lying in bed next to her. It did not ever happen to her knowledge.
•She would not have allowed the applicant to touch her sexually if the complainant was in the bed with them.
•If anything inappropriate was occurring, she did not notice it.
It was argued by the defence that, if the charged events had occurred, her aunt would surely recall them.
The applicant was interviewed by police on 17 April 2019. A recording of his record of interview was played to the jury. He denied offending in any way. He did not give evidence at trial. He had no prior convictions and good character was relied on at trial.
PROPOSED CONVICTION APPEAL: GROUND 1
Proposed ground 1 asserts that the verdict of the jury on Charge 2 was unreasonable or cannot be supported having regard to the evidence.
This proposed ground is couched in the language of s 276(1)(a) of the Criminal Procedure Act 2009. Whilst this provision casts a broad reach, the ground was argued narrowly: the verdict of the jury is unreasonable on Charge 2 because it is factually inconsistent with the verdict on Charge 3.[4]
[4]It is unnecessary to determine whether an ‘inconsistent verdict’ ground is appropriately brought under s 276(1)(a) or as a separate ground.
Legal principles
The test for factual inconsistency ‘is one of logic and reasonableness’.[5] A verdict is inconsistent with another if ‘the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’.[6]
[5]McKenzie v The Queen (1996) 366 CLR 348, 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
[6]Ibid citing R v Stone (Unreported, 13 December 1954, Devlin J). See also Tyrell v The Queen [2019] VSCA 52 (Kaye, Niall and Weinberg JJA).
Appellate courts are reluctant to find that jurors neglected their duties and returned a verdict on the basis of compromise.[7] Jurors generally are presumed to produce logical and satisfactory verdicts.
[7]See Goldsmith v The Queen [2010] VSCA 99, [51] (Weinberg, Mandie and Bongiorno JJA); Amato v The Queen [2013] VSCA 346, [5] (Maxwell P, Priest JA and Lasry AJA); R v JA [2008] VSCA 169, [48](Vincent, Dodds-Streeton and Weinberg JJA); Director of Public Prosecutions v Fattal [2013] VSCA 276, [36] (Buchanan AP, Nettle and Tate JJA); R v Motlop [2013] QCA 301, [47] (Boddice J); Andrew v The Queen [2013] VSCA 333, [40] (Weinberg JA).
An appellate court ought exercise care when evaluating a complaint of inconsistent verdicts due to conviction of only some charges concerning a single complainant. Some parts of the complainant’s evidence may have been accepted, other parts not. This may occur rationally where there is supporting evidence for some parts of a complainant’s evidence and not other parts; it may occur if the complainant is more specific as to some charges than others, or if there are discrete episodes of offending and the quality of evidence varies between episodes.[8]
[8]MFA v The Queen (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ); [2002] HCA 53; Tyrell v The Queen [2019] VSCA 52, [76]–[79] (Kaye, Niall and Weinberg JJA).
Verdicts of acquittal do not necessarily show that a complainant’s evidence has been disbelieved — the jury may merely have taken a cautious approach to its responsibilities given the heavy onus that rests with the prosecution in a criminal trial.[9]
[9]MFA v The Queen (2002) 213 CLR 606, 617–18 [34]–[35] (Gleeson CJ, Hayne and Callinan JJ); [2002] HCA 53; Tyrell v The Queen [2019] VSCA 52, [76]–[79] (Kaye, Niall and Weinberg JJA).
It follows that real care must be taken when a complaint of inconsistent verdicts is made. However, notwithstanding this, if two verdicts cannot be logically connected, so that it can fairly be said that the verdicts cannot both stand together, then factual inconsistency will be demonstrated.
The applicant’s contentions
In oral submissions, the applicant accepted that this ground was effectively an inconsistent verdicts ground and that the applicant would not be arguing a broader ‘unsafe’ ground. The nub of the applicant’s submissions was that the verdict of not guilty on Charge 3 (indecent assault — the masturbation charge), factually could not be reconciled with the verdict of guilty on Charge 2 (indecent assault — the digital penetration charge).
Counsel for the applicant accepted that the burden of demonstrating inconsistency was a heavy one, however contended that the verdicts on Charges 2 and 3 were logically factually inconsistent. The conduct alleged in the two charges, if not occurring simultaneously, occurred as part of the one continuing episode, was discreet in both instances, and there was no other circumstance that could explain the different outcome. The applicant further contended that matters of credit were indistinguishable as between the charges and the complainant’s evidence was equally specific as to the charges.
The respondent’s contentions
Senior Counsel for the respondent submitted there were several distinctions that could be drawn between Charge 2 and Charge 3 that were capable of providing a logical resolution of the two verdicts.
•During the time of the conduct the subject of Charges 2 and 3, the applicant’s position in the bed was between his wife and the complainant. The act of masturbation by the complainant of the applicant, if it occurred, occurred at a location significantly closer to her aunt than the preceding act of digital penetration of the complainant. This act was upon an external body part and, if it had occurred, would likely have been noticed by her aunt who, on the complainant’s account, was awake and watching television throughout the entire events of both charges.
•The action of the digital penetration constituting Charge 2 could have involved ‘far more subtle movement by the applicant’ and ‘one more readily unnoticed by [her aunt]’ than that constituting Charge 3.
•The complainant, who originally said that the applicant touched his wife’s vagina while she (the complainant) masturbated him, changed her evidence from committal to trial to withdraw the allegation that the applicant touched his wife’s vagina while he was being masturbated. This may have impacted the complainant’s credit insofar as Charge 3 was concerned, but not Charge 2.
Consideration
We are of the view that the applicant has not demonstrated that the verdicts on Charges 2 and 3 are factually inconsistent. The conduct that was alleged to constitute the charges involved distinctly different activities and was performed in distinctly different locations in the bed. A jury may well have accepted the complainant’s evidence about digital vaginal penetration occurring while she lay ‘shocked’ and ‘scared’ beside the applicant with an oblivious aunt laying on the other side of the applicant. They were also entitled to entertain a reasonable doubt about whether the external (albeit not aggressive ‘softer’)[10] act of penile masturbation occurred given that it was said to have occurred immediately next to the awake aunt.
[10]In cross-examination, the complainant said the applicant made her masturbate him ‘in a softer way … he had my hand wrenched very hard around his penis’. When asked whether she agreed that the way the applicant held her hand on his penis and moved her hand up and down would have resulted in the doona or covers moving, the complainant said ‘no, not necessarily because you can do that in different ways it doesn’t have to be an aggressive way’.
We are fortified in this conclusion by what may well have been a successful attack on the complainant’s credit about what was actually occurring at the time that she was masturbating the applicant. At the committal, the complainant said that the applicant was touching her aunt’s vagina while she (the complainant) masturbated the applicant. At trial, she resiled from this evidence. This may have caused the jury to doubt the masturbation charge (Charge 3). The verdicts on Charges 2 and 3 are not logically factually inconsistent. They can stand together.
Proposed ground 1 must be rejected and leave to appeal is refused in respect of it.
CONVICTION APPEAL: PROPOSED GROUND 2
It will be recalled that the complainant was born on 30 January 1970. Charges 1 and 2 were alleged by the prosecution to have occurred between 1 January 1986 and 28 February 1986. Thus, the complainant turned 16 roughly in the middle of this two month period. At trial and on this application the prosecution accepted that, on the evidence available to it, it could not establish whether the offending said to be the subject of Charges 1 and 2 occurred when the complainant was 15 or 16 years of age. On her evidence, she was either 15 or 16 but she couldn’t say which.
At the relevant time, s 44 of the Crimes Act 1958 read as follows:[11]
(1)A person who indecently assaults another person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
(2)A person who indecently assaults another person is, if there are aggravating circumstances, guilty of the indictable offence of indecent assault with aggravating circumstances and liable to imprisonment for a term of not more than ten years.
(3)Where a person is charged with an indecent assault, whether with or without aggravating circumstances, committed upon a person under the age of sixteen years, the consent of the person under sixteen is no defence to the charge unless, at the time the offence is alleged to have been committed –
(a)the accused was, or believed on reasonable grounds that he was, married to the person;
(b)the accused believed on reasonable grounds that the person was of or above the age of sixteen years; or
(c)the accused was not more than two years older than the person.
[11]We note that s 44 of the Crimes Act 1958 was amended by the Crimes (Sexual Offences) Act 1980 although that was not mentioned on the indictment.
It is plain that s 44(1) of the Act creates the offence of indecent assault. Section 44(2) is irrelevant for present purposes. Section 44(3) is directed to a circumstance ‘[w]here a person is charged with an indecent assault … committed upon a person under the age of sixteen years …’.
As we have said, in this case the prosecution could not prove the complainant was under 16 at the time of the occurrence of Charges 1 and 2. Thus the prosecution elected to proceed with the straight indecent assault charge under s 44(1) (without availing itself of s 44(3)). There is no error in this approach, nor is there any unfairness to the applicant. The prosecution, by proceeding under s 44(1), assumed the extra burden of proving two additional elements: namely, that the complainant did not consent to touching in the circumstances of indecency, and that the applicant was aware that the complainant was not consenting or might not be so.[12]
[12]Despite the language of s 44(3) ‘the consent of the person under sixteen’ has never been a defence to a charge of indecent assault. Lack of consent is a matter to be proved by the prosecution where it cannot be proved the complainant is under the age of 16.
It is clear from the language of s 44 that age is not an element of the offence created by s 44(1). Section 44(3) was directed to circumstances where the complainant could be demonstrated to be under the age of 16 at the time of the alleged offending. In that circumstance, the prosecution is relieved of the burden of proving those additional elements stated in the paragraph directly above: lack of consent and a belief about lack of consent.
In this application, the applicant contended that s 44 considered globally created an offence where the prosecution could prove a complainant to be under 16 at the date of the offending and another offence where the prosecution could prove a complainant to be over 16. This submission is misconceived: first because age is not an element of the offence created by s 44(1); second because if the submission is correct, in every case where the prosecution could not prove the complainant’s age at the time of the offending (a not uncommon occurrence) then the prosecution must fail regardless of the other merits of its case. When pressed, counsel for the applicant accepted that this was a necessary consequence of the interpretation for which he contended. Parliament cannot have intended this.
For these reasons, we reject the applicant’s contention that the verdicts on Charges 1 and 2 were the product of a substantial miscarriage of justice and we reject the further contention that the prosecution of those charges ought to have been permanently stayed as an abuse of process.
Proposed ground 2 must be rejected and leave to appeal is refused in respect of it.
CONCLUSION
Leave to appeal against conviction is refused.
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