Griffin v The Queen
[2011] VSCA 304
•14 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0041 | |
| JASON GRIFFIN | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, MANDIE JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 September 2011 | |
DATE OF JUDGMENT: | 14 October 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 304 | |
JUDGMENT APPEALED FROM: | R v Griffin (Unreported, County Court of Victoria, Judge Rizkalla, 16 February 2010) | |
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CRIMINAL LAW – Application for leave to appeal conviction – Charges of sexual penetration of child under 16 – Directions as to recent complaint – Failure to give separate summary of evidence – Application dismissed.
Application for leave to appeal sentence – Two counts – Victim 14, offender 34 – Sentenced to total effective sentence of 5 years 6 months with non-parole period of 3 years 6 months – Not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree with Whelan AJA.
MANDIE AJA:
I also agree with Whelan AJA.
WHELAN AJA:
On 28 October 2009 Jason Griffin was convicted after a trial in the County Court of two counts of taking part in an act of sexual penetration with a child under 16. Each offence was alleged to have been committed on 10 December 2007. He had pleaded guilty to offences of burglary and theft committed on 4 December 2007.
A plea hearing was held on 14 December 2009. Mr Griffin was sentenced on 16 February 2010. He was sentenced to 4 years’ imprisonment on each of the counts of sexual penetration, and six month’s imprisonment on each of the burglary and theft counts. The only order for cumulation was an order that 18 months of the sentence on the second count of sexual penetration be cumulated on the sentence imposed on the first. Accordingly, the total effective sentence in relation to all four offences was 5 years 6 months’ imprisonment. Her Honour fixed a non-parole period of 3 years 6 months.
Mr Griffin now applies for leave to appeal his conviction and sentence. His grounds all relate to the sexual penetration offences.
In relation to the sexual penetration offences, the prosecution case was that the female complainant and a male school friend left their nearby school and visited the house of the applicant on 10 December 2007. They were in school uniform. The complainant was aged 14 years. The applicant was aged 34 years.
The prosecution case was that whilst at the applicant’s house the complainant consumed alcohol and a white tablet. After the complainant’s male school friend
had left, the prosecution case was that the complainant performed oral sex on the applicant in the kitchen and that the applicant penetrated the complainant’s vagina with his penis in the lounge room shortly afterwards.
The applicant did not give evidence. In his record of interview he denied that any sexual activity had occurred.
In relation to the application for leave to appeal the convictions two grounds are relied upon. The first is that the learned trial judge erred in her directions concerning evidence of recent complaint. The second is that the learned trial judge erred by failing to summarise the evidence.
In the complainant’s cross-examination certain things which it was suggested she had told a bus driver on the morning after the alleged incident at the applicant’s house were put to her.[1] What was put to her was that things she had told the bus driver, including about whether she had ever met or dealt with the applicant before the day of the alleged offences and about whether the applicant had worn a condom when intercourse occurred in the lounge room, were inconsistent with her evidence in chief. In substance, the complainant said that she did not remember telling the bus driver the particular things put to her.
[1]Transcript 27-28 and 44-45.
The prosecution called the bus driver as part of the prosecution case.[2] His evidence was that he had picked up the complainant at about 7.45 am on the day after the alleged offences and that she had seemed quite down in the dumps and a little bit upset. He said that she had told him that she had wagged school and met up with a fellow and that she was given a pill of some sort. He said that she went into detail saying that the fellow concerned had undone his pants and that there was ‘sexual involvement’. The bus driver said she told him that she was penetrated. He said that she was very teary. At one point he was asked what kind of sexual involvement she had told him about and he responded:
Well, she was penetrated. I asked her that only because I’d started putting two and two together … .
He also said that he had asked whether the applicant had used any protection and that the complainant had got quite upset at that. In cross-examination he was asked about the matters which had been put to the complainant in her cross-examination. He confirmed that she had told him what had been put to her.
[2]Transcript 166-170.
No objection was taken to the admissibility of the evidence of the conversation between the complainant and the bus driver.
The trial judge gave the jury what were then the standard directions in relation to recent complaint in sexual offence cases.[3] In summary, the trial judge told the jury that the prosecution relied upon what was said to the bus driver as being consistent with her evidence on oath. She directed the jury that they could use the evidence of what was said to the bus driver when assessing the credibility of the complainant if they were satisfied of what it was that had been said, that it had constituted a complaint, and that the complaint had been made at the first reasonable opportunity. The judge emphasised that the evidence could only be used on the question of credibility of the complainant. She also emphasised that it should not be seen as evidence independent of the complainant, and that it was not additional evidence of what had happened.[4] The next topic she dealt with (after an adjournment overnight) was prior inconsistent statements. In that context, she addressed the defence position on the bus driver conversation in detail.[5]
[3]This trial was conducted prior to the commencement of the Evidence Act 2008 and the Criminal Procedure Act 2009.
[4]Transcript 210–213. The directions given closely followed the relevant suggested charge in the charge book as it then was, save in relation to one matter, or ‘quibble’ as it was described by the applicant’s counsel on the hearing, as to which no complaint was made on the application for leave to appeal.
[5]Transcript 217–220.
No exception was taken at the trial to the directions given on the issues concerning the bus driver conversation.
In the applicant’s outline of argument in relation to this ground it was submitted that the evidence did not amount to evidence of a ‘complaint’, and that the statement had not been made at the first reasonable opportunity. It was submitted the trial judge should not have directed the jury that the bus driver conversation had the capacity to ‘accredit the complainant’.
In oral submissions two matters were put in support of this ground. The first was that the evidence was incapable of being used to bolster the complainant’s credit because she herself had not given evidence of what she had told the bus driver. The second matter was that the judge should not have directed the jury that the evidence had the capacity to support the credit of the complainant because she had given no account herself, because the bus driver’s account was itself inadequate, because the bus driver had ‘prompted’ what was said, and because what had been said, if it was a complaint, was not a complaint at the first reasonable opportunity. The submission was that the trial judge should have addressed the issue of what was said to the bus driver solely and exclusively in the context of prior inconsistent statements.
The first matter raised on the hearing can be dealt with briefly. The High Court has determined the point. In Breen v The Queen[6] the High Court made it clear that evidence of complaint could satisfy the requirements of the law with respect to the admissibility of complaints in cases of sexual offences even where the complainant gave no evidence of making the particular complaints.[7]
[6](1976) 180 CLR 233.
[7](1976) 180 CLR 233, 234 (Barwick CJ, Stephen and Mason JJ).
I do not accept the other submissions made in support of this ground.
No objection was taken to the evidence when it was led by the prosecution from the bus driver. On one view, the issue of whether the complaint had been made at the first reasonable opportunity could only have been raised then.[8] In any event, in my view it was open on the evidence to conclude that the complaint had been made at the first reasonable opportunity. There was evidence that when the complainant returned to the school she was significantly affected by drugs or alcohol or both. Her mother was called and she was taken to hospital. The complaint was made to the bus driver early the next morning. In this context reasonableness is to be assessed taking into account the subjective situation in which the complainant was placed.[9]
[8]In R v GG (2004) 251 A Crim R 92 Eames JA expressed the tentative conclusion that once the evidence had been admitted the jury did not need to determine whether the complaint had been made at the first reasonable opportunity as that was an admissibility question only.
[9]R v Freeman [1980] VR 1, 8 (‘Freeman’). See also R v EF [2008] VSCA 213 (‘EF’) and R v OPM [2009] VSCA 165 (‘OPM’).
As to the submission that what was said was not a ‘complaint’ because the activity had been consensual, the fact that the activity may have been consensual did not deprive what she had said of the character of a complaint in the context of the offence charged. In any event, the evidence was that she was upset and teary.
As to the submission the bus driver had ‘prompted’ what was said, there was nothing in the evidence to warrant a conclusion that what she did say had been led or suggested to her by the bus driver.[10]
[10]See EF at [47]–[50]; and OPM at [49]–[51]. This submission was not repeated orally.
The evidence having been admitted, the trial judge gave the jury adequate and appropriate directions in relation to the use which could properly be made of it.[11]
[11]The directions given as to recent complaint were in accordance with Kilby v The Queen (1973) 129 CLR 460, 466; Freeman at 6; R v Roach [1988] VR 665, 668; and R v Stoupas [1998] 3 VR 645.
The second ground in relation to the application for leave to appeal the convictions concerned the trial judge’s failure to give a discrete and separate summary of the evidence in the course of her charge to the jury.
In the written outline of argument it was submitted that there was no sufficient summary of the evidence and that that constituted a fundamental deficiency in the charge. In oral submissions it was accepted that throughout the course of the charge references had been made to the evidence, but it was submitted that the charge was deficient because certain important issues were not addressed and because in the circumstances of this case it was necessary for the judge to preface her treatment of the relevant issues and of the submissions of counsel with a neutral summary of all of the evidence. The instance of an important issue not addressed which was suggested in argument was the evidence about how the complainant came to be intoxicated.
It is not essential in every case that a trial judge give a discrete and separate summary of the evidence. In my view, it would usually be wise to do so, and I think it may have been desirable to have done so in this case. What is required in every case is that the factual issues be identified and that the jury’s attention be drawn to the relevant evidence which bears upon those issues.
This Court addressed what is required in some detail in Thompson v The Queen.[12] As that decision reveals, in some circumstances a judge’s identification of the relevant issues and of the evidence whilst summarising of the respective parties’ cases might satisfy the obligation.
[12][2008] VSCA 144.
Here, whilst I consider that a discrete neutral summary may have been of assistance to the jury, in my view the judge did sufficiently remind the jury of the relevant evidence in her charge in the context of directing them as to the elements of the offence and in summarising for them the respective cases which had been put.
In the course of her charge the judge referred to the evidence of all except three of the nine witnesses, and she referred to the two exhibits (the mobile phone photos which were exhibit A, and the record of interview which was exhibit B).
The three witnesses to whom she did not refer were the informant and the school principal, who gave evidence before the jury on the day the charge commenced, and the complainant’s mother. The evidence of the complainant’s mother and the school principal substantially concerned a matter which was not controversial, namely the complainant’s condition when she returned to school, and neither of them was subjected to any significant cross-examination.
The trial was a short one and the relevant issue in contention was very simple. Did one or other or both of the acts of sexual penetration occur? There were, of course, subsidiary issues, including the issue of how the complainant came to be intoxicated. The trial judge did specifically refer to the evidence on that issue in her charge.[13] A separate summary may have been better but what was done was adequate.
[13]Transcript 207–8.
Accordingly, I reject the two grounds relied upon in relation to the application for leave to appeal the convictions on the counts of sexual penetration. That application should be dismissed.
In relation to the application for leave to appeal sentence two grounds are relied upon. The first ground is that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. The second ground is that the two sexual penetration offences occurred in quick succession, that the extent of cumulation is excessive, and that that level of cumulation produces a total effective sentence that breaches the principle of totality.
In oral submissions the two grounds were addressed together. Counsel for the applicant submitted that the four year sentence on each offence was high but not outside the range given that the convictions were after a trial. The burden of the submission made on behalf of the applicant orally was that the cumulation of 18 months was too much and produced a total effective sentence which was manifestly excessive.
The sentencing judge sentenced on the basis that the complainant’s evidence as to the circumstances in which the offences had occurred had been accepted by the jury. The complainant, a 14 year old in school uniform, consumed both alcohol and took a pill and then agreed to have oral sex in exchange for cannabis. After that incident, which took place in the kitchen, she left the kitchen and began playing with a gaming device in the lounge room. Her evidence (which the judge accepted) was that at that stage her intoxication was such that she could not even stand up. In those circumstances the applicant, 34 years of age, proceeded to have sexual intercourse with her.
I am conscious of the fact that there were a number of mitigating factors present in the case. The applicant has prior convictions, but not for sexual offences. He had a chaotic childhood. As a result of these offences he separated from his then partner, and he has been deprived of contact with his two children. It is likely that he will serve his imprisonment in protection, which will be more burdensome than would otherwise be the case. These and other mitigating factors were referred to by the sentencing judge. There was, of course, no discount for a guilty plea, and no remorse.
My conclusion is that the 18 months cumulation cannot be said to be excessive in the circumstances. There was a second separate incident, in a separate part of the house, involving different sexual activity.
I do not consider that the individual sentences, the total effective sentence, or the non-parole period are outside the range of sentences reasonably open to the sentencing judge in the circumstances here.
The application for leave to appeal the sentence should also be dismissed.
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