H D C v The Queen
[2012] VSCA 136
•6 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0115
| H D C | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MANDIE and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 June 2012 |
| DATE OF JUDGMENT | 6 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 136 |
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CRIMINAL LAW – Interlocutory appeal – Severance – Applicant indicted on 11 charges of sexual penetration of child under 16, seven charges of rape and two charges of attempted rape – Applicant sought severance of indictment such that sexual penetration charges tried separately to rape and attempted rape charges – Trial judge refused application for severance – Whether discretion exercised by trial judge miscarried – Whether conduct alleged in rape and attempted rape charges so repulsive that no direction from trial judge could obviate risk that jury would approach their task other than objectively or would engage in impermissible propensity reasoning with respect to sexual penetration charges – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A S Dickenson | Doogue & O’Brien |
| For the Crown | Mr P Kidd SC with Ms C Burnside | Mr C Hyland, Solicitor for Public Prosecutions |
MANDIE JA:
I will ask Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
The applicant has been indicted on 20 charges of sexual offences committed against a young female complainant. He has pleaded not guilty to all those charges.
The events giving rise to them are alleged to have occurred between December 2004 and December 2006 when the complainant was aged between 15 and 17. The first 11 charges are charges of sexual penetration of a child under the age of 16. The remainder are all charges of rape except for charges 15 and 18 which are charges of attempted rape. The applicant was aged between 19 and 21 at the time of his alleged offending.
The Crown has provided the applicant with an extensive outline of its case to which he has made a written response in accordance with the applicable provisions of the Criminal Procedure Act 2009.
The Crown case is that the first 11 charges of sexual penetration occurred in the context of a relationship between the complainant and the applicant such that the acts of penetration were consensual.
The applicant’s response to these charges is that he believed at all relevant times, on reasonable grounds, that the complainant was over the age of 16 so that he is entitled to rely upon the defence provided in s 45(4) of the Crimes Act1958. He concedes penetration with respect to charges 1 to 9 but denies it with respect to charges 10 and 11.
The Crown case as to the other charges is that on each of the occasions charged, except for those relevant to charges 15 and 18, the applicant sexually penetrated the complainant per vaginam or per anum without her consent. This conduct on the applicant’s part is alleged to have commenced on 31 August 2005
when he forcibly penetrated the complainant both vaginally and anally after he tied her to a bed with her school tie. These events caused the complainant severe pain and distress. Subsequent charges relate to similar conduct over succeeding months in different circumstances involving both anal and vaginal penetration, all of which was allegedly non-consensual. However, it also appears to be common ground that there were episodes of consensual penetration, at least per vaginam, during the relevant period. The applicant’s response to charges 12 to 20 is either that the sexual penetration or attempted sexual penetration alleged never occurred at all (charges 12 to 18 and 20) or, in the case of charge 19, that the sexual activity was consensual.
At the commencement of the applicant’s trial before Judge McInerney in the County Court, the applicant sought severance of the indictment such that charges 1 to 11 would be tried separately to charges 12 to 20. His argument was that the two periods of alleged offending were separate and distinct both as to time and as to the allegations made, the first group being of consensual activity, the second being of non-consensual activity that would be ‘likely to excite revulsion in a jury’ such that a judicial direction would be unlikely to be effective to remove the risk of unfair prejudice to the applicant.
The argument put by defence counsel in support of his application for severance focused on what he referred to as the repulsive nature of the conduct alleged in some of the rape counts ― that is to say, the complainant having been restrained, her having been in school uniform, her having been penetrated anally and/or whilst in a catatonic state or whilst she was asleep. These factors, he argued, were likely to cause the jury to take such an adverse view of the applicant that no direction from the trial judge could obviate the possibility of their approaching their task other than objectively.
He argued that because of the nature of the later charges, there was a real risk that the jury, despite any judicial direction, would engage in propensity reasoning with respect to the earlier charges. In particular, he referred to the issue of the applicant’s belief as to the complainant’s age. Counsel also referred to factors of convenience which he said meant that severance would not be unduly oppressive or inconvenient.
The trial judge rejected the defence application, holding that any revulsion or the like which a jury might feel could be adequately and appropriately overcome by judicial direction, by which it may be inferred his Honour was referring to an appropriate and specific separate consideration direction with respect to each charge. His Honour distinguished this case from one of paedophilia or the like and referred to the very discrete issues which the jury will need to consider with respect to charges 1 to 11 as compared to the issues raised by charges 12 to 20. His Honour decided that the applicant would not be deprived of a fair trial if severance were not ordered.
The Crown does not contend that any of the evidence to be led in this trial is cross‑admissible overall or even in respect of some of the charges, so that an appropriate warning concerning the need for dispassionate consideration of each charge on its own merits with respect to the evidence relating to it will be required. It must be assumed that the trial judge will give such a separate consideration direction to the jury in due course.
Upon the trial judge delivering his ruling dismissing the application for severance, counsel sought certification of that ruling pursuant to s 295(3) of the Criminal Procedure Act2009. The trial judge refused the application for certification. The applicant has now sought leave to appeal the trial judge’s ruling to this Court and has also sought a review of the trial judge’s refusal to certify pursuant to s 296(1) of the Act.
As both the applicant and the Crown provided written argument on the merits of an appeal against the trial judge’s ruling as to severance, this Court determined, in accordance with r 3.06(1) of the Supreme Court (Criminal Procedure) Rules 2008, to treat the hearing of the application for leave to appeal and the application for review of the refusal to certify as the hearing of the appeal against the ruling itself.
In his written argument, as expounded orally before this Court, counsel for the applicant contended that the trial judge had acted upon a wrong principle, had allowed extraneous or irrelevant matters to guide or affect him, had mistaken the facts and had failed to take into account material considerations in refusing severance of the indictment. He accepted, however, that the function to be performed by the trial judge in a case such as this involves the exercise of a discretion governed by the principles in House v The King[1] and he put no argument as to the statutory presumption concerning the trial of multiple sexual offences enacted by s 194 of the Criminal Procedure Act 2009: see R v TJB [1998] 4 VR 621; R v Best [1998] 4 VR 603; and R v KRA [1999] 2 VR 708.
[1](1936) 55 CLR 499.
Counsel emphasised that the danger of propensity reasoning was not adequately addressed by the trial judge in his ruling and that his Honour did not descend to sufficient particularity with respect to those aspects of charges 12 to 20 which gave rise to a concern as to such reasoning. He referred to a number of matters going to the gravity and the heinousness of the latter charges which he argued were not addressed in the trial judge’s ruling. He contended that these matters had not been taken into account or into account appropriately in reaching the decision to which his Honour came.
Counsel also submitted that, in referring to the decision to seek severance of the indictment as a ‘forensic decision’ and commenting that the defence would be better off with all charges being determined together, the trial judge had been influenced by irrelevant considerations.
The trial judge’s ruling incorporated a copy of the Crown opening which extensively set out the facts of the applicant’s alleged offending. His Honour expounded the principles applicable to the task he was required to undertake and concluded that there should be no severance of the indictment. He referred to a
number of authorities on severance and canvassed the facts of the charges in summary form. He distinguished the issues involved in the earlier charges from those involved in the later ones and referred to some aspects of the matters which might arouse a tendency to unfair prejudice in some jurors. He concluded:
Given the above, the issue for the Court is to determine whether the hearing of these charges in one trial creates circumstances of impermissible prejudice for [the applicant]. Having giving the matter close consideration, I do not form that view.
I consider that with appropriate directions to the jury, given the particular nature of these charges and the relationship, that a fair trial can be guaranteed in regard to all of these counts for [the applicant] if heard as one trial.
His Honour’s rejection of the application was not impeachable as now contended for by the applicant. I would dismiss the appeal.
MANDIE JA:
I agree with Bongiorno JA.
I would only add the following. In my opinion, the ruling of the judge was correct for the reasons that he gave. I am satisfied that his Honour applied the correct principles, took into account all relevant matters and did not take into account any irrelevant matters.
Had I been of the view that his Honour had made any errors of law, as argued on behalf of the applicant, I would have been of the view that this Court, taking into account all of the submissions made by counsel for the applicant, should nevertheless exercise its discretion in the same way as the trial judge.
The orders of the Court will be:
1. That the hearing of the applications made by the applicant be treated as the hearing of the appeal.
2. That leave to appeal be granted and the appeal be dismissed.
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