JRW v The Queen
[2013] VSCA 255
•20 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0123
| J R W |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | REDLICH, WEINBERG & COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 March 2013 |
| DATE OF JUDGMENT | 20 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 255 |
| JUDGMENT APPEALED FROM | DPP v JRW (Unreported, County Court of Victoria, Judge Murphy, 2 April 2012) |
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CRIMINAL LAW – Leave to appeal against conviction – Whether trial judge erred in permitting evidence pertaining to a charge the subject of a directed acquittal from being led as context evidence for other charges – Complainant gave no evidence of the charge – Directed acquittal due to a lack of particularity – Directed acquittal misapplied the principles of particularisation in PPP v The Queen (2001) 27 VR 68 – Whether the trial judge erred in directing the jury as to the use of the context evidence – Leave to appeal refused – R v VN (2006) 15 VR 113 applied.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Robert Davis |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Office of Public Prosecutions |
REDLICH JA:
I agree with Coghlan JA that leave to appeal should be refused.
It is well settled that where there is repeated sexual abuse of the complainant in indistinguishable circumstances, the legal requirement of specificity will be satisfied by evidence from the complainant as to the first occasion that it occurred. The rulings by the trial judge in which he directed acquittals on numerous counts appears to reflect a misunderstanding of the ‘first occasion’ particular. In PPP v The Queen,[1] the court explained what it was that must be established in order to make out the particular of a first occasion of repeated acts of the same kind committed in the same circumstances. First the evidence of what occurred on the first occasion must establish the elements of the offence. Second, the complainant must have a degree of recollection that enables the complainant to say that such particular conduct had not previously occurred. As was stated in PPP, it is not necessary that the recollection of the detail of the ‘first occasion’ contain some feature which distinguishes it from later occasions. Third, the evidence must establish that the ‘first occasion’ occurred within the period stated in the count.
[1](2010) 27 VR 68 (‘PPP’).
I agree with Coghlan JA that the direction to acquit on charge 12 was erroneous. That direction was based upon the view that there was an absence of any evidence by the complainant as to that charge and hence it was not known what the evidence was that supported the charge. In his ruling, the trial judge concluded that as there was no evidence from the complainant in support of this charge, the jury could not be satisfied that the particular alleged event had occurred. But this was not a charge particularised as a first occasion. The need for evidence from the complainant did not arise. Evidence from a witness other than the complainant might have sufficed. There was no reason why the evidence of the sister was
incapable of satisfying the jury to the criminal standard. She had observed conduct sufficient to establish the offence notwithstanding the complainant’s silence. The trial judge had no power to withdraw the charge from the jury’s consideration because he did not regard the evidence as sufficient to support a conviction to the criminal standard.
Having acquitted the applicant on this charge, the acquittal was not to be controverted. But the trial judge was right to direct the jury that they could act upon the sister’s evidence as evidence of a sexual interest by the applicant in the complainant. That was so whether the sister’s evidence was to be viewed as evidence that had been led in support of charge 12 or merely as evidence which supported an offence which could not be identified with specificity, so that it was a case of latent duplicity. In either event, the jury could still rely upon it as proof that the applicant had a sexual interest in the complainant so long as it was not treated as proof of the indecent assault charged.[2]
[2]See the discussion in R v VN (2006) 15 VR 113.
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Coghlan JA. I agree, for the reasons set out by his Honour at [25]-[42] that leave to appeal should be refused.
COGHLAN JA:
The applicant seeks leave to appeal against his conviction on two charges of incest. He relies on the following grounds:
1. The applicant’s trial miscarried as a result of the trial judge allowing the prosecution to rely on the evidence of the alleged event that had formed the basis of Charge 12, in support of Charges 8 and 11, in circumstances where the trial judge had ruled that the jury could not be satisfied that particular event occurred.
2. The trial judge erred in failing to provide the jury with any instructions as to the consequences of the not guilty verdict in respect of Charge 12.
The prosecution case consisted of three charges of gross indecency (charges 1, 6 and 9), five charges of indecent assault (charges 2, 3, 4, 10 and 12) and four charges of incest (charges 5, 7, 8 and 11).
The complainant lived in a two bedroom house with her father and sister. She initially shared a bedroom with her sister but when her mother moved out, the complainant moved into the main bedroom and her father, the applicant, would usually sleep in the lounge room. In evidence in chief the complainant gave a general narrative about abuse which commenced a few months after she started to sleep in the main bedroom from the time she was aged 14 until she was aged about 16 or 17. The sexual activity involved the applicant kissing her with an open mouth, touching her breasts and vagina, penetrating her vagina digitally, performing oral sex on her, one occasion of the complainant performing oral sex on him and numerous occasions of penile vaginal intercourse including one occasion of intercourse with him wearing, what was described in the trial, as a ‘cock ring’.
In both evidence in chief and cross-examination the complainant said that she could not identify the first occasion or give any particular evidence about it. The two charges which were particularised were the charge of oral sex performed by the complainant (charge 8) which had occurred on only one occasion and the sexual intercourse while wearing the ‘cock ring’ (charge 11). They were the two charges which went to the jury and led to conviction as the judge had already directed acquittals on the other ten charges on the indictment
One of the charges which resulted in a directed acquittal was a charge of incest (charge 12) that was supported solely by the evidence of SJ, the sister of the complainant. She gave evidence that there was an occasion when she woke up in the lounge room of the house and observed her father who was naked and lying on top of the complainant.
The complainant gave no evidence of that incident, and was not asked about it, either in evidence in chief or in cross-examination. She also gave no evidence about charge 10, a charge of indecent assault.
At the end of the evidence a no case submission was made in relation to a number of charges. In relation to charges 1-7, the no case submission was based upon the lack of certainty in identifying the charges. Those charges had been framed by the prosecution on the basis that they each represented the first occasion on which particular conduct had occurred.
It was true that when the complainant was asked whether she could identify the ‘first occasion’ in both evidence in chief and cross-examination, she could not do so. Much attention was focussed on the complainant’s inability to say what was the actual first time ie to describe the actual conduct which constituted the first occasion. If she had been able to so identify the conduct then the conduct would have been sufficiently identified and particularised. It would then have constituted a charge in its own right, and would not have needed to be identified as the first occasion on which the conduct of the type complained of had occurred.
This case proceeded on the basis that if there were multiple occasions on which offending conduct occurred, and if the complainant was unable to say that she remembered the first occasion specifically then the charge would be considered bad due to uncertainty.
The prosecution accepted that was the position at law.
His Honour in his ruling said:
The Counts 1, 2, 3, 4, 5, 6 and 7 were all first occasion counts. The cases allow first occasion pleadings. However they do require that there be some evidence that allows the particular occasion to be distinguished from all others. In PPP at paragraph 57 Justice Redlich says that that is what DWB stands for and also at paragraph 56 of the same case. In the evidence-in-chief and the cross-examination of the complainant she repeatedly conceded that she was unable to distinguish the first occasion of the hugging which is Count 1, the French kissing, which is Count 2, from the other occasions where the same events occurred. When she was pressed in cross-examination, and even in evidence-in-chief she conflated hugging, kissing and then through to a digital penetration. And was unable to give any external details of the relevant first occasion such as to allow the accused man to properly press and analyse what exactly the surrounding circumstances in order to challenge her credibility on the various counts.
So on that basis I am satisfied that there is latent duplicity in the first occasion, Counts 1 and 2. Count 3 and 4 were opened as the only two occasions of lingual penetration, and the learned prosecutor conceded that in the light of her evidence, that in fact she said that lingual penetration happened on three or four occasions, and in her cross-examination conceded that she was unable to differentiate the specific first occasion of lingual penetration. The same reasoning applies to Counts 3 and 4.
The same reasoning applies in relation to Count 5, which is the first occasion of intercourse in the bedroom where, again, she was unable to identify that with any precision, without any external details of the circumstances associated with that first act of intercourse. The learned prosecutor took me to her evidence-in-chief on that matter but when, on page 187, again she conflated the particular event with earlier events in the bedroom, and also failed to provide any matters external to her which would allow the accused man to properly challenge that particular event. On that basis Count 5 is latently ambiguous and I propose to direct the entry of an acquittal on that.
In relation to Counts 6 and 7, the events in the shower, they were opened as separate incidents, yet, again the complainant in her evidence conflated those two events, and indeed then proceeded to say that there were a number of events of a similar nature in the shower, and that the events in the bedroom and the shower continued every two weeks for the relevant period, about twice a month for the relevant period, again without any external detail which would allow the accused man to properly challenge and test the evidence of the complainant in relation to the events in the shower.
And indeed, the learned prosecutor effectively conceded before the argument in relation to this that Counts 6 and 7 were latently ambiguous, duplicitous. And I propose to direct a not guilty verdict in relation to those too. [3]
[3]T325-327.
The paragraphs from PPP v The Queen[4] referred to in the ruling are those where Redlich JA was, as his Honour said, setting out what he regarded as having been decided by the Court in R v DWB.[5]
[4](2001) 27 VR 68 (‘PPP’).
[5](2008) 20 VR 112.
It is important, however, to have regard to what his Honour said in paragraph 61:
It is now settled in this State, that in order to avoid latent ambiguity in the charge, it may be sufficient for the Crown to nominate the "first occasion" within a specified period of time, if no greater degree of particularity is possible. When the Crown does tie itself to a "first occasion" method of particulars, it undertakes to prove by evidence that a specific act answering the description of the offence charged was the first occasion of such conduct, that it occurred within the period specified in the count, and that no act answering the description of the offence charged occurred earlier, whether within the specified period or outside it. If the existence of the "first occasion" within the dates specified is notional rather than evidence based, then the Crown will have failed to distinguish between the act it set out to prove and the uncharged acts of the same nature and latent duplicity will not have been avoided. But as NVD illustrates, that will not necessarily require that the conviction be quashed.
And what he said in paragraph 65:
The applicant's contention that a "first occasion" particular will be insufficient in the absence of some additional distinguishing feature cannot be sustained. Such a notion is not supported by authority and would be wrong in principle. The particular of the offence as being the "first occasion" will generally be sufficient if the complainant is able to recall the first occasion and give evidence to that effect. Unless it can be demonstrated that the absence of a further distinguishing feature of the occasion will prejudice the accused, such a particular will suffice.
It seems to me to follow that the mere fact that the complainant says that she cannot recall the first occasion on which some conduct occurred as a particular identifiable event forming part of her recollection does not mean that, in a given case, the identification of a first occasion does not provide sufficient particularity to enable an accused to meet and deal with the allegation. There is no doubt that the alleged conduct was in the period or that it occurred on some earlier occasion.
I regard this as such a case. What the complainant described was a series of events which progressed as follows. She said she moved into the main bedroom of the house and after a few months her father started to come into the bed with her. Matters progressed, he started getting into bed naked, later he touched her breasts and progressively began digitally penetrating her.
The defence was denial. The lack of particularisation created no unfairness. The complainant’s sister gave evidence of seeing her father in the bedroom with her sister and seeing him walk naked from the bedroom. She was challenged about the latter but not the former.
Whether on a more detailed analysis the counts should have been left to the jury is now moot but the Court in PPP was at pains to explain how it is the first count particularised might operate and regard should be had to the whole of what the Court said. It is not clear without a detailed analysis to say whether there was sufficient particularity for every charge.
The appellant has been acquitted of those charges and that is the end of the matter.
It is the material which was led in support of charge 12 which has given rise to this appeal. Charge 12 originally was a charge of incest but before the commencement of the trial it had been amended to a charge of indecent assault. It was alleged to have occurred in the period from July 1984 to April 1987.
The somewhat unusual feature of the charge was that the complainant gave no evidence about it and was not asked about it by either counsel. The evidence came from the complainant’s sister who was born on 2 July 1975 and was therefore between nine and 12 years old during the alleged period. She gave evidence that during the relevant period she saw her father asleep in the bedroom with her sister on a sufficient number of occasions as to be able to remember it and she saw him leave the bedroom on occasion whilst being naked. She then described an event which had occurred when she was about 11. She had fallen asleep on the lounge room floor. She says she remembered waking up and seeing her father naked on top of her sister who was also naked. Although she described what she saw as a flash, she was emphatic about what she had seen.
A no case submission was made with respect to charge 12. His Honour from the outset had expressed strong views about the charge. He criticised the prosecution for not asking the complainant about it. In the discussion his Honour linked the absence of evidence from the complainant to a lack of specificity and said that he regarded it as close to pure propensity evidence. In discussion with the prosecutor his Honour said this about charge 12:
PROSECUTOR: Sorry Count 12. It's not a notional first occasion. It's an only occasion. Now it's – I concede that the accused faces difficulties on the lines of forensic difficulties, the fact of the delay or the period of time that has elapsed between the event happening and now – in respect of the witness' memory of the precise time is not good, we have a broad period of time, I concede that difficulty with it, and it's a difficulty that the accused faces, and there can be an appropriate direction about that forensic disadvantage, that Your Honour can couch and must do, in terms of s.61 of the Crimes Act, but that's not about particularity as far as a notion of first occasion is concerned, in my submission. This is an only occasion, it's an occasion in the lounge room, it's an occasion when [SJ]’s in the room.
HIS HONOUR: Yes, but it's - - -
PROSECUTOR: And you know, they're naked, but he's naked and according to the evidence this morning, so was – so was [RJ]. That's what [SJ] said.
HIS HONOUR: Well, she thought she was, I think she said.
PROSECUTOR: Yes, Your Honour, (indistinct) that's right, Your Honour. I mean, in my submission, Your Honour, that's pretty strong evidence.
HIS HONOUR: Yes, it would be strong evidence. It's strong context evidence, but that's one thing – strong context evidence, relationship evidence or something like that, but whether it's enough to constitute a particular count of indecent assault which is what's being alleged, is the issue at this point, where the complainant never said anything happened in the lounge room, so - - -
COUNSEL: And that the (indistinct) occurred. That the only place things happen, were in those two places. I refer to that in the severance argument, over and over again, I think.
His Honour ruled with respect to charge 12:
In relation to Charge 12, that was the subject of the original severance application.
I propose to enter a verdict of not guilty on Charge 12 on the basis that no reasonably instructed jury could enter a verdict of guilty on that charge. The complainant gave no evidence that any sexual occasion occurred in the lounge room. The sister gave evidence that she saw an event that appeared to be the accused man in flagrante delicto with his daughter in the lounge room, however she provided no external details of the event that would allow the accused man to test that particular event. And in circumstances where the complainant gave no evidence of any such event, then a properly instructed jury could not be satisfied beyond reasonable doubt that that particular event occurred.
And indeed the question could be asked rhetorically: If a verdict of guilty was brought in on Count 12, on what basis could the accused man be sentenced for that particular event when the complainant has given no evidence that that particular event has occurred?
The case is distinguishable from the case of VN, a Queensland case where the complainant in that case had given evidence of a particular occasion and the witness in that case pointed to an event that constituted the relevant criminal act. But in this case, on Count 12, there was no evidence of the complainant of any particular occasion in the lounge room. And any conviction on that count would be a case of the jury convicting the accused man on the basis of pure propensity, which is not a trial according to law.
On that basis I propose to enter a verdict of not guilty on that count.
The learned prosecutor did urge that the relevant acts constituted by the counts that have been no cased should be allowed to go to the jury as tendency evidence, and I accept his submission on that basis.
The grounds of appeal concentrate on his Honour’s use of the words in his ruling “then a properly instructed jury could not be satisfied beyond reasonable doubt that that particular event occurred”.
I put to one side for a moment the question of whether his Honour would have been entitled to direct a verdict of acquittal on the basis that the evidence of SJ could not have been accepted.
The argument on behalf of the appellant is that his Honour’s ruling allowing the use of SJ’s evidence as tendency evidence did not give the applicant the full benefit of the acquittal.
It was accepted, in the way the argument was put that consistently with R v VN[6] there was no difficulty in his Honour’s decision to allow the use of the evidence which had otherwise related to the charges subject to a directed acquittal being charges 1-7 and 9. That is because in relation to charges which fail on the basis of latent duplicity there can be no objection to the use of the evidence in relation to other charges if it is otherwise proper to do so, as was decided in VN. It can be seen from what follows that I am satisfied that the basis of the directed acquittal on charge 12 was due to the lack of sufficient particularity for the charge to be made out.
[6](2006) 15 VR 113, [80]-[81] (‘VN’).
That is not the end of the matter. It is important to note that the Court in VN was called upon to consider not only the question of latent duplicity on counts but also other counts to which the plea of autrefois acquit applied.
In VN the question of the correctness of R v Young[7]was raised and although the court did not decide the point Redlich JA observed:
In Storey, Stephen, Mason, Jacobs and Aicken JJ, in a joint judgment, observed that an accused’s acquittal did not preclude the admission of relevant evidence which tended to show the accused guilty of that offence if the jury can be and is directed not to interpret it in such a way as to deny the acquittal. In R v Osborne, Chernov JA, with whom Phillips CJ and Vincent JA agreed, observed, in circumstances not dissimilar to the present, that the Crown was not precluded from relying upon evidence which had been introduced in relation to counts which were the subject of an acquittal by direction, in support of the remaining counts. The joint judgment in the High Court in Phillips v R also illustrates that conduct relating to an offence of which an accused has been acquitted may be introduced by the prosecution in a subsequent trial in support of another offence. It can be seen that compliance with the principle that an acquittal must be recognised fully and without qualification for all purposes in criminal proceedings does not necessarily entail the exclusion at a later trial of relevant evidence led in the previous trial. [8]
[7][1998] 1 VR 402.
[8](2006) 15 VR 113, [86]. Citations omitted.
And then:
Evidence of conduct which was relied upon to establish an offence in an earlier trial may be admissible in subsequent proceedings notwithstanding that there was a verdict of acquittal in relation to that offence. If it be assumed in the applicant’s favour that evidence of his conduct was not admissible if he had earlier been acquitted of the offence constituted by that conduct, it is necessary to examine the evidence that was led, in relation to counts 3, 6 and 9, to determine if it was evidence of conduct in relation to any offence of which the applicant had been acquitted. [9]
[9]Ibid [91].
The general circumstances in VN were that the complainant had given evidence about events which fell outside the dates of the counts. It followed that directed acquittals were appropriate because the conduct was specific and the specified dates and places meant the plea of autrefois acquit would be open on those counts. The use of the evidence that being of conduct outside of the counts could not controvert the earlier acquittal.
It was suggested in argument that when his Honour said in his ruling “then a properly instructed jury could not be satisfied beyond reasonable doubt that the particular event occurred” that this could only mean the reason for the directed acquittal was that his Honour found that the event had not, as a matter of fact, occurred. It should be noted that in his ruling his Honour described the evidence of SJ as follows:
The sister gave evidence that she saw an event that appeared to be the accused man in flagrante delicto with his daughter in the lounge room, however she provided no external details of the event that would allow the accused man to test that particular event.
I regard it as being clear that the reason why his Honour directed the acquittal was that there was insufficient particularity for the event to be identified so that it could justify an identifiable charge and therefore a conviction.
It follows that the reason his Honour allowed the evidence to be used as context evidence was exactly the same as the material in relation to the other directed acquittals.
When the events are analysed in that way, it was appropriate for the evidence of SJ to be used as context evidence.
The judge directed the jury in the following way concerning the evidence:
The second piece of evidence of [SJ] that the Crown wants to ask you to use that sheds light on the relationship between the accused man and [RJ] is what happened, what she said happened in the lounge room when she woke up and saw the accused man naked on top of the complainant.
Now, the complainant gave no evidence about that, and that is why you are not considering that as a count, why Count 12 is out of the trial. But if you accept that evidence beyond reasonable doubt that in fact an event did happen that the complainant was seen by [SJ] - that the complainant was underneath the accused man, in the lounge room, if you find that beyond reasonable doubt over the relevant period, then the Crown says, well, you can use that to show that - you might be able to use that to show that [the applicant] had a sexual interest in the complainant.[10]
[10]Charge DPP v [JRW] (County Court of Victoria, Judge Murphy, 25 November 2011) 364-365.
There can be no doubt that the judge instructed the jury that the sole use of the evidence was on a tendency basis provided they were satisfied of the evidence beyond reasonable doubt. Moreover, the judge explained why charge 12 was not a charge of which the applicant could be found guilty. Directions such as these have been given to the jury before and no error has been found.[11] I do not find that there was any error in the direction given.
[11]R v VN (2006) 15 VR 113, [86]-[90].
I would also refuse leave to appeal on this ground.
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