King v The Queen
[2011] VSCA 423
•13 December 2011
COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0900
| STEVEN KING | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 June 2011 |
| DATE OF ORDERS | 2 September 2011 |
| DATE OF JUDGMENT | 13 December 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 423 |
| JUDGMENT APPEALED FROM | R v King (Unreported, County Court of Victoria, Judge Sexton, 4 September 2009 (date of verdict), 7 September 2009 (date of sentence)) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant found guilty of four counts of incest – Complainant was daughter of applicant’s former de facto spouse – Applicant gave evidence at trial that de facto relationship ended before he commenced sexual relationship with complainant – Whether trial judge’s directions with respect to question of whether de facto relationship existed at relevant time were inadequate – Whether verdicts unreasonable or against weight of evidence – Appeal allowed in part – Evidence relating to count 3 insufficient to establish act of sexual penetration – Evidence relating to counts 4 and 5 suggested that alleged incidents took place after complainant had turned 18 – Convictions on counts 3, 4 and 5 and sentences passed thereon set aside and verdicts of acquittal entered – Crimes Act 1958 s 44(2) – Lambe v Director‑General of Social Services (1981) 38 ALR 405 – Hibberson v George (1989) 12 Fam LR 725 – D v McA (1986) 11 Fam LR 214 – Rolfe v The Queen (2007) 173 A Crim R 168.
CRIMINAL LAW – Sentence appeal – Applicant fell to be re-sentenced on count 2 – Trial judge had sentenced applicant on this count to five years’ imprisonment – Applicant re‑sentenced to four years’ imprisonment with non-parole period of two years and nine months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Boyce | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy with Mr C Carr | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
On 2 September 2011, orders were made granting Mr King leave to appeal, treating the appeal as heard instanter, setting aside the applicant’s convictions on counts 3, 4 and 5 and re-sentencing him to four years’ imprisonment with a non‑parole period of two years and nine months on count 2. These are my reasons for joining in those orders.
I have had the advantage of reading Bongiorno JA’s draft judgment and agree with him that ground 1 fails and ground 2 is made out. I wish only to make some brief remarks on the jury directions which should be given in cases where a person is prosecuted for alleged incest against a child, other lineal descendant or step child of their de facto spouse, who is under 18 years of age.[1] In my opinion, it would rarely, if ever, be necessary for a trial judge to address all of the criteria which are applied in deciding whether a de facto relationship exists or has existed for the purposes of social security law or in adjusting the property rights of couples who have previously lived in such relationships.
[1]Crimes Act 1958 s 44(2).
In the context of social security law, the existence of a de facto relationship may be relevant to a claimant’s eligibility for a particular payment or to the rate of payment. For example, in Lambe v Director‑General of Social Services,[2] the issue for determination by the Federal Court was whether the Administrative Appeals Tribunal had correctly interpreted the definition of ‘supporting mother’ in the Social Services Act 1947 (Cth), in deciding whether a woman who was living with a man, their child and the woman’s child, was entitled to a supporting mother’s benefit. This turned on whether she was:
a woman who is not living with, and for a period of six months has not been living with, a man as his wife on a bona fide domestic basis although not legally married to him.
[2](1981) 38 ALR 405.
A similar issue arises under provisions in social security legislation which are designed to ensure that couples living together in marriage-like relationship do not receive higher pensions and benefits than couples who are legally married.[3]
[3]The legislation now applies the same policy to people in same sex relationships: Social Security Act 1991 (Cth) s 4(2).
Under Part IX of the Property Law Act 1958, courts had jurisdiction to divide the property of de facto spouses on a just and equitable basis. It was therefore necessary for the claimant to show that she or he had previously lived in a de facto relationship.[4]
[4]See now Relationships Act2008 pt 3.3.
Part IX of the Property Law Act1958 was largely modelled on the De FactoRelationships Act 1984 (NSW), which was enacted following a report by the New South Wales Law Reform Commission.[5] That Report recommended that the approach taken in Lambe v Director-General of Social Services should also apply in determining eligibility to apply for property division.[6] Subsequently, the relevant criteria were elaborated in New South Wales property division cases. These included D v Mc A,[7] to which Bongiorno JA refers in his reasons.
[5]New South Wales Law Reform Commission, Report on De facto Relationships, Report No 36 (1983).
[6]Ibid 17.4–17.12.
[7](1986) 11 Fam LR 214.
Both social security and property adjustment laws are primarily concerned with the economic consequences of co-habitation. The criteria for a de facto relationship adopted by the courts in such cases include matters such as the extent of the parties’ financial interdependence and any arrangements for support made by them, and the ownership, use and acquisition of their property. These factors pertain mainly to the parties’ financial relationship.
By contrast, incest laws originally applied only to sexual penetration in the context of blood relationships, but were later extended to cover sexual penetration of the children, step children and lineal descendants of a de facto partner. The purpose of this extension was to protect children from sexual exploitation within close family relationships. The factors which are most relevant to determining whether such exploitation has occurred include the duration of the couples’ relationship and whether they are emotionally and socially committed to each other and to the children, stepchildren and grandchildren of both of them.
In my view, jury directions would be unnecessarily over-complicated if trial judges had to refer routinely to all of the matters discussed in cases such as D v McA[8] in charging a jury as to the matters to be taken into account in deciding whether people were in a de facto relationship for the purposes of s 44(2) of the Crimes Act 1958. De facto relationships are now relatively common and jurors are likely to know couples who live together in a committed relationship. I consider that it would normally be sufficient to instruct the jury that a de facto relationship arises when a heterosexual couple openly live together in a relationship similar to marriage, which involves substantial emotional commitment. The duration and stability of the relationship and whether it involves each member of the couple caring for each other and/or their natural or step-children is relevant in demonstrating the existence of that commitment. Where one party claims to have terminated the relationship, the jury should be told that it is open to either party to withdraw their commitment and terminate the relationship and that the jury’s task is to decide whether the relationship had ended, prior to the alleged acts of sexual penetration.
[8](1986) 11 Fam LR 214, 227-8.
Having regard to the purpose of the legislation, it might well be appropriate for s 44(2) of the Crimes Act 1958 to be re-drafted to apply in cases where a person sexually penetrates a child with whom he or she is in loco parentis, rather than requiring the existence of a de facto relationship between the child’s parents, step parents or step grandparents.[9]
[9]Of course, such an offender might also be prosecuted under ss 45–49 of the Crimes Act1958, rather than for incest.
REDLICH JA:
For the reasons given by Bongiorno JA in relation to ground 2, I joined in the orders made on 2 September 2011. I do not find it necessary to express any view about ground 1. Consideration of the issue as to when a de facto relationship exists should await an occasion when it has been the subject of full argument on appeal.
BONGIORNO JA:
Steven King was indicted before the County Court on a presentment alleging one count of maintaining a sexual relationship with a child under the age of 16 and four counts of incest. The allegations against King were that he had been sexually abusing XP, the daughter of his former de facto wife, since she was a small child, which abuse had continued at least until her 18th birthday. The count of maintaining a sexual relationship, contrary to s 47A of the Crimes Act 1958, related to the period up to XP’s 16th birthday and the counts of incest, contrary to s 44(2), to the period between her 16th and 18th birthdays.
After a trial in the County Court before her Honour Judge Sexton in September 2009, King was acquitted of the charge of maintaining a sexual relationship but found guilty of the four counts of incest. He was convicted on each count by the trial judge and sentenced to a total effective sentence of six years and 10 months’ imprisonment. Her Honour fixed a non‑parole period of five years. He now seeks leave to appeal his convictions for incest and the sentences imposed upon him.[10]
[10]The applicant was granted leave to appeal against his sentences by Neave JA on 11 June 2010.
Section 44 of the Crimes Act 1958 creates a series of statutory offences under the broad heading ‘Incest’. It prohibits a person from taking part in an act of sexual penetration with his or her child or other lineal descendant or his or her step-child. It also prohibits a person in a heterosexual de facto relationship from taking part in an act of sexual penetration with a child or other lineal descendant or step-child of
his or her de facto spouse. However, criminal liability is confined in such a case to acts of sexual penetration that take place whilst the child or other lineal descendant or step-child is under 18 years of age. The offence carries a maximum penalty of 25 years’ imprisonment.
XP was born on 18 April 1989. All the acts of incest the subject of this application were alleged to have occurred between 6 October 2006 and 17 April 2007 — the day before her 18th birthday. They were framed in the most general of terms. Three of the counts (counts 2, 3 and 5) concerned acts of penile/vaginal penetration, each act differentiated from the others only by reference to its not being one of those other acts. Count 4 concerned an act of fellatio committed on an unspecified date during the same period. Each count described the place at which the charged offence was alleged to have taken place in terms no more specific than ‘at [a Victorian provincial city]’.
In his opening address to the jury (as far as it was relevant to counts 2, 3, 4 and 5), the trial prosecutor referred extensively to the Crown case concerning the de facto relationship which allegedly existed between King and XP’s mother during the relevant period. In relation to the acts of sexual penetration alleged in counts 2, 3, 4 and 5, his references to particular incidents were general and not related specifically to the counts or the presentment. The prosecutor described a pattern of behaviour by the applicant over a period of time during which he and XP worked together in the same workplace — between October 2006 and May 2007. He said that sexual penetration of XP by the applicant was repeated ‘nearly every night’ for the whole period that they worked together. He spoke of occasions when sexual penetration occurred in the toilets and others where it occurred ‘behind a shipping container’. He also referred to one occasion where, during fellatio performed on the applicant by XP, she bit his penis, causing it to bleed. It appeared that this event related to count 4 on the presentment although that was not made clear. The prosecutor did not explain the purpose or relevance of a large number of acts of sexual penetration to which he referred but which were not the actus reus of any particular count on the presentment.
In his opening statement, counsel for the applicant admitted ‘sexual activity’ between his client and XP, but said that it had only occurred after she turned 15. As for counts 2, 3, 4 and 5, his case was that the Crown could not prove that during the period referred to in those counts his client and XP’s mother were in a de facto relationship. Their relationship had broken down, he said, following the birth of their third child in 2004. The applicant was ‘simply a boarder’ during the charge period. Counsel took no issue, either before the jury or in their absence, with the lack of specificity in the Crown case in respect of counts 2, 3, 4 and 5.
The grounds upon which King seeks leave to appeal his conviction are:
1The trial judge erred by failing adequately to define for the jury the necessary preconditions that would require satisfaction before it could be concluded that the applicant and [XP’s mother] were in a de facto relationship.
1(a)The learned trial judge failed to direct the jury that it was necessary before guilt be proved that the applicant know that he was the de facto spouse of [XP’s mother].
2The verdicts of guilty are unreasonable or against the weight of the evidence.
On the hearing of this appeal, counsel for the applicant (who was not his counsel at trial) abandoned reliance on ground 1(a) and argued only grounds 1 and 2.
Ground 1 ― Trial judge’s directions on the de facto relationship question were inadequate
The trial judge’s direction to the jury as to the meaning of the phrase ‘de facto spouse’ as it is used in s 44(2) of the Crimes Act 1958 was in the following terms:
the prosecution must prove that the accused and [XP’s mother] were de facto spouses at the relevant time. A de facto spouse is defined in this way. That is: a person who is living with someone of the opposite sex as if they were married, although they are not. So that is the way that the law defines it. There is no requirement that there be an ongoing sexual component to the relationship, just as in marriage there may not be an ongoing sexual component, but that is of course a major and relevant consideration. You would also consider the level of emotional, financial and social commitment by the parties.
Her Honour then referred to some of the evidence going to this issue and, in particular, to XP’s mother’s evidence that a de facto relationship existed until 4 March 2007 but that on that date it broke down and the parties separated.
This direction is, in effect, the definition of ‘de facto spouse’ provided in s 35(1) of the Crimes Act 1958 for use in cases brought under s 44(2) with some additional comments. No exception was taken to it by the applicant’s counsel at trial but, in this Court, counsel criticised the direction as being inadequate.
In fact, the case, both of the Crown and of the defence on this issue, appeared to concern itself largely, if not solely, with whether there was a sexual relationship between XP’s mother and the applicant during the relevant period. Most of the evidence relevant to the issue seemed to be directed to this question, although there was some evidence which went to other aspects of the relationship between the applicant and XP’s mother, including evidence that she cooked and washed clothes for him even when the sexual element of their relationship may have been absent and evidence from the applicant that he performed some household chores. However this may be, there was nothing in the trial judge’s directions to the jury, in the context of the cases of both the Crown and the defence, which would have caused it to consider whether the parties remained in a de facto relationship during the relevant period though they were no longer in a sexual relationship.
It was common ground that the applicant and XP’s mother had been in a de facto relationship for some years prior to the events giving rise to these charges and had had children together. XP spoke of her mother and the applicant still sharing a bedroom at the time her youngest sibling, a sister, was born (in 2004) but of their not doing so shortly afterwards. However, she rejected a suggestion that the applicant was ‘virtually a boarder’ from that time onwards. This matter was not explored further, both the Crown and the defence being apparently content to conduct the case on that basis.
XP’s mother gave evidence that her relationship with the applicant ended on 4 March 2007, her birthday, when she ‘kicked him out’. She said that on that day he had told her that he hated her. She said he subsequently sought to see the children and she allowed him to do this. Some time later, he told her he had been vomiting blood and that he had stomach cancer. She said that she then offered him the use of her (external) bungalow. Her evidence about when he moved into the bungalow was somewhat conflicting. She initially said that this took place ‘a bit after mid-2007’ but later appeared to suggest that it must have occurred around three months prior to mid-2008. She said the applicant lived in the bungalow for about three months, a figure which he contested. He maintained that it was a much longer period.
The applicant gave evidence. He said that his relationship with XP’s mother broke down finally after the birth of their youngest child in 2004. He said he began living in the bungalow about a month after he left the house. He maintained that there was no sexual relationship with XP’s mother whilst he lived in the bungalow. He said that XP’s mother’s evidence that the de facto relationship broke down only in March 2007 was a lie.
The question of whether there existed a de facto relationship between King and XP’s mother at any particular time was, of course, a question of fact for the jury to decide. Section 35(1) of the Crimes Act 1958 defines the expression ‘de facto spouse’ by reference to marriage. But the use of marriage as a reference point in such a definition begs the question. Marriage is defined in law in terms of the taking of procedural steps in compliance with a statute. Once those steps are taken, the legal status of married person is acquired by each of the parties to the marriage and the state of marriage subsists without further requirement. A de facto relationship is fundamentally different. Whether it exists or not at any particular time can only be determined by an examination of a number of characteristics which together suggest a marriage‑like relationship without a marriage.
In Hibberson v George,[11] the New South Wales Court of Appeal considered the application of a statute which defined the term ‘de facto relationship’ by reference to whether the parties were ‘living … together as husband and wife on a bona fide domestic basis’. With reference to the difference between such a relationship and marriage, Mahoney JA said:
[11](1989) 12 Fam LR 725.
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.[12]
[12]Ibid 740. Hope and McHugh JJA agreed with Mahoney JA’s conclusions with respect to the issue of whether the parties were in a de facto relationship at the relevant time.
With respect to the same statutory definition, in D v McA,[13] Powell J observed:
[13](1986) 11 Fam LR 214.
just as human personalities and needs may vary markedly, so also will the aspects of their relationship which lead one to hold that a man and woman are, or are not, ‘living together as husband and wife on a bona fide domestic basis’ be likely to vary from case to case. This being so, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:
(a) the duration of the relationship;
(b) the nature and extent of common residence;
(c)whether or not a sexual relationship existed;
(d)the degree of financial interdependence, and any arrangements for support, between or by the parties;
(e) the ownership, use and acquisition of property;
(f) the procreation of children;
(g) the care and support of children;
(h)the performance of household duties;
(i) the degree of mutual commitment and mutual support;
(j) reputation and ‘public’ aspects of the relationship.[14]
[14]Ibid 227.
In the area of federal social security law, where questions concerning de facto relationships commonly arise, the Full Federal Court has held that ‘all facets of the inter-personal relationship of the two persons need to be taken into account’ in determining the existence or otherwise of such a relationship.[15] In Lynham v Director‑General of Social Security,[16] Fitzgerald J considered whether the financial arrangements between the parties should be of particular importance in determining the nature of their relationship. His Honour said:
Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.[17]
[15]Lambe v Director-General of Social Services (1981) 38 ALR 405, 413 (Evatt, Fisher and Ellicott JJ).
[16](1983) 9 Fam LR 305.
[17]Ibid 307.
There are many references to de facto relationships, variously described, in both state and federal legislation. Some Acts provide a definition in terms similar to those used in s 35(1) of the Crimes Act1958; some do not. It is not insignificant, however, that more recent Victorian legislation lists some or all of the criteria referred to by Powell J in D v McA as being relevant to the determination of the existence or otherwise of a de facto relationship.[18] In other Australian jurisdictions, various techniques are used to give content to the concept of a de facto relationship or de facto spouse where those concepts are relevant to the proscription of certain conduct, the determination of legal rights or the regulation of certain relationships. Sometimes, the legislative provision is Act-specific but general in its terms. For example, in the Australian Capital Territory, the expression ‘step‑child’ is defined for the purposes of an incest provision by reference to a person who stands in loco parentis to that child,[19] which definition would often include the de facto spouse of the child’s mother although whether it did may depend on the precise factual circumstances of all of the relationships involved. In other jurisdictions, interpretation Acts, by whatever name called, sometimes include definitions which provide content to terms such as ‘de facto partner’[20] or ‘de facto relationship’.[21] Invariably, where content is provided, it is concerned with factors such as those referred to by Powell J in D v McA.
[18]See, eg, Evidence Act 2008 Dictionary pt 2 cl 11; Relationships Act 2008 s 35 (definition of ‘domestic relationship’).
[19]Crimes Act 1900 (ACT) s 62(6).
[20]Acts Interpretation Act 1954 (Qld) s 32DA.
[21]Interpretation Act 1984 (WA) s 13A.
The cases to which reference has been made were concerned with property disputes between alleged de facto partners and entitlements under federal social security legislation. The legislative purpose of s 44(2) of the Crimes Act 1958 is, of course, not the division of property between former de facto spouses or the determination of social security entitlements but rather the protection of the children of one partner to a de facto marriage from sexual assault by his or her de facto spouse. Depending on the issues raised by the specific case, some of the factors referred to by Powell J in D v McA may assume greater or lesser importance in determining the status of the relevant parties’ relationship.
The issue in this case was not whether a de facto relationship existed at some time between the applicant and XP’s mother. There was no dispute that such a relationship existed up until the birth of their third child together in November 2004. The dispute was whether that relationship ended then (as the applicant asserted) or on 4 March 2007, the specific date nominated by XP’s mother.
Although created by mutual consent without any necessary formality, the termination of a de facto relationship does not require the mutuality necessary to its creation. It can be terminated unilaterally, again with no formality, though whether mere words of termination would be sufficient to end such a relationship would depend upon all the surrounding circumstances of the particular case. Words may not be enough if, for example, cohabitation and some of the other incidents normally associated with marriage continued. In the context of criminal liability, where the existence of a de facto relationship is a necessary element of an offence, it may often be necessary for the jury to be instructed as to the difference between a de facto relationship and a marriage, the factors it must consider in determining the existence of such a relationship and the lack of formality which may attend its commencement and termination. This may be particularly so where whether such a relationship has been terminated or the date upon which such termination was effected is or may be a matter upon which guilt of a crime depends. It will, of course, always depend upon how the case is conducted by the parties and upon the issues raised by them.
In the instant case, where there was very little evidence as to the existence or nature of the alleged de facto relationship outside its sexual component, but where both parties were content to conduct the case without exploring the issue further, the directions given by the trial judge were adequate, especially where no exception was taken to her Honour’s charge on the de facto relationship question.
In the circumstances, I would not uphold this ground of appeal.
Ground 2 ― Verdicts unreasonable or against the evidence
The second ground of appeal argued by the applicant was that the jury verdicts on counts 2, 3, 4 and 5 were unreasonable or against the weight of the evidence. The argument put by counsel addressed this ground in the conventional way, concentrating on the disputed issue of the existence of a de facto relationship. However, a close perusal of the case after the hearing of the appeal led the Court to invite further submissions from counsel concerning the evidentiary basis for the acts upon which those convictions were based and as to whether the verdicts were tainted by latent duplicity. In the event, these further submissions were of considerable significance.
The Crown case as to the acts alleged in counts 2, 3, 4 and 5 was that they all occurred whilst the complainant was employed at one particular workplace. The applicant was also an employee at this workplace and had obtained a job for the complainant there. She said that she commenced working in that job in about October 2006 and was there for a year.[22] She worked nightshift with the applicant and they both rode their bikes from their home to that workplace.
[22]The prosecutor had earlier said in his opening address that the complainant was employed at this workplace between October 2006 and May 2007.
The complainant described habitual sexual activity with the applicant which occurred ‘practically every night’ at the workplace in the following terms:
Well, once everybody had finished and clocked off, because he was the person to lock up, he would make us wait behind until everybody left and he’d either take me into the toilets and pull my pants down, put his penis in my vagina and that’s about it.[23]
XP gave much, similar, non-specific evidence, none of which was related to any specific count on the presentment. No objection was taken to its admissibility.
[23]Transcript of Proceedings, R v King (County Court of Victoria, Judge Sexton, 1 September 2009) 112 lines 7–12.
Although the prosecutor, in opening his case to the jury, referred to specific incidents of sexual penetration, it is difficult to relate those incidents to XP’s evidence as she subsequently gave it. For example, the prosecutor said that on the first occasion that sexual penetration occurred at the applicant and XP’s workplace, it involved his pushing her up against a wall in a toilet, kissing her, pulling her pants down and penetrating her vagina with his penis.[24] The Crown identified this event in its submission as being the substance of count 2. However, in identifying XP’s evidence on this count, the Crown directed the Court to the following passage:
If I can take you back through the events of what happened to you when you started working at this place, [the workplace], how long was it after you started working that the first sexual act occurred to you?---Um, probably a couple of nights.
Where was the first act that occurred?---In the toilets.
That’s the toilet that we’ve seen in the Photograph No. 1 of the set of photographs, is it?---Yes.
After that occasion occurred, about how many other times did it happen to you that the same sort of thing happened in the vicinity of the toilets?---Nearly every night.[25]
[24]Ibid 11 lines 18–27.
[25]Ibid 124 lines 5–15.
In leading this evidence from the complainant, the prosecutor referred to a ‘sexual act’ not sexual penetration. This could have led to difficulties regarding the evidentiary basis for the actus reus of count 2. Earlier in the complainant’s evidence, however, she had given evidence of the event which became count 4, an allegation of fellatio. Immediately after that evidence, the following exchange occurred between the prosecutor and the complainant:
Had that sort of thing happened before? I don’t mean that you bit him before, but rather, that he’d asked you to have that type of sex act?---I think once before when I was - whether I forget it did happen but I'm not 100 per cent sure.
Were there any other types of sexual activity that had occurred other than the penis and vagina type and that type? ---No.[26]
It would, accordingly, have been inevitable that the jury would have understood the complainant’s evidence concerning count 2 to have been that the applicant had sexually penetrated her on that occasion. This is particularly so because there was no challenge whatsoever by the applicant’s counsel to the complainant’s evidence in this regard in cross‑examination nor did the applicant himself deny the substance of it in his evidence.
[26]Ibid 112 lines 24-31.
The next occasion opened by the prosecutor (and subsequently identified by the Crown in its written submission) was in terms that the applicant ‘did it in a way that caused so much pain to her that she literally cried’.[27] If this was intended to outline the circumstances of count 3, it bears no resemblance to the evidence given by XP now relied upon by the Crown on that count. That evidence did not refer to sexual penetration at all. At best, it described an attempt. It was as follows:
Did there occur any other sexual activities between you and him after that occasion?---Yes.
What happened between you and him next?---We were at work, he had taken me out the back of work around behind all the sheds. He had tried to have sex with me, I didn’t want to, I was putting up a fight, I ended up wee-ing myself because I was that upset and then Jason, another guy that we work with, he took me home.
How did Jason come to be there?---He was working and then — ‘cause after I’d worked myself, Steve had called me, ‘You dirty little thing,’ and he walked away and the next second Jason said he’ll take me home so I can get changed, ‘cause Steve had told me that I’d wet myself.
The location that you’ve just mentioned at the back of — could you describe that again perhaps?---There’s just empty pellets [sic] just stacked up.
Where is it in relation to the other locations that you’ve mentioned that you’d go with or that he’d come with you, in effect, or follow you, to the toilets; how far away are they from each other?---It’s the other side of the building, so pretty well - - -[28]
[27]Ibid 11 lines 28–30.
[28]Ibid 113 line 18 – 114 line 7.
With respect to the factual circumstances of counts 4 and 5, XP described the fellatio incident (count 4) in the following terms:
He tried to make me suck on his penis and I didn’t want to and he was pulling my hair and told me I had to and I didn’t want to so I bit him on his penis and he was bleeding.[29]
[29]Ibid 112 lines 16–19.
Subsequently, she acceded to a suggestion by the prosecutor that this event occurred towards the end of her time at the workplace.[30] As to the acts constituting count 5, which XP said occurred a couple of days after the count 4 incident,[31] her evidence was as follows:
[30]Ibid 126 lines 23–6.
[31]Ibid 128 lines 18–21.
You’ve said a little while earlier you bit is [sic] penis?---Yes.
Did you see his penis on that particular occasion?---I didn’t see it, no.
Did you notice anything about what it looked like or anything to do with him?---No, it was — no, not that night. I’d seen it a couple of days later and it was swollen and black.
Where had you seen it a couple of days after?---When he had taken — when I was in the toilets when he come in.
There’s an occasion - - -?---After.
There’s, what, the night that you bite the penis?---Yes.
Then there’s the next night that he has sexual penetration with you?---Yes.
Then there’s a third night - - -?---Yes.
- - - when you actually see it?---Yes.
What state was it in on the third night?---Quote [sic] swollen and black.
What, as in bruising?---Yes.
Whereabouts on his penis was it bruised?---Just halfway down.
Did he say anything to you about that on that occasion?---No.
Did you say anything to him?---No.
That event that we are just talking about; was that the last sexual encounter between you and him?---No.[32]
[32]Ibid 128 line 14 – 129 line 7.
The evidence relied upon by the Crown as to count 2 is capable of establishing that the applicant took part in an act of penile/vaginal penetration with XP. However, the evidence relied upon by the Crown as to count 3 is insufficient to prove an act of sexual penetration. Indeed, it strongly suggests that, on the occasion described, such an act did not occur.[33]
[33]In any event, the incident to which count 3 relates may well have occurred after the event the subject of count 4, thereby, for the reasons that follow, eliminating it as a possible basis for a count of incest.
With respect to counts 4 and 5 (and possibly count 3), the Crown is met with a different and more fundamental problem. The act constituting count 4 was described by XP as having occurred towards the end of her time at the relevant workplace. As she said she commenced work at that workplace in October 2006 and was there for about a year, she appears to be describing an event which occurred well into the second half of 2007. By that time, on the Crown case, the de facto relationship between XP’s mother and the applicant had ceased, the indictment period had expired and, most importantly, XP had turned 18. Although the presentment could have been amended to cure any procedural defect caused by the definition of the indictment period, the other two impediments to conviction are insuperable. The situation is the same with respect to the penile/vaginal penetration alleged in count 5. XP placed that, in time, shortly after the fellatio episode. It may also be the same with respect to count 3, as the complainant appeared to give evidence to the effect that the incident to which this count related occurred after the act the subject of count 4.[34] Certainly, it would not have been open to the jury to find beyond reasonable doubt that that event occurred before the complainant’s 18th birthday.
[34]See Transcript of Proceedings, R v King (County Court of Victoria, Judge Sexton, 1 September 2009) 113 lines 18–19.
It should be said that the Crown sought to fix the date of the fellatio episode as being before the de facto relationship ceased by reference to evidence given by XP’s mother that the applicant showed her his injured penis and told her that he had injured it when he caught it in the zip of his fly. The trial prosecutor, in his final address, submitted to the jury that the applicant would only have done this had the de facto relationship still been in existence. However, such an inference, if it could be drawn at all, certainly could not be drawn beyond reasonable doubt, particularly having regard to XP’s evidence as to when the fellatio event occurred.
This case appears to have been conducted on the basis that the applicant admitted, or at least did not dispute, that each of the acts of sexual penetration constituting counts 2, 3, 4 and 5 took place and that he denied only that he and XP’s mother were in a de facto relationship during the relevant period. That the trial judge thought this was so is demonstrated by this passage from her charge to the jury:
For Counts 2 through to 5, the prosecution allege that the relevant act of sexual penetration that the accused took part with [XP] is for Counts 2, 3 and 5 that he inserted his penis into her vagina and for Count 4, that he inserted his penis into her mouth and that those acts were intentional and the defence do not dispute that these penetrations did take place and were intentional.
Although the applicant clearly admitted having sexually penetrated XP many times over a considerable period in his record of interview and did not resile from that in his evidence, he made no admissions specifically referable to the alleged acts to which the counts charged related. Indeed, his counsel made it clear in his opening statement that the elements of each charge had to be proved to the jury’s satisfaction beyond reasonable doubt. This submission was undoubtedly correct.[35] Whilst it may be true that the applicant did not dispute that any particular act occurred, the problem created for the Crown by XP’s evidence is that it does not prove a case of incest on counts 3, 4 or 5 and barely proves such an act on count 2. Unfortunate as that may be, in the circumstances of this case, the strictures imposed by the counts upon which the Crown chose to present the applicant, and the failure of the Crown to present evidence capable of proving counts 3, 4 and 5, makes it inevitable that the applicant’s convictions on those counts cannot be permitted to stand. As the Crown gave content to those counts by its submission to the Court on this appeal, and relied upon evidence incapable of supporting those counts, verdicts of acquittal on each of them is the only possible outcome.
[35]Rolfe v The Queen (2007) 173 A Crim R 168, [67] (Giles JA).
Sentence
The applicant having succeeded on his appeal against conviction on three of the four counts upon which he was sentenced, he must be re-sentenced on count 2, the count upon which he was not successful.
Judge Sexton sentenced the applicant to five years’ imprisonment on count 2. It is appropriate that he now be re-sentenced on that count to four years’ imprisonment, in respect of which a non-parole period of two years and nine months should be fixed.
Conclusion
The applicant should be given leave to appeal against conviction, the appeal should be treated as instituted and heard instanter and allowed in part. The convictions sustained by the applicant in the County Court on counts 3, 4 and 5 on the presentment upon which he was tried and the sentences passed thereon should be set aside and a verdict of acquittal entered in respect of each of those counts. The conviction on count 2 should be confirmed. The appeal against sentence in respect of count 2 should be allowed. The sentence of imprisonment imposed below on that count should be set aside and in lieu thereof the applicant should be sentenced to four years’ imprisonment. A new non-parole period of two years and nine months should be fixed.
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