Levett v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0186

LEONARD LEVETT	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2024
DATE OF JUDGMENT:	18 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 243
JUDGMENT APPEALED FROM:	[2023] VCC 1418 (Judge Hassan)

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CRIMINAL LAW – Conviction – Appeal – Rape – Trial by judge alone – Whether conviction unreasonable on basis of insufficient evidence of penetration – Whether judge erred in permitting leading question to be asked when evidence was in dispute – Whether not open to judge to conclude that text message sent by complainant constituted an explicit complaint of rape – Proposed grounds of appeal without merit – Application for leave to appeal refused.

Dansie v The Queen (2022) 274 CLR 651, applied.

Criminal Procedure Act 2009, ss 276(1)(a) and 420F(2).

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Counsel
Applicant:		Mr R Nathwani SC with Ms F Fox
Respondent:		Ms BJ Goding
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
KAYE JA:

Between 1984 and 1986, Megan Gilligan,[1] Ashley Tindale[2] and Jill Coombes[3] were teenage girls, who resided at the Tally Ho Children’s Home in Burwood as Wards of the State. During this period, the applicant was employed there, first as a night watchman, and subsequently as an assistant cottage parent.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
On 8 November 2022, the applicant pleaded guilty in the County Court to one charge of indecently assaulting Ms Gilligan,[4] and two charges of sexually penetrating her when she was between the ages of 10 and 16 and under his care, supervision or authority.[5] The three charges were rolled-up charges: the first encompassing five separate occasions; the second encompassing six penile-oral penetrations; and the third encompassing three penile-vaginal penetrations.
[4]Contrary to s 44 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[5]Contrary to s 48 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On 16 December 2022, following a judge-alone trial in the County Court, the applicant was found guilty of three charges of raping Ms Tindale[6] (charges 5, 6 and 7); and two charges of sexually penetrating Ms Coombes when she was aged between 10 and 16, and under his care, supervision or authority[7] (charges 8 and 9).
[6]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[7]Contrary to s 48 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On 18 August 2023, the trial judge sentenced the applicant in respect of his offending against Ms Gilligan, Ms Tindale and Ms Coombes to a total effective sentence of 13 years’ imprisonment.[8] The judge directed that eight years of this sentence be served cumulatively upon a sentence the applicant was then serving for other offending, making a total effective sentence of 21 years and 6 months’ imprisonment. The judge then set a new global non-parole period of 16 years.[9]
[8]DPP v Levett [2023] VCC 1418, [107] (‘Sentencing Reasons’).
[9]Ibid [110].
The applicant now seeks leave to appeal against conviction. His proposed grounds of appeal are as follows:
1.The verdict on charge 7 is unreasonable on the basis that there is insufficient evidence of penetration.
2.There was a substantial miscarriage of justice, in that the trial judge erred by permitting a leading question by the prosecutor in circumstances where the evidence remained in dispute.
3.There was a substantial miscarriage of justice, in that the learned judge erred in finding that the text message sent to witness Conrau constituted an ‘explicit complaint of rape’.
Proposed grounds 1 and 2 relate to the applicant’s conviction on charge 7 of anally raping Ms Tindale.[10] Proposed ground 3 concerns a text message (‘the text message’) sent by Ms Tindale, on 17 February 2018, to Susan Conrau. Ms Conrau was a cottage parent employed at Tally Ho in 1985 and 1986. In the text message, Ms Tindale said: ‘I’ve been so tired of screaming he is a rapist’.
[10]For completeness, we note that the sentence on charge 7 was five years’ imprisonment, of which 12 months was cumulated on the base sentence (six years imposed on charge 8): Sentencing Reasons [98], [101].

The trial

At trial, the prosecution called Ms Tindale, Ms Coombes, Ms Conrau and the informant, Detective Senior Constable Alexia Biser. The applicant did not give evidence, and no other witnesses were called by either side.
Pursuant to a pre-trial ruling given by the trial judge,[11] the prosecution also relied upon a tendency notice. In brief compass, the prosecution alleged that the applicant had a sexual interest in young females, aged between 14 and 17, generally under his care, supervision or authority as Wards of the State and residents of Tally Ho, and a specific sexual interest in Ms Tindale, Ms Coombes and Ms Gilligan. The prosecution alleged that the applicant had a tendency to act on these sexual interests by, amongst other things, sexually touching the complainants; having them perform oral sex on him; having penile-vaginal sexual intercourse with them; and having penile-anal sexual intercourse with Ms Tindale. The prosecution relied upon an agreed summary of facts to establish the allegations it made against the applicant in respect of Ms Gilligan.
[11]DPP v Levett, unreported, County Court of Victoria, 4 November 2022, Judge Hassan, [22]–[80].
At trial, as well as the five charges on which he was convicted, the applicant faced four additional charges relating to Ms Tindale (charges 1 to 4): two charges of indecently assaulting her when she was under the age of 16;[12] and two charges of sexually penetrating her when she was aged between 10 and 16, and under his care, supervision or authority.[13]
[12]Contrary to s 44 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[13]Contrary to s 48 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
At the conclusion of the prosecution case, the judge directed that the applicant had no case to answer on charges 1 to 4. In respect of those charges, the judge said that she could not be satisfied beyond reasonable doubt that Ms Tindale was under the age of 16 at the time those offences were allegedly committed. Accordingly, the judge directed acquittals on those charges. Her Honour, however, ruled that the evidence ‘remained within [her] contemplation as uncharged conduct and as tendency evidence’.[14]
[14]DPP v Levett, unreported, County Court of Victoria, 16 December 2022, Judge Hassan, [247] (‘Conviction Reasons’), wherein her Honour noted that ‘neither party took objection to this approach’.
Given the acquittals on charges 1 to 4, and the relatively confined terms of the proposed grounds of appeal, it is not necessary for us to summarise in detail all of the evidence given at trial. The following summary is sufficient for present purposes.

Evidence of Ms Tindale

Ms Tindale gave evidence that, within weeks of her arrival at Tally Ho, the applicant started coming into her bedroom and giving her massages which involved rubbing her shoulder and back over her nightie. Ms Tindale described these as gentle massages, which the applicant gave her at night in her bed. She said, however, that at some point, this changed when the applicant pulled up her nightie and pulled down her underwear. Ms Tindale gave evidence that the applicant pushed her legs together, lay on top of her with his penis out of his pants, and rubbed his erect penis against her vagina until he ejaculated (charge 1).
In relation to charges 2 to 4, Ms Tindale gave evidence that these occurred when she drove with the applicant to a bread shop which donated its leftover bread to Tally Ho at the end of each day. Ms Tindale’s evidence was that the first of the bread run incidents occurred while she and the applicant were driving to the bread shop. The applicant took Ms Tindale’s hand and moved it up and down along his penis until he ejaculated (charge 2). Ms Driscoll gave evidence of other occasions, when they were on a bread run, where the applicant pushed her head down to his penis and inserted it into her mouth for her to suck (charges 3 and 4).
In respect of charge 5, Ms Tindale gave evidence that, when she was 15 or 16, the applicant took her from her bed at Tally Ho to a bathroom. The applicant did not have any clothes on. When they got to the bathroom, the applicant pulled her nightie up over her head and pulled her underwear down. He then guided her towards the bath. She gave evidence that she slipped and hurt her knee, before saying:
And I remember feeling Lenny’s [the applicant’s] arms pushing down really hard on the top part of my back, not on the bottom, but up the top. And the water was kind of running on my lower part of my back, and Lenny put his penis in my anus at that point.
In her evidence, during the course of describing the applicant guiding her into the bath, Ms Tindale said that the applicant ‘anally raped me’. When asked how long the anal penetration continued for, she said, ‘It could’ve been five minutes; it felt like five hours’.
Ms Tindale was then asked whether she had a specific memory about a second occasion. She replied that she did, in the same bathroom. She said:
After that first time when that happened with Lenny, after that I worked out a way of the next time, like, pretending it wasn’t happening. And I would look at the tiles. It was like — they were matched like bricks. They were like brickwork, like on top of each other, but they were old and cracked. And I remember there was a lot of … grout. The grout pieces were missing in lots of places.
When asked specifically what the applicant did on the second occasion in the bathroom (charge 6), Ms Tindale said: ‘He put his penis in my anus’ and ‘He penetrated me’. Ms Tindale gave evidence that she ‘guessed’ that this took a few minutes, although it felt like a long time.
Ms Tindale was then asked and answered the following question about whether there was a third occasion (charge 7). Specifically, she gave the following answer to the following question:
Now, you’ve given … evidence of a second time. Was there a third time? ---Um, there was another time when I had my period and I thought that I was gonna get pregnant by being penetrated in my anus, and I was frightened of that because I didn’t really understand that ah, sperm wasn’t gonna make me pregnant that way.
When asked about when this occurred, Ms Tindale said, ‘Again when I was 15/16 and it was like while Lenny was the, he became the cottage parent’. When asked where it occurred, she said, ‘In the staff bathroom’.
Ms Tindale was then asked whether she could recall, ‘without specifics, … that activity of Lenny on you happening again’. She said ‘Yes’; and when asked how often this occurred, Ms Tindale said that she ‘estimate[d] maybe about 10 times’.
A little later in her evidence-in-chief, Ms Tindale was asked and answered the following questions:
[Ms Tindale] you have given evidence about in the bathroom being anally penetrated the first time?---Yes.
Did you give consent to that activity to happen?---No.
You have given evidence about being anally penetrated the second time in the bathroom?---Yes.
Did you give consent to that activity to happen?---No.
You have given evidence about that happening again a third time in the bathroom, that is anal penetration. Did you give consent to that activity happening?
[DEFENCE COUNSEL]: Your Honour?---No.
HER HONOUR: Yes [Counsel]?
[DEFENCE COUNSEL]: I object to the final question but I don’t think in evidence the witness gave evidence that she was anally penetrated on what was put to her as the third occasion.
There was then discussion between counsel and the judge about defence counsel’s objection. Defence counsel contended that Ms Tindale had not given any evidence that she had been penetrated on the third occasion. The judge ruled against the objection, stating that the evidence set out at [18] above established penetration. As the judge put it:
She [Ms Tindale] is saying that she was, in her state of knowledge at that time she actually thought she could get pregnant by anal penetration. It establishes penetration.
Following that ruling, the prosecutor asked Ms Tindale another question, and Ms Tindale replied, as follows:
[Ms Tindale] you have given evidence about a third time you were anally penetrated in the bathroom. Did you give your consent for that activity to occur?---No I did not.
It is that question and answer which is the subject of proposed ground 2.
In cross-examination, defence counsel put to Ms Tindale that none of the alleged anal rapes occurred. In the course of that cross-examination, Ms Tindale gave the following answers to the following questions:
You gave evidence again of something that you described as an anal rape in a bathroom and I’m suggesting to you that that didn’t happen?---That did happen.
And that there was no further incident of anal rape when you were menstruating or otherwise?---That was when I thought I might get pregnant and I was frightened. That did (recording malfunction).
I’m sorry, [Ms Tindale], you just cut out there. Would you mind repeating that answer?---That was the time when I was frightened that I would get pregnant because I didn’t understand that I would not get pregnant having my period and being anally raped. That did happen and I was frightened.[15]

Evidence of Ms Coombes

[15]Emphasis added.

Because Ms Coombes suffers from a cognitive impairment, her evidence was adduced by way of video and audio recorded evidence (VARE) and special hearing. In summary, her evidence was of an incident that occurred after she had gone to sleep in her room at Tally Ho. She said that, on the night in question, she was woken by the applicant entering her room. She said that he then took her to a small empty room in a church on the village grounds. Her evidence was that, in that room, the applicant pushed her head down to put her mouth onto his penis (charge 8); and later inserted his penis into her vagina and moved it in and out until he ejaculated (charge 9).

Evidence of Ms Conrau

Ms Conrau gave evidence that she began working at Tally Ho in 1985 as a ‘residential care worker, supervisor/cottage parent’. She gave evidence about hearing, in approximately 2017, about allegations stemming from Tally Ho; and hearing from Ms Tindale via Facebook. During the course of her evidence, Ms Conrau read into evidence Facebook messages from Ms Tindale. These were tendered as Exhibit E. They contain references to the applicant and sexual abuse, including the text message. The last page of Exhibit E (containing the text message) was as follows:
And Lenny sexual used singing and ganging up with the boys ...

Shit … They hired the likes of Lenny … Who just happened to rent a place on the village and fuck the staff and kids
…
I’ve been so tired of screaming he is a rapist

Decision of the trial judge

As we have already said, while the trial judge directed that the applicant be acquitted of charges 1 to 4, she convicted him on charges 5 to 9.
In relation to charge 7 (referred to by the judge as the third occasion on which the applicant was alleged to have anally penetrated Ms Tindale), the judge observed that, in the course of Ms Tindale’s evidence, the applicant’s trial counsel ‘raised whether the element of penetration had been made out in respect of [that] occasion’.[16] Noting that ‘no ruling was sought by the defence’,[17] the judge said:
[Ms Tindale’s] evidence of penetration on this occasion was that she had her period but was still worried that she could get pregnant. My view was that the evidence when viewed in context of the totality of her evidence was evidence of a third occasion of anal penetration.[18]
[16]Conviction Reasons, [355].
[17]Ibid.
[18]Ibid.
The judge said that she therefore proceeded on the basis that Ms Tindale’s evidence, if accepted by her beyond reasonable doubt, satisfied the four elements of the offence of rape constituting charge 7, namely: (i) the accused sexually penetrated Ms Tindale in the way alleged; (ii) he did so intentionally; (iii) Ms Tindale did not consent to the sexual penetration; and (iv) the accused was aware either that Ms Tindale was not consenting, or that she might not be consenting.[19]
[19]Ibid [355]–[356].
In relation to the text message, the judge said that Ms Tindale said, in her conversations with Ms Conrau, referring to the applicant, ‘I’m so tired of saying he is a rapist’. The judge said that this was ‘an explicit complaint of rape to Ms Conrau’.[20] The judge then said:
In my view, the evidence of complaint on her part is supportive of her credit and in respect of her evidence on the charges on the indictment and is supportive of the occurrence of these incidents.[21]
[20]Ibid [380].
[21]Ibid [382].
Ultimately, the judge concluded that Ms Tindale was both an honest and reliable witness, and that her evidence in support of charges 5, 6 and 7 was ‘truthful and not a dishonest or unsafe reconstruction’.[22] Accordingly, her Honour found the applicant guilty of charges 5, 6 and 7.[23]
[22]Ibid [383].
[23]Ibid [384].
Similarly, the judge found that Ms Coombes’ evidence of the oral and vaginal penetrations of her satisfied all of the elements of charges 8 and 9, and that Ms Coombes had given credible and reliable evidence. The judge therefore found the applicant guilty of charges 8 and 9.[24]
[24]Ibid [404]–[407].

Applicant’s submissions

Under proposed ground 1, the applicant submitted that the evidence given by Ms Tindale on charge 7 could be contrasted with the evidence given on charges 5 and 6. The contrast was between Ms Tindale’s evidence on charges 5 and 6, which ‘clearly describe the action that is said to constitute the actus reus of the rape’; whereas, in respect of charge 7, it was submitted that there was no evidence of the object which was used to penetrate Ms Tindale. The applicant submitted that, in the circumstances, it was simply not open for the judge to find that penetration did in fact occur.
Under proposed ground 2, the applicant submitted that the judge formed a concluded view that penetration had occurred before Ms Tindale was asked (after defence counsel’s objection) about whether she consented to the penetration. Proposed ground 2 was submitted to be ‘an alternative and/or expansion of [proposed] ground 1’.
It was then submitted by the applicant that ‘such a concluded view as to the element of the offence, informed her Honour’s decision to permit the prosecutor to positively put (that is, by way of leading question) that the applicant had anally penetrated Ms Tindale’. The applicant submitted that, in the circumstances, there was no permissible basis upon which the prosecutor could have been allowed to ask the leading question which was asked after the judge rejected defence counsel’s objection.
Under proposed ground 3, the applicant submitted that the text message, ‘on its face, does not rise to the status of a complaint made by Ms Tindale to Ms Conrau that the applicant raped her’. The applicant submitted that such an inference, without more, could not be drawn.

Proposed grounds 1 and 2: consideration

By reason of s 420F(2) of the Criminal Procedure Act 2009,[25] each of the judge’s verdicts of guilty ‘has, for all purposes, the same effect as a verdict of a jury’. Proposed ground 1 is based upon s 276(1)(a) of the Criminal Procedure Act, which provides that this Court must allow an appeal if it is satisfied that the verdict in question is ‘unreasonable or cannot be supported having regard to the evidence’.
[25]As amended by s 3 of the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022.

Turning to the specific complaint the applicant makes under proposed ground 1 in relation to his conviction on charge 7, s 276(1)(a) requires the court to ask itself whether it thinks, on the whole of the evidence, the conclusion that the applicant was guilty beyond reasonable doubt was open.[26] In determining that question, this Court must undertake an independent assessment of the whole of the evidence as to its sufficiency and its quality.[27] Moreover, in performing this function, the reasons of the trial judge must be approached with circumspection — lest the findings of fact made by the trial judge divert this Court from undertaking the requisite independent assessment of the evidence.[28]
[26]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie v The Queen (2022) 274 CLR 651, 657–658 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’).
[27]Morris v The Queen (1987) 163 CLR 454, 473 (Deane, Toohey and Gaudron JJ); Dansie (2022) 274 CLR 651, 659–660 [12].
[28]Dansie (2022) 274 CLR 651, 661 [16].
Having undertaken that task, we are of the view that there is no substance in proposed ground 1. While it is true that, in her evidence-in-chief about the circumstances of charge 7, Ms Tindale did not say in express terms that the applicant penetrated her anus with his penis, it is plain from the questions and answers she gave about the circumstances of charge 7, and the context in which she gave those answers, that that was her evidence.
Specifically, in her evidence-in-chief, after she gave evidence of the first time that the applicant had anally penetrated her, the prosecutor said, ‘That was the first time. Was there a second time?’. Ms Tindale replied ‘Yes’, and then described this ‘second time’ (charge 6). Having done so, the prosecutor said, ‘You’ve given evidence of a second time. Was there a third time?’, to which Ms Tindale replied ‘There was another time when I had my period and I thought I was gonna get pregnant by being penetrated in my anus, and I was frightened of that because I didn’t really understand that sperm wasn’t going to make me pregnant that way’.[29] And, as we have already noted, when asked in evidence-in-chief where this ‘third time’ happened, Ms Tindale said ‘In the staff bathroom’.
[29]Emphasis added.
It was thus well open to the judge, as the trier of fact, to conclude that Ms Tindale, in response to being asked whether there was a third time, responding that there was ‘another time’ when she had her period and she thought she was going to get pregnant by being penetrated in her anus, was evidence of a third occasion when the applicant penetrated Ms Tindale’s anus with his penis.
That said, the issue was put beyond doubt in the cross-examination which we have set out at [24] above. In that part of her evidence, in response to defence counsel putting that ‘there was no further incident of anal rape when you were menstruating or otherwise’, Ms Tindale said in express terms that she was anally raped on the occasion she was menstruating.
Similarly, the submission by the applicant that there was no evidence of the object which was used to penetrate Ms Tindale on this third occasion cannot be accepted. Even if one only considered Ms Tindale’s evidence-in-chief, it was well open to the judge (again, as the trier of fact) to conclude that Ms Tindale’s evidence was that she was afraid of becoming pregnant, on this third occasion, necessarily means that the applicant penetrated her with his penis. When also considered in combination with Ms Tindale’s earlier evidence-in-chief, the judge was well entitled to find that Ms Tindale was describing ‘another [third] time’ when penile penetration occurred. Again, however, if there was any doubt (and in our view there was not), the issue was put beyond doubt in that part of the cross-examination of Ms Tindale to which we have referred.
Proposed ground 1 is thus without substance and must be rejected.
The premise for proposed ground 2 is that the initial evidence-in-chief of Ms Tindale (before she was asked whether she consented to being anally penetrated) was insufficient to prove penetration in respect of charge 7 and, to the extent that penetration was established by Ms Tindale’s answer to the consent question which was objected to by defence counsel, that question was a leading question. For the reasons given above, however, that premise is false: Ms Tindale had already given evidence, capable of being accepted by the trier of fact, of the penetration alleged in charge 7.
It follows that proposed ground 2 must also be rejected.

Proposed ground 3: consideration

The issue raised by proposed ground 3 is whether the text message, in the context of the evidence led at trial (including the other Facebook messages from Ms Tindale to Ms Conrau), was capable of being regarded by the trier of fact as a complaint made by Ms Tindale to Ms Conrau that the applicant had raped her.
The Facebook messages from Ms Tindale to Ms Conrau contain multiple references to ‘Lenny’. The messages include a statement by Ms Tindale to Ms Conrau that a lawyer would contact her soon. That statement is made in a message which referred to it being ‘widely known that Lenny liked touching us girls up’. It was undoubtedly open to the trier of fact (the judge) to conclude that Ms Tindale’s references to Lenny in her messages were references to the applicant; Lenny was a rapist at Tally Ho; and that Ms Tindale (being one of ‘us girls’) was one of his victims.
In short, there is no substance in the applicant’s assertion that the text message (when viewed in context) was incapable of amounting to a complaint by Ms Tindale to Ms Conrau that the applicant had raped her.
It follows that proposed ground 3 must be rejected.

Conclusion

The applicant’s application for leave to appeal against conviction must be refused.
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[2024] VSCA 243

18 October 2024