Li v The Queen
[2011] VSCA 183
•24 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0860
| FENG LI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG, BONGIORNO and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 May 2011 |
| DATE OF JUDGMENT | 24 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 183 |
| JUDGMENT APPEALED FROM | R v Li (Unreported, County Court of Victoria, Judge Duggan, 8 October 2009) |
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CRIMINAL LAW – Application for leave to appeal – Conviction – Indecent assault – Consent – Attempt to kiss formed basis of charge in Crown opening – Evidence given of other acts that could form basis of charge – Jury invited to consider all circumstances surrounding attempted kiss as going to indecent act alleged – Whether Crown needed to elect which incident gave rise to charge – Whether judge erred in directing jury that whole incident was basis of charge – Whether judge required to direct that jury be unanimous about which incident gave rise to charge – Whether Crown impermissibly changed case – Whether verdict unsafe and unsatisfactory – Leave refused
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Michael Gleeson & Associates |
| For the Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The applicant, Feng Li, was presented in the County Court at Melbourne on one count of indecent assault and one count of assault with intent to rape. He was convicted on the first of those two counts, and acquitted on the second.
The applicant now seeks leave to appeal against conviction.
The background facts briefly were these. The applicant was born in China. He came to this country in August 2006. He enrolled in various courses at RMIT and had done very well as a student.
The applicant became acquainted, over an internet chat site, with a young woman, ‘LW’. LW had also been born in China, and was also a student in Australia.
The offence in question was alleged to have been committed on 20 February 2007. On that day, LW contacted the applicant and suggested that they have dinner. He agreed, and invited her to his home. He told her that he would prepare dinner for them both.
The applicant collected LW and drove her to his house which he shared with several other students. LW waited in the applicant’s bedroom while the applicant went into the kitchen to prepare dinner. While he was in the kitchen, LW used the applicant’s computer. She was seated on the floor at the time. The applicant returned to the bedroom and they ate the meal that he had cooked.
After they had eaten, the applicant made sexual overtures towards LW. Her evidence was that, right from the outset, she made it clear to him that his advances were unwelcome. Nonetheless, according to her, he persisted.
LW said that the applicant tried to grab her hand. He then got up, grabbed her under the knees and behind her neck, and lifted her up onto his bed. She said that when she went to get up the applicant pushed her back down onto the bed. She said that the applicant tried to kiss her.
In her original statement to the police, LW said that the applicant, all the while, had his hands on either side of her face while she moved her head from side to side in order to avoid being kissed. The Crown, in its opening to the jury, described this act of attempting to kiss LW as ‘the basis’ of the indecent assault alleged against the applicant.
LW went on to tell the police that after the attempted kiss, the applicant had tried to touch her on the left breast. She said that she had pushed him away. She claimed that he kept trying to touch her, despite her having yelled out a number of times, ‘No’. She told the police that the applicant had then pulled down her shorts and attempted to remove her underwear. She said that she had struggled with him, and repeated the word ‘No’ several more times. She claimed that the applicant had used both hands to prevent her from struggling and, at one stage, put a pillow over her head. She also said that she had screamed ‘I don’t want it’. Eventually, the applicant gave up trying to have sex with her. LW then got dressed, and left the premises. Shortly afterwards she told the police what had occurred. The Crown, in its opening, described these acts as the basis of the assault with intent to rape.
The applicant was interviewed by the police almost a week later, on 26 February 2007. He said that he and LW had kissed. He said that he had lifted her up onto his bed. He admitted having tried to remove her shorts.[1] He claimed that, at that point, LW had asked him how much money he had. Then, she got up off the bed and said that she wanted to leave, the inference being that she did not receive a satisfactory answer.
[1]The applicant told the police later in the record of interview that he had, in fact, removed LW’s shorts.
The applicant said that having ascertained that LW did not want to have sex with him, he did not press her any further. He told the police that everything that had occurred up to that point had been fully consensual.
Counsel for the applicant, in his opening statement to the jury, made it clear that the defence would be one of consent. In relation to the indecent assault, he asserted baldly that an attempt by a young man to kiss a young girl could not be regarded as ‘indecent’. As regards the allegation of assault with intent to rape, counsel submitted that the applicant had stopped whatever he had been doing once it became clear to him that LW was not interested in having sex with him, and asked rhetorically, if the applicant intended to rape LW ‘why didn’t he’?
When LW came to give evidence before the jury, her account differed somewhat from that which she had earlier given to the police. She said that after the applicant had pushed her back onto the bed, she struggled to free herself. She said that he then lay on top of her, and that one of his hands was ‘trying to touch my breast’. She said that she told him loudly that if he continued touching her, she would call the police. She said that at this time he was moving his hands about her body. Her actual words were:
His hands were either side of me and still just touching like my bottom and my upper body.
She added that this was occurring at the time that the applicant was ‘trying to kiss me’.
In the Crown’s closing address, the prosecutor, having previously identified the attempted kiss as the basis of the indecent assault, shifted ground somewhat. The prosecutor now included the ‘touching [of] her bottom and upper body’ as part of the evidence that went to make up the circumstances that gave rise to the indecent assault. The prosecutor specifically invited the jury to consider ‘all of the circumstances combined with the attempt to kiss her’ as constituting that offence. Those ‘circumstances’ were said to demonstrate not merely that LW had not consented, but also that what occurred should relevantly be described as indecent.
Counsel for the applicant in his closing address attempted to restore the allegation of indecent assault to the attempted kiss, and nothing more. He invited the jury to conclude that even if the applicant had pushed LW back onto the bed, and attempted to kiss her, this did not amount to an indecent assault.
The judge, in his charge to the jury, referred to the elements of indecent assault. He told the jury that the Crown had to establish that what took place was relevantly an indecent act. He reminded them that LW had alleged that there had been a ‘touching of the bottom’, as well as an ‘attempt to kiss’, and referred to what he described as her allegation that the applicant had touched her breast. He told the jury that it was a matter for them as to whether, if her evidence was accepted, this gave rise to circumstances of indecency.
Counsel for the applicant took exception to his Honour’s charge. He pointed out that LW had conceded, in cross-examination, that the applicant had merely tried to touch her breast, but had not succeeded in doing so. To that extent, the reference to there having been a ‘touching of the breast’ was a misstatement of the evidence. The judge replied that he had reminded the jury of that passage from LW’s cross-examination, and did not consider it necessary to go over the matter again.
Counsel for the applicant also objected to his Honour having left to the jury, for their consideration, LW’s evidence that the applicant had touched her on the bottom as being part of the indecent act alleged. The judge said that he regarded the differences between LW’s account to the police, which formed the basis of the Crown opening, and the evidence she gave to the jury, as being ‘immaterial in the context of this case’.
Grounds of appeal
The applicant now contends that the judge erred in failing to require the Crown to elect which incident (the attempted kiss, the alleged touching of the bottom, or the alleged touching of the breast) gave rise to the charge of indecent assault. He further contends that his Honour erred in directing the jury, as he did, that ‘the whole of that incident’ was the basis for the count of indecent assault. He also submits that the judge ought to have directed the jury that they had to be unanimous as to which of the ‘three incidents’ gave rise to the indecent assault, and that his Honour’s failure to have done so meant the jury’s verdict was uncertain. Finally, but essentially in the same vein, the applicant argues that the trial miscarried because the Crown changed its case in relation to the count of indecent assault.
Conclusion
In my opinion, each of the applicant’s submissions should be rejected. This was a relatively straightforward and simple trial. There was, in truth, only one issue to be resolved. That was consent. LW claimed that she made it perfectly clear, almost from the outset, that she did not want to have sex with the applicant. The applicant, on the other hand, claimed that LW was - up to the point at which she asked about how much money he had - perfectly willing to engage in sexual activity with him.
The applicant’s contention that the indecent assault had to be dissected and divided into three separate components seems to me to be quite unreal. LW’s evidence was that the attempted kiss, the attempted touching of her breast, and the touching of her bottom were all part and parcel of one series of actions, and that these took place at the same time. There were not three separate acts, any one of which could have been the subject of a count of indecent assault. It was, right from the very outset of the trial, the attempted kiss that formed the basis of that count.
It is true that LW’s evidence appears to have embellished the circumstances under which that attempted kiss took place. There is nothing particularly unusual about a witness departing from his or her initial statement, and giving a different account to that which the Crown, having relied upon that statement, had opened to the jury. None of this made any real difference to the issue of consent, which was the one key question that had to be resolved.
That is not to say that his Honour’s charge was free from criticism. It would have been better had his Honour told the jury in clear and simple terms that the count of indecent assault was based solely upon LW’s allegation that the applicant had attempted to kiss her. He could then have instructed them that, in considering whether this attempted kiss took place in circumstances of indecency, they could have regard to the evidence that LW gave about the circumstances surrounding this event. This would include the applicant’s having pushed her back onto the bed, his having tried to touch her breast, and his touching of her bottom.
The applicant sought to rely upon the principle laid down in cases such as R v Trotter.[2] The facts in Trotter were, however, quite different from those in the present case. There, the complainant, a young boy, gave evidence of an indecent assault that he claimed took place whilst he was lying on a bed watching television. In re-examination, the boy also mentioned an earlier incident in which the applicant, Trotter, had committed an indecent assault while assisting him to dry himself after taking a bath. This was the first time the complainant had ever mentioned that earlier incident. Trotter was convicted of, inter alia, indecent assault.
[2](1982) 7 A Crim R 8 (‘Trotter’). See also R v Walsh (2002) 131 A Crim R 299; R v Rigoli [2006] VSCA 1 and, in particular, the discussion of latent duplicity in S v R (1989) 168 CLR 266.
The Court of Criminal Appeal allowed the appeal against conviction and ordered a re-trial. It held that the conviction of indecent assault was uncertain, and that there had therefore been a miscarriage of justice. The vice was that the prosecutor had not been required to specify which of the two incidents was the indecent assault that was the subject of the charge. Whilst it was clear that the jury must have been unanimous that the applicant had committed an indecent assault, it was impossible to know whether there had been unanimity in respect of one or other of the two acts, either of which was capable of amounting to an indecent assault.
In the present case, there was only ever one act that was relied upon as constituting the indecent assault charged. That act was the attempted kiss. The Crown did not, at any stage, invite the jury to conclude that the offence could be proved even if there was a doubt about whether there had been an attempted kiss, non consensually, on the basis that there had at least been an attempt to touch LW’s breast, or a touching of her bottom. As a matter of practical reality, it is inconceivable that the jury could have entertained a doubt about the attempted kiss,
but been satisfied of the surrounding circumstances.[3]
[3]In that respect, the present case can be reconciled with Trotter on much the same basis as that which commended itself to this Court in R v Goldman [2007] VSCA 25, albeit in the context of a charge of attempted murder where the offence was said to have been committed over some minutes, and at different but closely proximate locations.
It follows that the Crown was not required to ‘elect’ as between the three incidents in question.[4] Nor was the verdict uncertain. Nor was the jury’s verdict to be impugned on the basis that there might not have been unanimity as to the specific act said to have constituted the indecent assault. Nor did the Crown impermissibly change its case.
[4]I should add, for the sake of completeness, that no application was made at trial that the Crown should be required to so elect.
The applicant also alleged that the verdict was unsafe and unsatisfactory. There is no substance to that ground. The jury were entitled to prefer LW’s version of what took place to that put forward by the applicant in his record of interview.
Accordingly, I would refuse leave to appeal.
BONGIORNO JA:
I agree with Weinberg JA.
HARPER JA:
I have had the benefit of reading in draft the judgment of Weinberg JA. I agree with his Honour's conclusion and his reasons for it.
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