M C v The Queen
[2010] VSCA 324
•3 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0079
| MC |
| v |
| THE QUEEN |
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| JUDGES | NEAVE and HARPER JJA and ROSS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 November 2010 |
| DATE OF JUDGMENT | 3 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 324 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Duggan, 19 March 2010) |
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CRIMINAL LAW – Conviction – Sentence – Sexual penetration of a child under the age of 16 years – Verdict reasonably open – Crown concession – Failure to make Zoneff and Grech directions – Miscarriage of justice – Application granted and appeal allowed – Conviction quashed – New trial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr G M Hughan | Ambi Associates |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the judgment of Ross AJA in draft form. For the reasons given by his Honour, I would grant leave to appeal against conviction, allow the appeal and order a new trial.
HARPER JA:
I agree.
ROSS AJA:
On 23 February 2010 the applicant, MC, was convicted by majority verdict of one count of sexual penetration of a child under the age of 16 years. At the time of the offending the complainant was aged 14 and the applicant was 36 years of age. The penetration occurred in the context of an ongoing relationship between the complainant and the applicant.
Following a plea, the applicant was sentenced to two years imprisonment, with a one year non-parole period.
The applicant appeals against conviction and sentence. For reasons which will become apparent it is only necessary to deal with the grounds advanced in support of the conviction appeal.
The first ground of the appeal against conviction is that it was not reasonably open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt. The question which this Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied, beyond reasonable doubt, that the accused was guilty.[1] This is a question of fact.[2]
[1]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); affirmed in R v Nguyen [2010] HCA 38.
[2]R v Nguyen [2010] HCA 38, [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).
A guilty verdict is reasonably open to a jury if no aspect of the evidence obliged – as distinct from entitled – the jury to come to a different conclusion. As Hayne J (with whom Gleeson CJ and Heydon J agreed) observed in Libke v The Queen:
But the question for an appellate court is whether it was open to the jury to be satisfied beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[3] [citations omitted]
[3](2007) 230 CLR 599, [113].
This trial in this matter was essentially about the determination of a single issue: whether the jury was satisfied beyond reasonable doubt that an act of sexual penetration had occurred. The determination of that issue turned on the complainant’s evidence.
The applicant submits that there are ‘solid obstacles to reaching a conclusion of guilt beyond reasonable doubt’. The applicant’s written submission points to a number of aspects of the evidence which are said to support this contention and it is convenient to deal with each of these in turn. In the discussion which follows the bold text sets out the points advanced by the applicant at paragraph three of his written submissions.
(a) Phone records, showing a text message from the Applicant to the complainant at 3.22.42 am on 28/6/09 and her call to him almost immediately after, at 3.23.21am.
(b) Her acceptance in cross-examination that they never texted each other ‘while sitting next to him’.
The complainant’s evidence is that the offence took place in the applicant’s house at 4 or 4.30 am on a Sunday, which may have been on 28 June 2009. The telephone records show that at 3.22 am on the morning in question a text message was sent from the applicant’s phone to the complainant’s phone and then a brief (18 second) telephone call was made from the complainant’s phone to the applicant’s phone at 3.23 am. The evidence does not show the text message content, nor the contents of the telephone call or the reason it was made.
The complainant also gave evidence that she and the applicant never texted each other ‘while sitting next to him’, the relevant exchange is set out below:
COUNSEL:Did you ever text Roy when you were with him?
COMPLAINANT: What do you mean?
COUNSEL:Well, when you were actually physically with him did you ever text him?
COMPLAINANT: I’m not sure what you mean.
COUNSEL:When you were with Roy, sitting next to him, did you ever text each other?
COMPLAINANT: No.
COUNSEL:Never?
COMPLAINANT: Not while I was sitting next to him.
Counsel for the applicant submitted that the text/telephone call and the complainant’s evidence that they did not text when sitting next to each other, juxtaposed with the complainant’s evidence that the offending took place at 4 or 4.30 am on the same morning, present an insuperable obstacle to a finding of guilt. In other words the complainant’s evidence that she and the applicant never texted each other while sitting together led to the conclusion that they were not together at 3.22 am on Sunday 28 June 2009, which is shortly before the complainant says the offending took place. This aspect of the evidence was said to be the high point of this ground of appeal.
I do not find this submission persuasive. The evidence in question may have entitled the jury to come to a different conclusion, but I am not persuaded that it obliged them to do so. The submitted inconsistency is reconcilable on at least two bases. The first is that the complainant’s evidence – that she and the applicant would never text each other while they were sitting next to each other – is not inconsistent with the complainant and the applicant being in separate parts of the applicant’s house and texting each other. Significantly the complainant was not asked if the applicant ever texted her when she was in his house with him.
Another explanation is that the offending took place early in the morning of Saturday 27 June 2009 and not on the following day. This would be consistent with the evidence of the complainant’s sister who said that there was only one occasion when she took the complainant to the applicant’s house, the complainant stayed overnight and she picked her up the next morning. According to her account she most probably took the complainant to the applicant’s house on Friday 26 June 2009. If the evidence of the complainant’s sister is accepted (and by implication the complainant’s evidence on this point rejected) any incongruity between the 3.22 am text and the 3.23 am telephone call and the offending does not arise. On Friday 26 June 2009 the last text message from the complainant to the applicant was sent at 11.34 pm and the next message was sent at 8.43 am the following morning.
The fact that the offending may have occurred on 27 June 2009, as opposed to the date set out in the presentment (28 June 2009) is of no great moment in the context of this matter. As the trial judge made clear, the specification of the date in the charge is merely a particular, it is not an element of the offence. No exception was taken to this part of his Honour’s charge and there is no ground of appeal in respect of this issue.
As a general proposition a date specified in a presentment is not a material matter unless it is an essential part of the alleged offence[4] or there is a risk that the accused has been misled as to the allegation to be answered or would be prejudiced in having to answer a less specific allegation.[5] No such complaint is made here. An accused may be convicted although the jury finds that the offence was committed on a day other than the day specified in the presentment.[6]
(c) In the letter handed to her father on 1/7/09 the complainant wrote that the applicant ‘hadn’t touched her in the wrong fashion at all’ or ‘in a wrong place’.
[4]For example where an essential element of the offence charged related to the age of the victim: R v Radcliffe [1990] Crim LR 524.
[5]R v Robson [1992] Crim LR 655.
[6]R v Dossi (1918) 13 Cr App R 158; see generally Archbold, Criminal Pleading, Evidence and Practice (2010) 1-131 and following.
(d) Complainant’s evidence that vagina is a ‘wrong place’.
(e) Inconsistent statement in letter handed to father can be used both as to credit of complainant and as truth of the assertion contained therein – Evidence Act 2008 ss 43 & 60. (NB also no directions given about this matter).
On 1 July 2009 the complainant handed her father a letter in which she expressed an intention to run away with the applicant. That letter also included an assertion that the applicant had never touched the complainant in a ‘wrong place’; by which the complainant meant that the applicant had never touched her breasts or vagina. The letter is said to be a prior inconsistent statement by the complainant.
I am not persuaded that these matters support a conclusion that it was not open to the jury to be satisfied, beyond reasonable doubt, as to the applicant’s guilt. During cross-examination the complainant provided a plausible explanation for the conflict between her evidence and her letter of 1 July 2009.
COUNSEL:Was it the truth or was it a lie when you told your parents or your father that he had never touched you in a wrong place?
COMPLAINANT: A lie.
COUNSEL:Why did you tell your father a lie on that occasion?
COMPLAINANT: Because I knew if I told him the truth he would have got angry and it would have made it worse.
It was open to the jury to accept the complainant’s evidence in respect of this issue.
(f) No evidence called from person whom complainant said was the first person to whom she complained of the offence.
In her evidence the complainant said that Anita was the first person to whom she complained of the offence. Anita was the complainant’s ‘best friend at school’. The complainant says that on the night of Sunday 28 June 2009 she told Anita, by MSN, that she had sex with the applicant.
The applicant seeks to rely on the Crown’s failure to call Anita to support a Jones v Dunkel[7] inference that Anita’s evidence would not have assisted the prosecution’s case. I note that no such submission was made at trial and no direction was sought as to this issue.
[7](1958 – 1959) 101 CLR 298.
As a general proposition a Jones v Dunkel direction should not be given in a criminal trial, absent exceptional circumstances.[8] I am not persuaded that such a direction would have been warranted in the circumstances of this matter. But even if I am wrong I am not persuaded that the failure to give such a direction makes the verdict unsafe. For completeness I also note that it is the unexplained failure to call a witness that may give rise to the inference. The rule has no application if the failure is explained, for example by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or other unavailability, or by loss of memory or refusal to waive privilege.[9] Because this issue was not raised at trial we do not have the benefit of any Crown submissions as to why Anita was not called. But one answer may be inferred from the complainant’s evidence when she said that Anita had ‘left’.[10]
(g) Complaint to mother made only after complainant was asked ‘if I had sex with him’ and told by mother, ‘if you lie to me I’ll take you to the doctor’.
[8]Dyers v The Queen (2002) 210 CLR 285.
[9]Jones v Dunkel (1958-59) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191, 202 (Glass JA); Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd (2002) 40 ACSR 619, [65] (Austin J). An explanation was found where the witness had departed from the employment of the party and was travelling abroad: Pacific Publications Pty Ltd v Next Publishing Pty Ltd (2005) 222 ALR 127, [111] (Tamberlin J).
[10]p21
During the VATE interview the complainant was asked when she told her parents that she had sex with the applicant and she replied in the following terms:
That, that morning on the 2nd of July, I was laying in bed still ‘cause I, and my mum came in and she asked me if I had had sex with him and she was like, if you lie to me, I’ll take you to the doctor, and I told her I did and that, that’s when they found out, my parents.’
The complainant was also cross examined about this issue:
COUNSEL:When you were in bed, your mother threatened you with: if you didn’t tell her what had happened between you and [the applicant], that she was going to take you to the doctor; is that right?
COMPLAINANT: Yes.
COUNSEL:Did she tell you also that a doctor would be able to tell if you had had sex or not?
COMPLAINANT: No.
COUNSEL:Did you believe that a doctor would be able to tell if you had had sex or not?
COMPLAINANT: Yes.
COUNSEL:By telling your mother that you had had sex, she wasn’t going to take you to the doctor, was she?
COMPLAINANT: No, she wasn’t.
COUNSEL:But she still did, didn’t she?
COMPLAINANT: Yes.
…
COUNSEL:When your mother takes you to the doctor … I will go back. Your mother threatened that if you didn’t tell her the truth that you had had sex with [the applicant], she would take you to the doctor, didn’t she?
COMPLAINANT: Yes.
COUNSEL:And so you said yes, you had had sex with [the applicant]?
COMPLAINANT: Yes.
COUNSEL:You didn’t tell her what you had done with [the applicant], did you?
COMPLAINANT: No.
COUNSEL:And we have already established that you believed that if you had gone to the doctor, a doctor would be able to tell if you had had sex or not?
COMPLAINANT: Yes.
COUNSEL:Did you think that by agreeing with your mother that you had had sex you would not have to show to a doctor that you had not had sex?
COMPLAINANT: No, she took me to the doctor to get tested for STDs and STIs.
COUNSEL:She took you to the doctor to have you tested for what?
COMPLAINANT: Sexually transmitted diseases and infections.
COUNSEL:So you knew all about that at Year 9, didn’t you?
COMPLAINANT: Yes.
COUNSEL:And indeed you were tested for HIV?
COMPLAINANT: Yes.
COUNSEL:And you were tested for pregnancy?
COMPLAINANT: Yes.
I am not persuaded that any of this evidence supports a conclusion that it was not open to the jury to be satisfied, beyond reasonable doubt, as to the applicant’s guilt. Indeed on one view of it this evidence can be said to support a finding of guilt. The complainant’s evidence was that she believed that a doctor would be able to tell that she had had sex. Threatened with the prospect of being taken to a doctor the complainant chose to tell her mother that she had had sex with the applicant. It could be said of this evidence that the complainant chose to tell her mother rather than lie to her and then have a doctor reveal that she had had sex.
(h) The complainant’s sister testified that she only once took the complainant to the applicant’s to stay overnight.
The evidence of the complainant’s sister is not quite as it is described by the applicant. The relevant exchange took place during cross examination:
COUNSEL:How many times did you take [the complainant] to [the accused’s] house where she stayed overnight and you would be picking her up the next morning.
WITNESS:Once.
COUNSEL:Just once?
WITNESS:Once.
Two things may be said about this exchange. The first is that it is apparent from the context that the occasion to which the witness is referring (ie, when the complainant stayed overnight at the applicant’s house and her sister picked her up in the morning) took place on the weekend of 27/28 June 2009. This is consistent with the complainant’s evidence (but for the difference as to whether it was the Friday or Saturday night, see [15] above) and with the jury’s conclusion as to the applicant’s guilt.
The second thing that may be said is that there is not necessarily any inconsistency between this aspect of the sister’s evidence and that of the complainant. The nature of the question put to the complainant’s sister and the answer given supports a conclusion that there was only one occasion when her sister dropped the complainant off at the applicant’s house, the complainant stayed the night and her sister picked her up in the morning.
The way the question was framed leaves open the possibility that on other occasions the complainant was dropped off at the applicant’s house and stayed the night, but was not picked up by her sister in the morning. Such a conclusion is also consistent with the sister’s evidence that she dropped the complainant at the applicant’s house on ‘a few’ occasions and that this occurred on the weekend.
Seen in this way the sister’s evidence is not markedly different with the evidence given by the complainant. When asked how often she went inside the applicant’s house the complainant replied ‘not very often. It was probably each weekend’. When asked how many times she spent the whole night at the applicant’s house the complainant replied that she could not remember but believed that it was on more than one occasion.
I am not persuaded that this aspect of the evidence assists the applicant’s case.
The following additional matters were set out in the applicant’s written submissions but were not the subject of any elaboration in oral argument.
(i) Lack of detail as to sexual act.
(j) The complainant agreed that she ‘told [the police officer who asked the questions in the complainant’s VATE statement] that it hurt because you had been told that sex hurts the first time you have it’.
(k) The complainant agreed the relationship was a friendship that did ‘not really’ change.
I am not persuaded that there is any substance in these points. As to the first matter I reject the proposition that there was a ‘lack of detail’ as to the sexual act. The complainant’s evidence canvasses the sexual act in sufficient detail.
The matter at (j) can hardly be said to be such as to oblige the jury to have come to a different conclusion and the last matter, (k), must be seen in the context of the evidence as a whole. The complainant’s evidence canvasses the development of her relationship with the applicant from text messaging; to the applicant kissing the complainant on the cheek; then to hugs and tongue kissing. The complainant’s evidence is that the applicant told her that he considered that she was his girlfriend, and the complainant saw the applicant as her boyfriend.
There was also evidence that the applicant had made a number of gifts to the complainant, including an iPhone and a SIM card. The complainant said that the applicant had given her the SIM card after her parents confiscated her phone, because she had run up large bills. Her sister confirmed that the applicant had come to her workplace and given her a SIM card to give to the complainant.
This was a case where the credibility of the complainant was of critical importance. The jury had the advantage of having seen and heard her give evidence and be cross-examined, albeit she was not physically present in the courtroom. There are some inconsistencies in the evidence given at the trial. To the extent that any of the matters raised by the applicant can be said to give rise to a doubt as to the guilt of the applicant the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt. On this basis no miscarriage of justice occurred.
In my view there is nothing inherently improbable or implausible in the complainant’s account of the applicant having penilely penetrated her in the circumstances she related in her evidence. It is also relevant to note that in her evidence the complainant did not say that she blamed the applicant for what had occurred. She said that she had started undressing while she was sitting on him and had removed his top. The jury might well have taken the view that she would not have said this if she were lying or mistaken about the act of sexual penetration. It was reasonably open to the jury on all the evidence to be satisfied beyond reasonable doubt that the applicant was guilty of sexual penetration of a child under 16 years of age.
In the circumstances it is unnecessary to consider the Crown’s submission that the applicant’s election to remain silent enlivened the approach espoused in Weissensteiner v The Queen[11] and nor is it necessary to consider whether this Court is entitled to have regard to the applicant’s silence in assessing the strength of the Crown’s case.
[11](1993) 178 CLR 217.
For the reasons given I am not persuaded that ground one is made out.
Ground two was not pressed and I need say no more about it.
Ground three concerns the trial judge’s failure to give a direction in accordance with Zoneff v The Queen.[12] At trial the Crown relied upon the applicant’s answers in his record of interview to support a submission to the jury that the applicant had minimised his involvement with the complainant. On appeal the Crown properly conceded that a Zoneff direction should have been given.
[12](2000) 200 CLR 234 (‘Zoneff’), 245 (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
Ground four concerns the trial judge’s failure to give a direction in accordance with R v Grech.[13] During the trial there was evidence of the applicant and the complainant ‘tongue kissing’ and engaging in ‘passionate kissing’. The Crown relied upon this evidence, as evidence regarding the nature of their relationship which was said to make the commission of the offence charged more probable.
[13][1997] 2 VR 609 (‘Grech’), 611-2 (Callaway JA); see also R v Vonarx [1999] 3 VR 618; R v BAH (No 2) [2005] VSCA 197, [12]-[15] (Warren CJ, Maxwell P and Harper AJA); R v VAS [2006] VSCA 159, [15]-[20] (Maxwell P, Vincent JA and Bongiorno AJA)
Although no exception was taken in respect of these matters at the trial the Crown conceded, properly in my view, that there was a need for a Grech direction in these circumstances. The Crown further concedes that in this case there was a risk that the jury might use this evidence to support a conclusion that the applicant had a sexual interest in the complainant and then use that finding as an indispensable link in a chain of reasoning towards guilt. On this basis the Crown concedes that the jury should have been directed that they could not act upon the evidence of uncharged acts unless satisfied beyond reasonable doubt that those acts occurred.[14]
[14]See HML v The Queen (2008) 235 CLR 334, R v Sadler (2008) 20 VR 69, [65] (Nettle, Redlich and Dodds-Streeton JJA).
Although no exception was taken in respect of these matters at the trial, the Crown concedes that a miscarriage of justice may have occurred and that the appeal against conviction should be allowed and a retrial ordered. I agree and would grant leave to appeal against conviction, and uphold the appeal.
As the appeal against conviction has been upheld the application for leave to appeal against sentence is otiose.
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