McDonald v The Queen
[2014] VSCA 80
•1 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0106
| ANTHONY MCDONALD |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | NEAVE, WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 February 2014 |
| DATE OF JUDGMENT | 1 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 80 |
| JUDGMENT APPEALED FROM | DPP v McDonald (Unreported, County Court of Victoria, Judge Hampel, 30 April 2013) |
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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr D Gibson with Ms J Cass | Victoria Legal Aid |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
Following a thirteen day trial in the County Court, the applicant, Anthony McDonald, was found guilty of three charges of maintaining a sexual relationship with a child under 16. The three complainants were daughters of friends of the applicant. The oldest and second oldest girls, EA and CA respectively, were adults by the time of the trial, whilst BA was still a child. Prior to the jury being empanelled, the applicant had pleaded guilty to charge 4, possessing child pornography.
On 24 May 2013, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 (EA) Maintaining sexual relationship with a child under 16 [Crimes Act 1958 s 47A] 25 years 6 years 1 year 2 (CA) Maintaining sexual relationship with a child under 16 [Crimes Act 1958 s 47A] 25 years 9 years Base 3 (BA) Maintaining sexual relationship with a child under 16 [Crimes Act 1958 s 47A] 25 years 9 years 1 year 4 Possess child pornography [Crimes Act 1958 s 70(1)] 5 years 1 year 6 months Total Effective Sentence: 11 years 6 months Non-Parole Period: 9 years Pre-sentence Detention Declared: 24 days 6AAA Statement (charge 4 only): 2 years Other orders: Disposal order, Forensic sample order. Registrable Sex Offender for life.
The applicant now seeks leave to appeal against his conviction and sentence.
Background to the alleged offending
The background to the alleged offences can be briefly described. The applicant was a longstanding friend of the complainants’ family and BA’s godfather. He attended social functions at their home, and baby-sat the complainants. The complainants stayed with him overnight at the various places where he lived, on a number of occasions. Charge 1 alleged four occasions on which EA was sexually abused between 2001 and 2003, when she was aged between eight and 11 or 12 years old.
Charge 2 alleged nine occasions of abuse of CA, involving fourteen separate acts, and occurring over two separate periods. The alleged abuse of CA occurred between 2001 and 2003, when CA was aged between six and eight, and between 2007 and 2008, when she was between 12 and 13.
Charge 3 related to five occasions of abuse of the youngest child, BA, between 2008 and 2010, when BA was aged between nine and 12, and in 2011, when she was aged 13.[1] The offending came to light when BA told her school counsellor about it in February 2012. As the trial judge noted, each complainant said that because of the closeness of the relationship between the applicant and their parents they did not think they would be believed and feared the consequences of disclosure.
[1]DPP v McDonald (Unreported, County Court of Victoria, Judge Hampel, 24 May 2013), [6].
In her evidence BA said that when she told the counsellor about ‘the sexual stuff’ with the applicant the counsellor had phoned CA, who was living interstate at the time of the phone call. The counsellor knew CA because she had previously attended the same school as BA. BA said to CA that she had told the counsellor ‘about what’s been happening with’ the applicant. When CA asked her why she had done so, BA said she thought it was the right thing to do. In her evidence, CA said she had told BA and the counsellor that she had also been abused but that she did not want to talk about it and did not particularly want to be involved. The counsellor contacted the girls’ mother. BA initially said that she did not want to inform the police but later went to the police with her mother and EA, who also said the applicant had offended against her.
The application for leave to appeal against conviction
The applicant relies on the following proposed grounds in relation to the application for leave to appeal against his conviction:
(1)The learned trial judge erred in ruling admissible evidence that the accused accessed child pornography.
(2)The learned trial judge erred in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 on the basis of ‘occasions’ which were insufficiently particularised.
(3)The learned trial judge erred in ruling admissible the video portion of the recording of the pretext conversation.
Ground 1
After the applicant was arrested, the police searched his premises and found adult pornography comprising 751 images and movies. They also found child pornography on his computer and on a USB stick. There were 33 category one images of children, not involving sexual activity, one category 2 movie and 12 category 4 movies, which depicted penetrative sex involving children. In their evidence, two of the complainants, EA and CA, said that the applicant had shown them adult pornography, but did not allege he had shown them child pornography.
At the trial, the prosecutor initially filed a tendency notice seeking admission of the evidence of the applicant’s possession of child pornography as tendency evidence. After that application was abandoned, the prosecutor asserted that this evidence was relevant and admissible for the limited purpose of refuting answers in the accused’s interview with police to the effect that he was only interested in adult women.
In the applicant’s record of interview, he gave a long answer denying that he had ever touched CA inappropriately and said:
I’ve never ever touched the kids inappropriately. Never. And I never will. I don’t want to. I’m happy with my life you know. I like women. I like – I like to have – be with older women, is the best way to put it.
He was asked about how he stored the images found on the computer, and how and where he had saved them and named them. He said they were ‘probably named all over the place’ but:
[W]here it says 13 year old’ but they’re not and it’s not because I was looking for 13 year old’. That’s because when - when you’re down - when I was downloading the video I liked that video. It’s a young woman. I wanted that. You - ( inaudible) that and then it gives you a thing of title and 13 year old but I have never taken that out because I am-got nothing to worry about. I wanted to change it.
He was then asked ‘so why are you accessing that sort of material?’. He explained how he had accessed the various sites and said ‘I’m not accessing 13 year olds. No’.
He was later asked about the search words he would use when looking for pornography and he said ‘I’d pick out Asian, 18 to 25’. He denied that he would search for images of girls under 18 and denied that his computer would show search words that ‘will say under 18’ and ‘I can’t think why I would have under 13. No’. He then said he had not meant to say under 13, but under 18, but that ‘I’ve had a few 17s in there but no … I don’t go for the young girls’.
Not surprisingly, defence counsel opposed the admission of evidence of the applicant’s possession of child pornography, arguing that it was not relevant to the alleged offences against EA or CA. It was submitted that neither of these complainants claimed that the applicant had shown them child pornography (though they said he had shown them adult pornography) and in any case the earliest dates at which it could be shown that the applicant had the three category 4 movies in his possession was in 2009, which was well after the time he was said to have offended against EA and CA.[2]
[2]Charge 1 (EA) related to offences committed between 2001 and 2003. Charge 2 (CA) related to offences between 2001 and 2003 and between 2007 and 2008. The category 4 movies were downloaded on 24 June, 13 December and 27 December 2009.
It was conceded that the applicant accessed three movies in 2009 that had potential relevance to the last two occasions on which the applicant was said to have offended against BA.[3] However such evidence was highly prejudicial and defence counsel submitted that if it were to be admissible in the context of charge 3 in relation to the last two alleged sexual acts committed against BA, charge 3 should be severed, because of the difficulties which the jury would experience in disregarding the evidence that the applicant had viewed child pornography when considering the charges relating to the other two girls.
[3]It was conceded by the Crown that it was only in the applicant’s possession by the time of the last two occasions.
Defence counsel further submitted that even if the evidence was relevant, the judge should exclude it under s 137 of the Evidence Act, because it had very limited probative value and created a danger that the jury would be unfairly prejudiced against the applicant. Defence counsel also submitted that such prejudice could not be remedied by a jury direction.
In ruling that the evidence was admissible, her Honour noted that the prosecutor did not seek admission of evidence of the applicant’s possession of pornography as evidence showing a general tendency to have a sexual interest in children. Nor was it proposed that the actual child pornography be shown to the jury.
The judge relied on a pre-trial ruling of Porter J in Tasmania v Martin No 2[4] in support of her ruling that the evidence was admissible solely to rebut the accused’s assertions that he was only interested in adult women. She sought submissions from counsel as to the appropriate terms of a warning to be given to the jury as to the use they could make of this evidence, and gave that warning both at the time the evidence was led and during her final charge.
[4]Tasmania v Martin No 2 (2011) 213 A Crim R 226, [71]–[76].
After the evidence was led, her Honour said:
Members of the jury, you heard Mr McDonald say in the course of the interview that he was interested in women, in older woman and also saying that he was not interested in girls or young girls. You also heard both in the interview itself and then just in the answers given by the informant that there was some adult and some child pornography found on the computer and on the USB stick.
I just want to tell you why that evidence is being put before you and how you’re to use it. From what you’ve just heard there’s a relatively small amount of child pornography images and a proportionately greater amount of adult pornography images that were found on the computer and the USB stick and you also heard at the time that Mr McDonald was first charged at the time of your arraignment that he pleaded not guilty to the three charges of maintain a sexual relationship with a child under 16. He pleaded guilty to a charge of possession of child pornography. So you don’t have to make a decision about whether he’s guilty or not guilty of the charge of possession of child pornography.
He’s pleaded guilty to that charge which relates to the images that Mr Hunkin’s just told you about that were found on the computer. But you've heard it because it’s been placed before you to assist you in evaluating the weight you give to the answers given by Mr McDonald in his interview about where his sexual interest is. Now, It’s a matter for you whether you think it's got any weight and how much weight you give to it, but it’s just one piece of evidence that you can take into account in determining what weight you give to those answers and what weight you may want to give to his answers generally in the interview. So that’s the positive or affirmative way in which you can use the evidence if you choose to. I’m not telling you you should or how much weight you should give to it because that's your decision making domain. I’m just framing the context for you.
However I must warn you also there are ways in which you cannot use that evidence of child pornography. First of all, it’s important that you don't say because I know that he had some child pornography in his possession, I know from the answers in the interview that he looked for it at times on the computer, you can’t say therefore that means he’s guilty of these charges because the charges he’s facing are different type of charges.
So you can’t say that because he’s pleaded guilty to child pornography he must be guilty of these charges or because I disapprove of people who have or possess child pornography that I’m going to convict him of everything he faces because they’re different charges he faces and you must determine his guilt of these charges based on whether you're satisfied he performed the acts that are alleged in the charges.
It’s important that you don’t say to yourselves, well, because he has admitted, he was found in and admitted being in possession of child pornography that he’s the kind of person to commit the offences charged, because that would mean you’re thinking about the sort of person, assumptions about the sort of person who possesses these type of images rather than whether the evidence in this case satisfies you that he’s committed on at least three separate occasions one or more sexual offences against each one of these three children.
So it’s there for that purpose of helping you evaluate the answers in the interview but make you don’t allow it to infect your thinking and say, well, because of that I’m going to convict him of everything regardless of the evidence, or you don’t say he must have done it because he’s got child pornography. That’s improper and unfair reasoning.
You wouldn’t want yourselves or anyone you know to be, because they’ve one bad or discreditable thing, to then be thought to be completely bad and discreditable. That’s not the case at all. So you’ve got to be very careful and make sure it’s put just into that category where you can use it and not use it for any improper purpose.
Her Honour gave very similar directions in her jury charge.
Before this Court, the applicant contends that the judge should not have admitted this evidence, because of the danger that the jury would use the possession of child pornography as evidence of the applicant’s tendency to sexually abuse children. The applicant argued that, although her Honour had warned the jury against tendency reasoning, the highly prejudicial nature of the evidence made it likely that they would disregard that warning. Further, the applicant argued that possession of child pornography had limited probative value, because there was no evidence that the applicant had shown child pornography to the complainants, or that he was in possession of it at the time he committed the relevant offences.
Conclusion on Ground 1
Evidence of the possession of pornography may be admissible in a prosecution for sexual offences where the applicant’s use of the pornography is relevant to the alleged offending, for example where the pornography is shown to a complainant, as part of the process of ‘grooming’ or acclimatising him or her to perform sexual acts. For example, the evidence that the applicant showed adult pornography to EA and CA might well have been admissible as ‘relationship evidence’ of an uncharged act which placed the alleged offending in a realistic context.[5] Evidence of the possession of pornography may also be proof of the occurrence of the substantive sexual offence, for example where the accused films or photographs the sexual acts involving the alleged victim.[6]
[5]See the comments to this effect in MRO v R (2010) 29 VR 527, 545–546 [73]–[77]. Alternatively, the applicant could be charged with an offence under Crimes Act 1958 s 47, committing an indecent act in the presence of a child, if the pornography were shown to the child.
[6]IRJ v The Queen [2011] VSCA 376.
The authorities indicate that evidence that an accused was in possession of child pornography is not admissible as evidence of a general tendency to have a sexual interest in children, for the purpose of showing that it is more likely that the accused has offended against a particular child. In MRO v The Queen,[7] this Court held that evidence of the applicant’s possession of pornographic photographs which he had taken of his daughter was inadmissible in support of charges relating to sexual offences against two other complainants. That conclusion was based on s 398A of the Crimes Act 1958, which permitted the admission of propensity evidence if the court considered it just to do so, despite any prejudicial effect it might have on the person charged with the offence. Section 398A has now been replaced by ss 97 and 101(2) of the Evidence Act 2008 which together provide that tendency evidence is inadmissible unless it has ‘significant probative value’ which ‘substantially outweighs any prejudicial effect it may have on the accused’.[8]
[7]MRO v R (2010) 29 VR 527.
[8]For a discussion of the application of these provisions CGL v DPP (2010) 24 VR 486.
Cases decided under these provisions suggest that possession of child pornography will usually not be regarded as having significant probative value in relation to alleged sexual offending against a particular child, because the fact that an accused has a general interest in viewing pornographic images of children does not mean that the person will act on that interest, by abusing a particular child.[9] Moreover, even if the evidence is regarded as having significant probative value, in most circumstances its prejudicial effect is likely to substantially outweigh its probative value. Presumably that is the reason why the Crown abandoned its attempt to have the evidence of the applicant’s possession of child pornography admitted as tendency evidence.
[9]The cases are helpfully reviewed by Porter J in Tasmania v Martin No 2 (2011) 213 A Crim R 226, [43]–[63].
In this case, however, the evidence was not admitted for that purpose, but in order to refute the applicant’s claim that he was only interested in adult women.
A cautious prosecutor might have sought the exclusion of the questions and answers in which the applicant claimed he was only interested in adult women from the record of interview. If that had been done, it would have been unnecessary for the Crown to challenge the applicant’s claim that he was only interested in adult women by calling evidence that he had downloaded child pornography images. Presumably, defence counsel did not seek exclusion of those answers, because he considered that they might assist the applicant.
However, I do not consider that her Honour erred in finding that the evidence was admissible to rebut the accused’s statement that he was not interested in children and to raise doubts about the truthfulness of the accused’s statement to the police. In my opinion, the judge was not required to exclude that evidence under s 137 of the Evidence Act 2008, because its probative value was not outweighed by unfair prejudice to the accused. The applicant’s denial was central to the task of assessing his credibility. The reference to unfair prejudice refers to the risk that the jury will use the evidence for impermissible purposes.
If the jury had been shown the child pornography, there was a real risk that the disgust created by viewing the images would have unfairly prejudiced them against the applicant. But the Crown relied only on a description of the images. The judge carefully warned the jury against using tendency reasoning and it must be assumed that they took account of that warning.[10] The remarks made by Porter J in Tasmania v Martin No 2 are apposite:[11]
As to the balancing exercise under s 137, the probative value of the evidence, in its identified use, is high. It puts the accused’s responses to police in their proper context and could have a weighty impact in the assessment of his credibility in relation to facts in issue. Whilst the evidence is undoubtedly prejudicial in the sense that it might give rise to irrational and emotional responses, and have a corresponding impact on the reasoning process, I take the view that the probative value of the evidence, limited in its use as it will be, is not outweighed by the danger of unfair prejudice. The danger of unfair prejudice is significantly lessened by the fact that the Crown’s purpose can be achieved by evidence describing the material, rather than the tender of the images themselves. Even graphic descriptions will not carry the same capacity to invoke irrational and emotional responses as the images themselves. Further, any prejudice is likely to be properly ameliorated by the directions as to the limited use the jury may make of the evidence, which will no doubt be given: TKWJ v R.[12]
[10]As to juries being trusted to have regard to directions see R v KRA [1999] 2 VR 708, 716 (Winneke P).
[11]Tasmania v Martin No 2 (2011) 213 A Crim R 226, [75].
[12](2002) 212 CLR 124, 153 [90] ( McHugh J).
I would grant leave to appeal on this ground, but dismiss the appeal.
Ground 2
Section 47A(1) to (3) of the Crimes Act 1958 ( ‘the Act’) provides as follows:
Persistent sexual abuse of child under the age of 16
(1) A person who persistently sexually abuses a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.
(2) To prove an offence under subsection (1) it is necessary to prove—
(a) that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
(b) that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
(2A) It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
(3) It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
At the trial, counsel for the accused submitted that the evidence of CA[13] relating to the first occasion relied upon by the Crown was no more than evidence of a course of conduct. He also submitted that, in the case of BA, evidence of acts relied upon to show three occasions of offending did not adequately identify them, and that the acts relied upon for a fourth occasion also amounted only to evidence of a course of conduct and that in respect of another occasion the evidence was too unreliable and unsafe to identify an occasion. The argument relating to unreliability related to an occasion when the applicant was said by BA to have touched her groin area in the presence of CA, whilst also touching CA (I describe this as the ‘double touching incident’).
[13]In her ruling on the sufficiency of evidence of specific acts relied upon in support of Charges 1 and 3, T 498, her Honour incorrectly referred to the evidence of the oldest complainant. However it is clear from the Ruling that she is referred to Charge 1, which related to EA.
The learned trial judge referred to the relevant evidence of EA and BA. She ruled that in the case of EA, all four occasions were capable of being put to the jury and that in the case of BA, the question whether CA’s evidence that she saw the accused touching BA’s groin was affected or influenced by her discussion with BA was a matter for consideration by the jury.
In support of ground 2, counsel for the applicant submits that both EA and BA[14] gave evidence of a generalised course of sexual misconduct, rather than describing sufficient details of the circumstances surrounding the alleged incidents of abuse to permit identification of each ‘occasion’ on which they were abused by the applicant. He contends that the evidence in this case provided no more certainty about the occasions relied upon in support of the charge than the evidence which this Court held in R v SLJ[15] was insufficient to establish that there were three separate occasions on which the applicant committed a relevant offence against the particular complainant. He submits that in their evidence EA and BA said that the applicant ‘would’ abuse them in particular ways, an expression which simply described an account of what routinely occurred and did not identify the particular offending acts on which the Crown relied to establish the offence of ‘persistent sexual abuse’.
[14]The grounds of appeal do not differentiate between the complainants, but at the hearing counsel for the applicant conceded that the ground could not be made out in relation to CA.
[15](2010) 24 VR 372. He also relied on the decision of this Court on an interlocutory appeal in REE v The Queen [2010] VSCA 124.
In deciding whether this ground of appeal is made out, I have only described the evidence of EA and BA to the extent necessary to explain my reasoning. Despite the use of pseudonyms to describe the applicant and the complainants, a description of the various acts of abuse may well create anxiety and distress for the complainants and their family. It is therefore desirable to limit that description as much as possible.
The charges relating to EA identified four separate occasions on which the accused committed indecent acts against EA, between specified dates. On the second and third occasions two different acts of indecency allegedly occurred. The first three occasions were said to have occurred at the applicant’s home in Glenroy, whilst the last occurred at the applicant’s home at Patchewollock.
The first indecent act relied upon was that the applicant exhibited pornography in EA’s presence. EA was asked to tell the court about an occasion when she was visiting the applicant overnight. She said that she went to his house and they would get videos. She then referred to an occasion at night when she was lying on the couch and the applicant was also sitting there and she said that all of a sudden there was pornography on the TV. She said she was embarrassed and tried to look away, but the applicant told her that, ‘It’s okay you can watch’. EA said it was strange and she just tried to look away.
The second occasion was said to have occurred when she went to the applicant’s house alone and slept in his bed. EA initially said that when she visited the applicant alone and stayed overnight in his Glenroy flat he regularly told her to sleep in his bed. He was always naked when he got into bed and there was usually pornography playing on television. He would always ask her to touch his chest and ‘would touch mine on top of my pyjama top sometimes and sometimes underneath’. When asked how frequently this occurred she said it was probably two to three times a month, but could not be more precise. She said that he had touched her in her breast area over her clothing more than five times and the same frequency applied to him touching her breast area under her clothes.
The place and period of the offending was identified and the complainant was clear that that this particular offending happened ‘most of the time’ when she went there alone, but not when her sister was present. Although that part of her evidence may be regarded as only a general account of sexual misconduct, EA went on to describe a specific occasion when she slept in the applicant’s bed. She said that: ‘we obviously went to bed, he undressed, got into the bed naked’. She said that she was wearing pyjamas. She was asked whether he had touched her chest over her clothing or under it and said that on that occasion the applicant touched her chest over her clothing.[16]
[16]The Crown alleged that the first two occasions occurred between 1 January 2000 and 6 April 2003.
When asked whether there was another occasion at the applicant’s Glenroy flat that she wanted to talk about, EA described an occasion on which the applicant touched her chest under her clothes and then put his hand on her crotch. She told him not to touch her and said she wanted to go home.
The complainant was asked how frequently the applicant had touched her vagina when she had visited his Glenroy flat and she said that this had happened only once, and that this was on the last occasion when she stayed at the flat.
Finally, EA referred to a specific incident when the applicant exposed his penis to her when he was living in a house in Patchewollock. She described the event in some detail.[17]
[17]The Crown alleged that the fourth occasion occurred between 7 March 2003 and 31 December 2005.
The judge directed the jury that they had to be satisfied beyond reasonable doubt that the evidence of EA established three separate occasions of abuse and that each was ‘an identifiable occasion and not simply a description of a course of conduct of something happening on a number of occasions over time’. Her Honour also warned the jury that they had to be unanimous as to the occasions relied upon to establish the offence.
In my opinion, it was open to the judge to leave that evidence to the jury and for the jury to reach the conclusion that there were four separate occasions of abuse on the basis of the evidence which is set out above.
BA
The charges relating to BA identified five separate occasions of offending.[18]
[18]In their written submissions, the parties describe four occasions relied on by the prosecution for BA. The trial judge’s charge to the jury describes five occasions. Before this Court, the respondent handed up a document identifying five occasions.
The first occasion relied upon was based on evidence given by BA and CA. BA said that she was at the Glenroy flat with CA and ‘he would … do it at the same time.’ When asked to explain, she said that he ‘would’ touch her and CA at the same time.
Although this was a general account, BA went on to describe a specific incident which she said occurred when she was in grade 2 or 3. She thought she was aged eight or nine, because that was when she began staying overnight away from home. She said that they were both lying on a couch with their legs over the applicant, when he touched each of them indecently. She was then asked when something like that had next happened and said, ‘Well. It really happened every time we went there’.
The prosecutor disavowed reliance on the evidence of BA to establish that this incident had occurred, but relied on the evidence of CA that BA was abused when she was present. CA described an occasion on which the applicant was watching a movie with her and BA and both of them had their legs over the legs of the applicant. She said that the applicant moved her foot as if to tell her to look and that he had his hand on BA’s groin and later moved it underneath BA’s shorts. CA said that this incident occurred in the Glenroy flat and she could not recall how old BA was at the time.
The applicant submitted that it was not open to the jury to find that this incident had occurred. He relied on the fact that CA said this incident had occurred at Glenroy when BA would only have been three to four years old. Although BA had not specified where this act had occurred, she had said it was when she was seven or eight years old. Further, CA had not mentioned this incident when she made her first and second statement to the Canberra police,[19] but only when she made her third statement to police in Melbourne, while she was staying with her mother and her sisters.
[19]The first statement was made on 28 February 2012 and the second on 7 March 2012. Both were made to the Canberra police. The third statement was made in Melbourne on 15 May 2012.
During cross-examination, it was put to her that she had fabricated this incident after talking to BA. In cross-examination, she agreed that she had spoken to both BA and EA but said that she had not talked ‘about anything that’s happened because I knew I wasn’t allowed to’.
In cross-examination, BA said that she had told CA that the applicant was doing ‘sexual stuff’ to her when she was younger but had just told her ‘general stuff’ and not what had happened. In my opinion, her Honour correctly ruled that it was open to the jury to consider whether they were satisfied beyond reasonable doubt that the ‘double touching incident’ relied upon as one of the occasions on which BA was abused had actually occurred, or whether each girl’s statement had been influenced by the contents of the statement of her sister.[20] Her Honour gave the jury a warning about this matter. She said:
Ultimately it is a matter for you to determine whether you think all or any of the complainants have colluded. That is, put their heads together and made a deliberate decision to tell lies, to make false accounts, to make false allegations about Mr McDonald. Or whether there has been any innocent contamination, whether by reason of the circumstances in which the allegations came out, that one or more of the complainants has come to believe that what one girl said had happened to her, had also happened to the other. That is the idea of innocent contamination.
In considering this you would have to look at all of the evidence including the evidence of the earlier disclosures by [CA] and by [BA] to other people. So the question of collusion or innocent contamination is not whether there is an abstract or hypothetical possibility but whether, on the evidence, it is a realistic possibility. It is of course consistent with what I have been saying about the fact that prosecution has to prove its case, not for the accused to prove to you, or for you to be satisfied, that there was collusion. Rather, can you exclude the reasonable possibility of collusion or innocent contamination between the three, in the accounts they gave, of what happened to them.
If you cannot exclude the reasonable possibility that there has been collusion or innocent contamination, then you should not use this coincidence line of reasoning. You should not use the evidence of the pre-cursor conduct with one child in support of your assessment of the truthfulness of the evidence of any other child. It is only if you think that you have excluded the reasonable possibility of innocent contamination or collusion that you can use the evidence of this pre-cursor conduct in the way that I have been describing. Ultimately, it is for you on all of the evidence, this is really just one strand of one possible line of reasoning, to make your decision about that.
[20]The issue in this case is not whether the probative value of the evidence had to be assessed for cross-admissibility purposes. In such circumstances, Murdoch (A Pseudonym) v The Queen [2013] VSCA 272 requires the court to consider whether there is a reasonable possibility of collusion or contamination. Note that in Murdoch there was explicit evidence from the appellant’s third daughter that she had been pressured by her sisters, the two complainants, to give false evidence in support of their allegations.
The question then arises whether there was sufficient evidence on which it was open to the jury to find that there were at least two other occasions on which the applicant offended against BA.
The applicant did not argue that the complainant’s evidence relating to an indecent act, which occurred on an occasion on which the applicant was alleged to have masturbated in the presence of BA between 5 January 2008 and 16 October 2010 (while he was living at Dallas), was insufficiently specific. However he submits that the evidence of the other occasions relied upon by the Crown was insufficient to support BA’s allegations.
For another occasion, the Crown relied on BA’s evidence that, while the applicant was living in Dallas, the applicant touched her vaginal area. In her VARE, the complainant said that the applicant began by massaging her when she was staying with him and later went on to touch her more intimately. She was asked whether there was a time when the touching happened differently in a way that she remembered. She said that when she was 11 or 12 he ‘would’ massage her, squeeze her bottom and touch and play with her vagina. Again she answered the question by reference to the applicant’s general practice of touching her bottom and vagina.
She was then asked whether he had touched her on the outside or inside and she said that it was on the outside. She was asked whether she understood what she meant when the interviewer meant by ‘outside’ and she said that she did. The questioner made some efforts to identify the particular occasion on which this incident occurred, by asking whether this was the first time she remembered him touching her vagina and she said it was. She could not recall where the applicant was living at the time, but said that she thought she was on his waterbed.
The applicant contended that because the complainant had already described massaging behaviour and the applicant ‘touching and playing’ with her vagina she had simply described a generalised course of conduct, from which the alleged occasion was insufficiently differentiated from a more general course of conduct. Thus, the applicant argued, it was not open to the jury to conclude that this was one of the occasions on which the complainant was abused.
Although the complainant agreed with the questioner that this was ‘the first time’ the applicant touched her vagina and said he had touched her on the outside of the vagina, her answer was in response to a question about an occasion which was ‘different’ from others. With some hesitation, I accept the applicant’s submission that her evidence did not sufficiently particularise the occasion on which this event occurred.
On another two occasions, the applicant was said to have touched BA’s breasts and lingually penetrated her. One occasion was said to have occurred the first time that the complainant went to the applicant’s flat in Broadmeadows on her own. The complainant described her conversation with the applicant on the particular day, the position she was in when he began penetrating her, and the fact that she went to get a drink after lying on the bed. She said that when the applicant stopped, she asked to leave.
On another occasion, described as the ‘most recent time’ or ‘the last time’, BA said she had walked to the applicant’s flat. She said she was lying on his bed and watching the news on TV, and the applicant ‘would’ massage her legs and put his hand down her top. In response to an earlier question, BA had described this incident in greater detail. She said that the applicant said it would be easier if she took her top off or her pants off. She said he then penetrated her with his tongue and touched her breasts. She said this had occurred about three, three and a half or four months ago when she had gone to the applicant’s house after school. Although some of BA’s answers referred to a course of conduct rather than a particular occasion of abuse, I consider that the answers she gave were well capable of being interpreted as references to two specific occasions, the first being when she went to his Broadmeadows flat alone and the second being the last time she went there.
There is no doubt that in some of her evidence, BA described a general pattern of sexual abuse, rather than a particular event. However, I do not consider that her use of the word ‘would’ necessarily required the jury to conclude that her descriptions of the abuse never described a particular past event. In common parlance, the use of that word may refer to a specific past event, to a regular course of conduct, or to both (for example a statement that a person ‘would’ visit on Wednesday, could be taken to refer to one particular Wednesday or to multiple Wednesdays.) A child describing an event cannot be expected to use the word with the same degree of precision as a lawyer would use the same word. Read in the context of the whole of the complainant’s evidence, it was open to the jury to conclude that this word was sometimes used by BA to describe both a course of conduct and a particular instance of abuse.
To summarise, I consider that there were at least three and possibly four occasions on the basis of which a jury could conclude beyond reasonable doubt that the applicant sexually abused the complainant. These were the double touching incident, the act of masturbation in BA’s presence (which the applicant accepted could be regarded as a particular occasion), and the first and the final incidents of breast touching and lingual penetration. Moreover, even if there was insufficient evidence relating to the double touching incident, there were three other particularised occasions on which the Crown was entitled to rely.
If her Honour wrongly left one or more occasions to the jury that were not adequately particularised, there is a theoretical possibility that the jury might have held the applicant guilty of persistent abuse on the basis of that evidence, rather than on the basis of the occasions which I consider were sufficiently identified.
I can find no direct authority on the question whether, in circumstances where the evidence of a complainant adequately identifies three or more occasions of abuse, the fact that the judge left other evidence which may not have adequately identified particular occasions to the jury requires that the jury verdict to be set aside. Both counsel argued ground 2 on the basis that if there were at least three occasions which could be left to the jury for the purposes of deciding whether the applicant was guilty of an offence under 47A, ground 2 would fail.
I consider that to be an appropriate way to approach the issue. Section 47A creates a single offence of persistent sexual abuse, which is made out by showing that three relevant acts occurred.
Because the offence was a single offence (albeit an offence which arose from the occurrence of three separate occasions of abuse) the situation is not one of latent duplicity, such as arose in R v Trotter.[21] In Trotter, the complainant unexpectedly gave evidence at the trial of the accused of two acts of indecent assault. The accused had been charged with only one count of that offence, and the Crown never specified which of the two acts it relied upon. The Court of Criminal Appeal held that the conviction should be set aside, because it was impossible to know whether the jury was unanimous as to which of the two alleged indecent assaults provided the basis for their verdict.
[21][1982] 7 A Crim R 9 (‘Trotter’).
In this case, the Crown specified the acts on which it relied and the jury must have been unanimous that three of the specified acts occurred. Counsel for the applicant did not contend that Trotter applied to this situation. Nor do I consider that it should be extended to apply to these circumstances.
If it were held that the verdict must be set aside because some of the occasions relied upon were not adequately particularised, such reasoning would apply regardless of the number of occasions specified, simply because one inadequately identified occasion was left to the jury. The judge gave clear directions to the jury that the offence was only made out if they were satisfied beyond reasonable doubt as to the occurrence of three separate occasions. The applicant was left in no doubt as to the nature of the case against him.
In passing, I note also that if ground 2 were made out, resulting in the setting aside of the applicant’s conviction for an offence under s 47A, sub-section (5) would apply, permitting the court to substitute convictions for various indecent assaults and lingual penetration of the applicant.
For the above reasons, I would grant leave to appeal on ground 2, but dismiss the appeal on this ground.
Ground 3
After EA was interviewed by the police, she made a pretext telephone call to Mr McDonald in an attempt to obtain admissions from him. In their conversation, she spoke in general terms about what had happened between them and said that she was concerned that this might have happened to her sisters. Mr McDonald said he regretted what happened a long time ago and that he was sorry and denied that he had done anything to her sisters. The police made a video and an audio recording of the conversation and the prosecutor sought to have both the video and audio recorded tape of the telephone call shown to the jury. Defence counsel objected to the playing of the video recording, arguing that it was unfair to show it because it was the answers which the applicant gave to EA’s questions, rather than the questions, which were relevant and that the video recording showed EA in a highly emotional state which could prejudice the jury against the accused.
The judge rejected the defence submission, observing that:
[I]f there is a means to see the demeanour, as well as to hear the voice of [EA] as she makes the phone call, then, all other things being equal, that should also be seen – can allow the jury to better assess the demeanour of the witness and the tenor of the conversation, particularly as [EA] is at times saying, ‘Thank you for being honest’. Her demeanour when she says that is clearly something that can be taken into account in evaluating the general tone.
The applicant now contends that a substantial miscarriage of justice occurred, because the jury should not have been shown the video recording of the pretext conversation. The applicant’s counsel submits that EA was shown in an emotional state when she made the call and that the jury’s view of her in that state was likely to be unfairly prejudicial to the accused. Counsel also submitted that the process was unfair because there was no visual record of the applicant ‘s response in replying to EA’s questions.
Counsel for the respondent argued that EA’s distress was readily discernible from the audio record of the conversation, and that in any case the jury were unlikely to be any more influenced by a visual record of the complainant when she made the phone call than by her demeanour (including any distress she exhibited) when she gave evidence at the trial. It followed that the jury’s access to the video of the complainant making the phone call did not give rise to a substantial miscarriage of justice because it would have added little, if anything, to their assessment of the complainant’s demeanour and the credibility of the evidence she gave at the trial.
Conclusion on ground 3
The judge was strictly incorrect in saying that the video recording was relevant to the demeanour of the witness, as EA was asking a question of the applicant, rather than giving evidence at the trial.
Police are required to record interviews with accused people and VARE tapes of children are admissible as evidence in chief. In these circumstances video‑recording helps to ensure that the questioner has behaved fairly. In both those situations, the response of the person answering the questions, as well as those of the questioner, is recorded and shown to the jury. In the case of a pretext conversation the response of the person who is questioned is not shown.[22] However, in my opinion the fact that EA was shown making the phone call, rather than simply heard, was not unfairly prejudicial to the complainant and it was not an error for the judge to refuse to exclude it in the exercise of her discretion under s 135(a) of the Evidence Act 2008. I have listened to the audio and then viewed the video of the pretext conversation separately. The tone of the questioning and any distress exhibited by EA was readily discernible from the sound recording. The video did show EA’s facial expression when she was close to tears, but also showed her looking reasonably composed during parts of the conversation. Moreover, even if the video recording brought home the complainant’s distress more vividly than hearing an audio tape would have done, any distress experienced by EA would have been apparent and observed by the jury at the trial. In these circumstances, the showing of the video was not unfairly prejudicial to the applicant.
[22]Although it could be shown through the use of the Skype program.
I would grant leave to appeal on ground 3, but dismiss the appeal.
The application for leave to appeal against sentence
The applicant relies on the following grounds:
(1)The sentence is manifestly excessive having regard to the circumstances of the case and current sentencing practices.
(2)The learned sentencing judge erred in overstating the duration of the offending.
(3)The learned sentencing judge erred in relying on evidence of a particular occasion where it was unsafe to do so.
I will deal first with the allegations of specific error. In support of ground 2, the applicant argues that the judge erred by adopting the ‘between dates figures’ as fixing the actual duration of the offending rather than its maximum potential duration. It was argued that in the case of EA, the judge described the offending as lasting three to four years, whereas EA’s evidence referred to offending at the Glenroy flat over a two year period and to a subsequent single occasion at Patchewollock, when she was in grade 5 or 6. In relation to CA, the judge found that the offending occurred from 2001 to 2003 (at Glenroy) and then from 2007 to 2008 (at West Meadows), but CA was unable to identify any of the offending at the Glenroy flat by reference to her age and did not specify any duration.
In my opinion this ground is not made out. Although there was some imprecision in the dates, it was open to the judge to take the view that the offending had occurred over a very significant period and involved multiple occasions. At the plea, defence counsel conceded that the offending occurred over a ten year period. Moreover, even if this complaint were made out it would not, in my view, result in the imposition of a lesser individual sentence or lesser total effective sentence.
In support of ground 3 the applicant submitted that it was not open to her Honour to sentence the applicant on the basis that the ‘double touching’ incident had occurred. I have already addressed this in the context of the claim that the jury could not have concluded beyond reasonable doubt that this event had occurred. This ground of appeal is not made out.
Finally, under cover of ground 1, the applicant contends that the sentence was manifestly excessive. The total effective sentence was at the higher end of the range for this offending and the non-parole period of nine years amounted to approximately 78% of the head sentence, though nothing was made of this in submissions. However, in my opinion, neither the head sentence or the non-parole period were manifestly excessive. In reaching that conclusion, I have had regard to the remarks of this Court in Director of Public Prosecutions v DDJ.[23] In that case, which was decided before abolition of the principle of double jeopardy, the respondent, who had pleaded guilty to a single offence equivalent to ‘persistent sexual abuse of a child under 16’,[24] was re-sentenced to a term of seven years’ imprisonment for sexual offending with a 14 year old girl which extended over a five months period. The Court drew attention to the seriousness of the offence and the maximum penalty of 25 years which applied to it.
[23](2009) 22 VR 444.
[24]Then described as ‘maintaining a sexual relationship’.
The offending in this case was particularly heinous. Charge 2, which attracted the base sentence of 9 years, involved 9 separate occasions of abuse. The accumulation orders relating to charges 1 and 3 were modest. On charges 3 and 4, the applicant fell to be sentenced as a serious sexual offender
The complainants, who were very young when the offending occurred, were each abused over a significant period of time. The applicant blatantly exploited the trust imposed on him by the children and their parents. He manipulated the girls and took various steps to discourage them from telling their parents about what had occurred. The offences are likely to have a lasting impact on the victims. Her Honour took account of all relevant mitigating factors. The appeal against sentence is dismissed.
WEINBERG JA:
I agree with Neave JA.
COGHLAN JA:
I also agree with Neave JA.
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